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 IVFprocedures. With the trend for people to enter into permanent relationships later in life theinability to have children is increasing. Childless couples are increasingly looking to Thailandand elsewhere to allow them to have children through IVF technologies available where areno laws prohibiting this and it is also affordable. In Australia it was recently reported by theAustralian Broadcasting Commission that IVF procedures increased by 40% over a two-yearperiod. The demand for surrogacy and other artificial conception procedures is rapidlyincreasing throughout the world.

Existing Thai Surrogacy Laws

There are presently no laws governing surrogacy in the kingdom of Thailand. Surrogacy isneither 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 haslegal rights in respect of that child. Where a child is born to a mother who is married sheand 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 notmarried to the mother at time of birth has no parental rights even if he is recorded on thebirth 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 leastseven years of age.

As there are no Thai laws relating to surrogacy so there is virtually no possibility that a courtwould 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 childof 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 ofchildren born through surrogacy, for the protection of surrogate mothers and to regulatethe legal relationships between commissioning parents and surrogate mothers. Theproposed legislation is contained in the Assisted Reproductive Technologies Bill, bill number167/2553 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 tohave a one by using another woman as a surrogate mother. The commissioningparents must be in ready both physically and mentally to be parents to the childto be born

·         The surrogate mother must not be a parent or a child of either of thecommissioning parents

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

However, the Medical Council of Thailand may subsequently announce additionalterms and conditions as are appropriate after consideration and approval by theChild 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 spermwith intention to use a surrogate mother; and

·         where the fertilised embryo is produced from either of the commissioningparents’ sperm or egg and either the sperm or egg of a donor with the intentionof using a surrogate mother, provided that use of an egg provided by thesurrogate 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 ofthe Child Protection Committee (Section 24).

Parentage disputes arising from surrogacy in Thailand

Surrogacy arrangements are usually set out in a contract or agreement entered intobetween the commissioning parents and the surrogate mother. Notwithstanding thisthe legal status of such a contract or agreement is doubtful and agreements are oftenambiguous. Often little can be done to resolve a dispute between the parties in theabsence of any relevant legislation in Thailand.

In an attempt to reduce such problems, Section 27 of the draft surrogacy lawprovides that a child born through means permitted under the Assisted ReproductiveTechnologies Act, born of a surrogate mother is deemed to be the legitimate child ofthe commissioning parents who had the intention to have the child through the ARTprocess. 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 onbehalf of the commissioning parents. In order to protect children born as a result ofsurrogacy, the Bill provides that the family and inheritance provisions of the Thai Civiland Commerce Code shall apply mutatis mutandis to the extent that they are notcontrary to or inconsistent with the proposed Act.

This means that the Juvenile and Family Court will have authority to preside over theregistration of legitimating and the commissioning parents will be able to seek a courtordeprovision goes some way to resolving the legal issues surrounding the parental rights of the commissioning parents as well as protecting the children.
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 therequirements 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.

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In addition to medical and financial issues it is important to consider the legal issuesin embarking on a surrogacy arrangement in Thailand. The provisions contained inthe existing law and in the proposed future law must be carefully considered. Inorder to obtain parental rights commissioning parents may, in some circumstances,attempt go through an adoption process which may inevitably involve interactionwith the Thai authorities.

The contractual arrangement entered into with the surrogate mother, egg donor andany third-party, such as the medical specialists, should be carefully considered andlegal advice should be obtained.

Thought needs to be given and advice obtained on the ability of the commissioningparents to be able to return to their country of origin with the child, to be at able toexercise 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 theimportance of the issue of surrogacy in Thailand. It also suggests that surrogacy andIVF 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 inThailand.