Breaking news Surrogacy Thailand

Breaking news Surrogacy Thailand
http://www.smh.com.au/world/thailand-bans-foreign-surrogacy-after-baby-gammy-affair-20150220-13ksrm.html

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.

                                                                          

Nahm Thai Restaurant Bangkok

'I can throw a few ingredients together'

Date

Natasha Rudra

David Thompson's restaurant was the first in the world to win a Michelin star for Thai food, but the Australian chef says his two-decade love affair with the cuisine was almost accidental.

David Thompson describes himself as a "creature of circumstance". Photo: Adam Weaver

IT STARTED ON A HOLIDAY TO THE country more than 20 years ago. ''Bit by bit I became seduced or caught in the thrall of Thai cooking,'' David Thompson says. It's not something he consciously considered. If he had, he says, laughing, ''I would have run a mile''.

Having immersed himself in Thai cuisine and food culture for two decades, Thompson is considered one of the foremost Western chefs on the subject, with two books, Thai Food and Thai Street Food.

Thompson opened Darley Street Thai in Sydney before making his name in London at the Michelin-starred Nahm. Partner Tanongsak Yordwai is Thai, and in 2010 the pair moved to Bangkok and opened a second Nahm, taking high-end Thai food to Thailand. He now calls Bangkok home.

RRP $100, published by Lantern.

''I've been coming here three or four months every year for the last 20 years,'' Thompson says. ''We moved back here three years ago, so here is home.''

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Outside Bangkok is Thompson's farm where he grows obscure Thai herbs, ''stuff that's hard to get in the marketplace'', regional plants that don't grow in Bangkok, ''arcane herbs'' and others that have fallen out of fashion.

He is excited about the farm and would do more with it if he didn't have to run between the land and his restaurant in the city. ''I'd love to spend time out there … rolling in the mud,'' he says. ''Wallowing in the mud would be fantastic but alas, I am in the centre of Bangkok, unable to wallow.''

Wallowing time looks unlikely in the future, with Thompson working on a television series for the ABC about Thai street food. His sights are also set on Hong Kong, where he plans to open a new venture based on Thai street food.

''Singapore is probably the pulsing place right now for Western food but Hong Kong has always been one of the bright lights,'' he says. So is this going to be Nahm 3? ''No, no! I don't want to do another version of Nahm.''

Other than that, Thompson prefers to take things as they come.

''I don't know where my life will lead, I never expected to open a restaurant in the UK … [or] Bangkok, and look what's happened,'' he says. ''I'm a victim of circumstance no, a creature of circumstance.''

But he says up front, there will be no whizz-bang technology.

''I'm not avant-garde at all, I'd rather have a nice curry and a bowl of rice,'' he says. ''So there'll be no machines. The most complicated machine … will be a pestle and mortar.''

Asked why Thai chefs have not yet stepped up to claim their place in the spotlight, he points to Ian Kittichai, who is known particularly in New York. More widely, the language barrier remains a problem. ''I might be able to articulate a little bit more elegantly in English, maybe, than Thais might,'' Thompson says. ''I can throw a few sentences together like I can throw a few ingredients together.'' He is self-deprecating about his place in the pecking order.

Thompson says Thailand is ''just about the food'', with corridors of restaurants on the main thoroughfares of Bangkok. One of his current favourite dishes is charred squid and glass noodles with chopped herbs such as Asian celery, spring onions and coriander.

''There's this wonderful shop up behind Chulalongkorn University that does the most delicious fish dumplings. They make the wonton wrapper out of fish meat mixed with tapioca flour … It's delicious, really lovely stuff. Thai food is as complicated and diverse as Italian food.''

Read more: http://www.smh.com.au/entertainment/restaurants-and-bars/i-can-throw-a-few-ingredients-together-20121001-26uwz.html#ixzz2ABM8HaaK

Funny Thai video

Very funny Thai video ad promoting regular exercise.

Hok mong laew  (หกโมงแล้ว) means "it's six o'clock (alraedy)"

At the end of the video is the message "Don’t forget to exercise everyday"  yàa luem òrk-gam-lang-gaai túk-wan ná.

อย่า [yàa]  means ‘do not’ used to make an order or a suggestion not to do something. The pattern would be อย่า [yâa]+ verb or verb phrase

ลืม [luem] means ‘forget’

ออกกำลังกาย [ òrk-gam-lang-gaai] means ‘to exercise’

ทุกวัน [túk-wan] means ‘everyday’

นะ [ná] is a particle used to soften your statement, it can be used together with the polite particle ครับ [kráp] or คะ [ká].

(Thank you Kru Mod)

Below is the link to the video

http://youtu.be/WymMn3gNsYI

Number 1 Bar Chiang Mai

Lemon’s Graduation

Quite a few months ago I went to my local, Number One Bar n Soi 1 off Loi Kroh Rd Chiang Mai, earlier than usual as I had a lunchtime meeting in town.  I arrived atabout 4 PM.  I was greeted as usual by the girls in the different sections of the bar on both sides of the soi (lane). “Sa-wat-dii khâ  khun Joe” they chorused. The girls know every customer’s name and always greet them on arrival.  I took a stool in the main bar and ordered a drink.  San Miguel light with lemon.  The drink was brought over to me by a new girl who I hadn't met before.  She said to me in Thai “Sa-wat-dii, khâ khun Joe. Chan chue Lemon.  Sabaai-dii mai?” (Hello Joe. My name is Lemon. How are you?).  Her name was confirmed by the name tag hanging on a cord around her neck. I said in Thai that I was good and was pleased to meet her.

Lemon looked to be about 30 years old.  She had light brown skin, was about 5 feet four inches tall, thin with a good figure and long shapely legs which were enhanced by her short denim miniskirt and her high heel shoes.  She had long black hair, a pretty face and a broad engaging smile.

We went through the usual exchange of questions and answers in Thai.  It is always good practice for my Thai speaking to the girls at Number One Bar.  Unlike in Western countries it is not impolite to ask personal questions in Thailand.  Whenever you meet a new person you will be asked your name, where come from, how old you are, how long you have been in Thailand, whether you are married or single, what you do for a living and, inevitably, whether you like Thai girls.  This question will always be asked whether the interrogator is male or female. Similarly, after a short conversation with a Thai girl you have never met before she will always give you her phone number if you ask for it.
Lemon disclosed that she was born in Korat, the gateway to Isaan, but had lived in Bangkok for many years.  She was single and had never married and had no children.  She did not have a boyfriend. She had worked for more than 10 years with an IT company in Bangkok in the staff training division.  She had also completed a university degree part-time.  She had now come to Chang Mai as she wanted a change of direction in her life.  Her friend, Tukta, had left the same IT company two years earlier and had been working at Number One Bar since then.  Lemon had come up to Chiang Mai at Tukta’s suggestion.  Tukta is just as nice as Lemon but not as attractive. Lemon said she shared a room further down the soi with two other girls.

It was Lemon’s second day working at Number One Bar.  I said to Lemon that her name was unusual and not a Thai name.  I asked her where it came from.  Thai girls always have a nickname usually between 1 to 4 letters as their christian names are usually quite long.  Some common nicknames are Lek (small), Noi (little), Maew (cat), Pla (fish), Fon (rain), Gung (prawn) and even Poo (crab).  Porn (blessing) always gets a smile or a lewd comment.  Lemon said her real nickname was Mon, a common Thai name.  She said however that there were a number of farangs working at the IT company and they had christened her Lemon.  The name had stuck he said that she had used it ever since.  She said that she even used it in her e-mail address which she said was lemon72@................  She gave me the full e-mail address but you will have to guess the rest.  I knew that Thais, and indeed many people, use their birth year as part of their e-mail addresses or passwords so I guessed that this was a clue to Lemon’s age.  I said to Lemon in Thai “How old are you? “ (Khun aaýu tâorài?). She said “Guess”.  I said that it was dangerous (antaraai) guessing girl's ages but that I thought she was 39.  She said to me “That's right.   Gàe laéw  (old already) but how did you guess that?”  I told her I was just good at guessing girl’s ages but said that she really looked much younger.  She smiled broadly at me and said “khop khun khâ. (Thank you).

Thai men have the view that girls over the age of about twenty five years are gàe laéw (old already) and therefore not desirable.  They prefer young girls but not so the expats or western tourists (farangs) who have no such difficulty.  So the girls working in the bars might be gàe laéw to Thai men but they live in hope that they will find a farang who will find them beautiful who will love and look after them. The girls have no similar prejudice against farangs who are definitely gàe laéw.

Over the weeks Lemon and I became friends.  If I got to the bar early to meet mates we often sit down together and hda drink and a chatted.  She's always good fun to talk to and it helps me with my Thai and her with her English. 

After a while Lemon announced that she was going back to Bangkok for about 10 days to visit friends and to collect her car and bring it to Chiang Mai.  A couple of the regulars offered to travel to Bangkok with Lemon and drive her back in her car.  She grinned at these offers but did not respond.  Lemon subsequently went to Bangkok and we were at the bar when she proudly arrived driving her recent model Toyota which she parked in the bar’s parking lot.  She later informed me that she had also attended her university graduation ceremony while in Bangkok.  She seemed very proud of the fact and told me that she had majored in human resources.  I suggested she should have the degree framed and hung on the bar wall.   She laughed and said she might do that.
After working for more than 10 years in the IT industry and completing a university degree Lemon was putting her studies in human resources to good use  working as a bar girl in Chiang Mai.  She's a really nice girl.  I know of no patron at Number One Bar who considers Lemo.n to be gàe laéw. I hoped she'd find what she was looking for.
Well she did. a few months later Lemon told me she hsd met a really nice guy, an Amserican who worked in the Middle East, and that she was going over to stay with him. And it worked out. She's now in a permanent relationship with him and they live in an apartment in an upmarket part of Chiang Mai. He commutes back and forth for work.
And what about Tukta? She had given up and was about to return to Bangkok to work for her old employer wfpho had offered her a promotion. but the the floods cane and her home in Bangkok and her workplace were under water. She had resigned from the bar but had to stay in Chiang Mai until the floods retreated. During that time she got lucky too and met a guy she fell in love with. They now also live together in Chiang Mai.

Tukta comes back to the bar quite often as her partner drinks there. She always has a chat to the regulars. I asked her recently if she had seen Lemon. She said she had phoned her but had not met up with her adding "Lemon is a rich girl now and is too busy".