Surrogacy law in Thailand
Before the latest laws came into force in 2015, there were no specific laws to cover surrogacy pregnancy in Thailand. Surrogacy was a murky area of law, neither explicitly prohibited but not clearly allowed. According to the civil and Commercial Code, any child born to a woman is that woman’s legitimate child, regardless of whether or not the woman is married. Obviously this created problems for parents of children born out of surrogacy, because they had no legal rights to their biological child, but the surrogate mother did, even though she had no biological relation. Besides custody issues, the parents and others involved could be charged under the Thai Criminal Code, human trafficking laws or medical laws. In the end the most vulnerable party was the child.
Recognizing these complications, the National Legislative Assembly of Thailand enacted the Assisted Reproductive Technology Act, which was promulgated in the Royal Gazette Issue 132/Part 38 A/page1/1 May 2015. It entered into force 90 days thereafter.
One of the safeguards against abandonment of children born from surrogacy is a clause stipulating that the married couple is not allowed to deny being parents of the child, with a prison sentence and/or fine for violators. In the interest of the health of the surrogate mother and child, as well as to prevent unauthorized medical experiments, the conditions and rules for medical practitioners involved are also stipulated. Surrogacy for profit is prohibited, particularly the sale of fetuses, ovum or sperm. It is also prohibited to advertise to provide services as a surrogate mother or to publicly search for a surrogate mother.
Conditions For Surrogacy In Thailand
The main conditions for surrogacy are laid out in Part 3, Articles 21 – 28. Applicants for surrogacy must be legally married and the wife unable to be pregnant. At least one of the applicants must be a Thai citizen, and in a cross-nationality marriage, they must be legally married for no less than 3 years. The surrogate mother must be a biological relative of either of the applicants, but neither may be a parent, grandparent or descendant of any degree. Conditions for an unrelated woman to be a surrogate mother are stipulated by regulations issued by the Minister of Public Health. The surrogate mother must have had a pregnancy before the surrogacy, and if legally married, have the consent of her husband. The pregnancy can be the result of the sperm and ovum of the couple or donors, but the ovum donor must not be the surrogate mother herself. Donors of sperm or ovum who are not the married couple applying for the surrogacy procedure will have no legal rights or responsibility to the child.
To be sure, there are shortcomings in this Act, the most obvious point being that same-sex couples are excluded by the nature of the provisions, as it uses the words, “husband and wife”; however this wording is necessary in order for the Act to not be in conflict with other national laws, as Thailand does not recognize same-sex marriage. It also does not include single women (or men) who are unable to conceive and wish to have a child through surrogacy.
In summary, this Act brings long-awaited clarity and conclusions to many legal questions surrounding surrogacy, and is a ray of hope to couples seeking to have a child through surrogacy, especially since the provisions of this Act may be applied retroactively to children born from surrogacy before the Act entered into force, through relevant court procedures, even if the couple was not legally married.
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