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Surrogacy Laws in Thailand
By Joe Lynch of Lanna Lawyers,
Thailand Accredited
Specialist Australian Family Lawyerlynchlaw.net.au@gmail.com
Thailand's reputation as a surrogacy centre is rapidly
growing. 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 is 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 40% over a two-year period. 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 statute. 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 parties. There is a subsequent recording of
the father’s status confirming his rights and
•
There is
a subsequent recording of the father’s status confirming his rights or
•
.There
is an order of the Court confirming the father’s rights.
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 there is virtually no possibility that a court would make an order
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 that any laws
governing surrogacy has created a legal and ethical quagmire. Recognising this, the Thai Cabinet
recently 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 is contained in
the Assisted Reproductive Technologies Bill, bill number 167/2553 approved in May 2010. The new law has however not yet been implemented
The main provisions relating
to surrogacy in draft Act are as follows:
1. Surrogacy procedures are
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
However, the Medical Council of
Thailand may subsequently announce additional terms and conditions as are appropriate after
consideration and approval by the Child
Protection Committee to be established under the legislation.
2. Two types of surrogacy processes
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, provided that use of
an egg provided by the surrogate
mother is prohibited.
3. The terms, conditions and
means of payment of the costs and expenses for the support and maintenance of
the surrogate mother during and immediately after
birth pregnancy are 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.
In an
attempt to reduce such problems, Section 27 of the draft surrogacy law provides that a child born through
means permitted under the Assisted Reproductive Technologies Act, born of a surrogate
mother is 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.
However,
it is not clear that who has authority for registration of legitimsation on behalf of the commissioning parents.
In order to protect children born as a result of surrogacy, the Bill provides 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.
The draft Thai surrogacy law, if enacted, will make significant changes to the law.
The Surrogate Mothers Rights
The draft surrogacy law does not
however, relate solely to the children born as a result of surrogacy but also provides
some protection for the Thai surrogate mother. The proposed new law gives the
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
determined by the Medical Council with the approval of the Child Protection
Committee.
The draft law also makes provision regulating egg and
sperm donation and storage and,
more generally about assisted reproduction.
The draft law is an important step
in regulating the surrogacy process and provides reassurance for those seeking
a surrogate in Thailand. It is not clear when or if the proposed law will come into effect.
Some commentators believe that it will be some considerable time. In any event,
extreme care needs to be taken in embarking on such a venture. The process is
presently a legal and ethical quagmire. The proposed draft law goes some way to
regulating this process.
The draft law prohibits commercial
surrogacy but does not define this term (Section 23). It is not clear how this
prohibition will be enforced given the provision in section 24 for not only payment of expenses
of the surrogate but also for her support and maintenance. Section 25 makes 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. Section 26 prohibits advertisements seeking women wishing to act as
surrogates whether for commercial purposes or otherwise.
.
In addition to medical and financial issues it is
important to consider the legal issues in embarking on a surrogacy
arrangement in Thailand. The provisions contained in the existing law and in the proposed
future law must be carefully considered. In order to obtain parental rights
commissioning parents may, in some circumstances, attempt go through an adoption
process which may inevitably involve interaction with the Thai authorities.
The contractual arrangement entered
into with the surrogate mother, egg donor and any third-party, such as the medical
specialists, should be carefully considered and legal advice should be obtained.
Thought
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
and appropriate advice obtained..
Prospective parents are well advised
to seek legal advice from a lawyer experienced in surrogacy law before entering into
any surrogacy arrangements so as to ensure that their rights and those of the
child 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.
The fact that the Thai cabinet has
approved the draft 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. It is expected that further details of the proposed
legislation will be announced by the Medical Council in order to
more comprehensively flesh out the
regulations that will apply to surrogacy in Thailand.
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