New Thai Surrogact Laws

New Surrogacy Laws in Thailand

By Joe Lynch                     

Australian Specialist Family Lawyer

Senior Consultant Foreign Lawyer

Lanna Lawyers, Thailand

lynchlaw.net.au@gmail.com

Thailand's reputation as a surrogacy centre is well known.  Thailand’s medical and hospital services are world-class and many of the world's leading IVF clinics are located in Bangkok and other large Thai cities.  Thai surrogate mothers are well regarded because of their healthy lifestyle and there caring dispositions.

All of these factors have made Thailand a favoured destination for surrogacy and IVF procedures.  With the trend for people to enter into permanent relationships later in life, the inability to have children is increasing. Childless couples are increasingly looking to Thailand and elsewhere to allow them to have children through IVF technologies available where are no laws prohibiting this and it is also affordable. In Australia it was recently reported by the Australian Broadcasting Commission that IVF procedures increased by more than 40% over a two-year period. It appears to be continuing to increase exponentially despite draconian legislative regimes. The demand for surrogacy and other artificial conception procedures is rapidly increasing throughout the world.

Existing Thai Surrogacy Laws

There are presently no laws governing surrogacy in the kingdom of Thailand.  Surrogacy is neither permitted nor prohibited by law.  At the present time, under the Thai Civil and Commercial Code where a child is born to an unwed mother she is the sole person who has legal rights in respect of that child. Where a child is born to a mother who is married she and her husband are the only persons who have legal rights in respect of the child

Under section1546 of the Thai Civil and Commercial Code the father of a child who is not married to the mother at time of birth has no parental rights even if he is recorded on the birth certificate and/or can prove that he is the biological father with DNA testing.

Under section 1547 there are three exceptions to section 1546.

These are

•             There is a subsequent marriage between the parents.

•             There is a subsequent recording of the father’s status confirming his rights and obligations at the Amphur (local government) office.

•             There is an order of the Court confirming the father’s rights and obligations.

Registration at the Amphur office is uncertain and is not permitted until the child is at least seven years of age.

As there are no Thai laws relating to surrogacy so it has been difficult to convince a court to make an order although orders have been made by the consent of the parties.

Section 1546 of the Thai Civil and Commercial Code provides

“A child born of a woman who is not married to a man is deemed to be the legitimate child of the woman”.

This provision precludes the possibility of any parenting rights being vested in the egg donor.

The absence of laws governing surrogacy has created a legal and ethical quagmire.  Recognising this, the Thai Cabinet  in 2010 approved draft legislation for the protection of children born through surrogacy, for the protection of surrogate mothers and to regulate the legal relationships between commissioning parents and surrogate mothers. The proposed legislation was contained in the Assisted Reproductive Technologies Bill, bill number 167/2553 approved in May 2010 but the legislation was never enacted.

Further controversy concerning surrogacy erupted in August 2014.  At that time, in the baby Gammy case, an Australian couple, including the biological fathe, abandoned one of a set of twins who was born severely handicapped.  It subsequently emerged that the father had convictions for  paedophilia offences.  Shortly afterwards it was discovered that a Japanese man had fathered of a large number of children through surrogacy. The whole issue was sensationalised by the media and subsequently a specialist IVF medical practitioner has been charged with a number of serious offences. The Thai government, being the current military junta, announced that it would introduce legislation to regulate surrogacy.  In November 2014, Thailand’s National Legislative Assembly approved the draft surrogacy law in the first reading - and appointed an 18-member committee to review the draft. Only a few members voted no and a couple abstained. The Thai Medical Council has again been involved in the process and at the present time it is understood that it is proposed that surrogacy arrangements will be permitted where the intended parents are genuine, presumably this means that they are unable to have children in the conventional way, that altruistic surrogacy is not available to them and they are married. It is not clear whether the legislation will permit surrogacy arrangements will do a factor couples and same sex couples. Discussions are still taking place as to the precise form of the legislation and it seems that any new laws will be some time off being enavted. It is also proposed that commercial surrogacy will be banned. What is not known is how narowly the expression “commercial surrogacy” will be defined.

There is certainly a need to regulate the surrogacy industry in Thailand through appropriate legislation. There needs to be a screening of both intended parents and surrogates mothers before embarking on any surrogacy arrangement. There also needs to be transparency in the arrangement between the intended parents and the surrogates mother. At the present time there has been instances of unscrupulous agents skimming payments agreed to be paid to the surrogates by the intended parents in addition to collecting an agreed fee. Finally, there needs to be appropriate protection provided to the intended parents, the surrogates mothers and the children born throgh sirrogacy arrangements.

However, the  present position is, however, that there are no laws in Thailand governing surrogacy.

Given that there will be laws governing surrogacy in Thailand in the foreseeable future it is worth considering what was proposed in the 2010 draft Bill as any new law is likely to follow a similar pattern.

The main provisions relating to surrogacy in the draft Act were as follows:

Surrogacy procedures were  to be subject to the following conditions (Section 21)

·        The commissioning legal parents must not be able to have a child and desire to have a one by using another woman as a surrogate mother. The commissioning parents must be in ready both physically and mentally to be parents to the child to be born.

·        The surrogate mother must not be a parent or a child of either of the commissioning parents.

·        The surrogate mother must have had a child before and, if she is married, her husband must consent. This is clearly important in reducing the likelihood that the surrogate and her family might claim rights over the child when it is born.

                              It was proposed that the Medical Council of Thailand would subsequently announce additional terms and conditions as were appropriate after consideration and approval by the Child Protection Committee to be established under the legislation.

Two types of surrogacy processes were to be permitted as follows (Section22):

·        where the fertilised embryo is produced from the parents’ own egg and sperm with intention to use a surrogate mother; and

·        where the fertilised embryo is produced from either of the commissioning parents’  sperm or egg and either the sperm or egg of a donor with the intention of using a surrogate mother as a carrier, provided that use of an egg provided by  the surrogate mother was to be  prohibited.

The terms, conditions and means of payment of the costs and expenses for the support and maintenance of the surrogate mother during pregnancy and immediately after birth were to be determined by the Medical Council with the approval of the Child Protection Committee (Section 24).

Parentage disputes arising from surrogacy in Thailand

Surrogacy arrangements are usually set out in a contract or agreement entered into between the commissioning parents and the surrogate mother. Notwithstanding this the legal status of such a contract or agreement is doubtful and agreements are often ambiguous.  Often little can be done to resolve a dispute between the parties in the absence of any relevant legislation in Thailand.  Given the recent controversy that has arisen in Thailand concerning surrogacy and a provision contained in the Thai Civil and Commercial Code that an act is void if its object is expressly prohibited by law or is impossible, or is contrary to public order or good morals it is doubtful that a surrogacy agreement could be enforced in a court of law in Thailand.

In an attempt to reduce such problems, Section 27 of the previously proposed draft surrogacy law provided that a child born through means permitted under the proposed Assisted Reproductive Technologies Act, born of a surrogate mother was to be deemed to be the legitimate child of the commissioning parents who had the intention to have the child through the ART process and not of the surrogate or other person who provide genetic material. This seems to be a sensible proposal and it is to be hoped that a similar provision will be contained in the proposed new legislation.

it was not clear in the earlier proposed legislation who was to have authority for registration of legitimsation on behalf of the commissioning parents.  In order  to protect children born as a result of surrogacy, the law needs to provide that the family and inheritance provisions of the Thai Civil and Commerce Code shall  apply mutatis mutandis to the extent that they are not contrary to or inconsistent with the proposed Act.

Presumably the Juvenile and Family Court will have authority to preside over the registration of legitimating and the commissioning parents will be able to seek a court order to be registered as the legal parents at the District Amphur Office. A provision of this type will go some way to resolving the legal issues surrounding the parental rights of the commissioning parents as well as protecting the children.

Whatever eventuates it seems that the proposed new Thai surrogacy law, if enacted, will make significant changes to the law.

The Surrogate Mother's Rights

There is presently no law which provides protection to the surrogate mother. The new law should gives the Thai Medical Council the right to stipulate the requirements and financial conditions for the care of the surrogate mother before and during all stages of the pregnancy. The terms, conditions and requirements for payment of the costs and expenses for the support and maintenance of the surrogate mother during pregnancy will be need to be determined by the Medical Council with the approval of the Child Protection Committee.

The proposed new law will probably  also make  provision regulating egg and sperm donation and storage and more generally regulate assisted reproduction.

Thai Surrogate Mothers

The proposed new laws will be an important step in regulating the surrogacy process and in providing reassurance for those seeking a to undertake a surrogacy arrangement  in Thailand.   In any event, extreme care needs to be taken in embarking on such a venture.  

 The earlier proposed draft law prohibited commercial surrogacy but did not define this term (Section 23).  It is not clear how this prohibition will be enforced given a provision in section 24 for not only payment of expenses of the surrogate but also for her support and maintenance. The proposed section 25 made it an offence to act as an intermediary or broker for surrogacy arrangements or to accept financial or other benefits in consideration for the engagement or management of surrogacy.  The proposed section 26 prohibited advertisements seeking women wishing to act as surrogates whether for commercial purposes or otherwise.

The fact that the Thai government has proposed legislation recognises the importance of the issue of surrogacy in Thailand.  It also suggests that surrogacy and IVF will continue to grow in popularity in Thailand.  Altruistic Surrogacy is permitted in many countries throughout the world which indicates that those governments have no difficulty with the concept of surrogacy. The banning of commercial surrogacy arrangements in many countries seems to stem from the proposition that it  may tend to exploit people who are vulnerable, namely, the surrogates mothers. Curiously, concept of protecting vulnerable persons from possible exploitation does not appear to be extended bythose governments to multinational corporations. Any new legislation enacted in Thailand should ensure that surrogacy arrangements are not only regulated but there is transparency in them so that there is no prospect of exploitation. A requirement that the surrogates mothers receive legal and medical advice before entering into a surrogacy agreement seems sensible and logical. In that way it could be demonstrated that the surrogates mother entered into the agreement freely and voluntarily. Any new law should also contain provisions to ensure the protection of children born through surrogacy.

Undertaking Surrogacy in Thailand

In addition to medical and financial issues it is important to consider the legal issues in embarking on a surrogacy arrangement in Thailand.  Care needs to be taken to make sure that laws in the intended parents, home country are not infringed. As there are presently no laws governing surrogacy one must proceed on the basis that whilst surrogacy is not illegal a surrogacy agreement  may be difficult to enforce under Thai law if it is breached by the surrogates.  Appropriate provision should be made in surrogacy agreements to ensure that the surrogate mother is unlikely to breach it. Agreements should also ensure that there is transparency in any arrangement between the commissioning parents and the surrogate mother.  The contractual arrangements entered into with the surrogate mother, egg donor and any third-party, such as the medical specialists and surrogacy consultants should be carefully considered and legal advice should be obtained.

Consideration needs to be given and advice obtained on the ability of the commissioning parents to be able to return to their country of origin with the child, to be at able to exercise parental rights and responsibility in respect of the child under both Thai law and the law of their country origin and the ability to obtain citizenship in that country for the child.

Prospective parents should seek legal advice from a lawyer experienced in surrogacy law before entering into a surrogacyagreement  so as to ensure that their rights and those of the child and the surrogate are adequately protected. This should include advice about the process by which the child can be properly and legally recognised as the child of the commissioning parents.