New Law For Surrogacy in Thailand
Thailand has now a law pertaining directly to surrogacy, i.e. the practice that a woman who is not necessarily the genetic mother of an unborn carries the pregnancy for the intended parents. The Act Providing Protection for Children Born through Assisted Reproductive Technologies (Assisted Reproductive Technologies Act) was enacted in 2015 (B.E. 2558). Surrogacy is prohibited in some jurisdictions, but other jurisdictions have deemed surrogacy legal. Thai citizens are only allowed to participate in surrogacy for altruistic purposes (as opposed to commercial surrogacy).
Thai laws are criticized over ethical concerns during the surrogacy process and concerns regarding the child. In Thailand in particular this practice has been problematic as it was connected to human trafficking and child trafficking. Another question is who will be the mother of the child: the Thai surrogate mother or the genetic mother. The new Thai surrogacy law seems to put Thailand into the group of countries where surrogacy is permitted only for altruistic purposes as Section 24 prescribes that surrogacy shall not be performed for commercial purposes (i.e. surrogacy tourism, international surrogacy or cross-border surrogacy). Furthermore, a committee comprising experts in various medical fields has to approve each case of surrogacy.
The Thai Civil and Commercial Code contains many rules concerning paternity but does not say much about who is the legal mother of a child except in Section 1546 CCC which states that the child born of the woman being not married to a man shall be deemed to be the legitimate child of that woman unless otherwise prescribed by the law. In the old days it was in most cases clear who would be the legal mother of a child (the woman who has given birth to the child) as opposed to the question of paternity which has always been uncertain.
With the many surrogacy options and new reproductive technologies available, such as in vitro fertilization and artificial insemination, legal maternity must be determined by the law as one child might have three different “mothers”: the genetic mother (egg donors), the mother who has given birth (surrogate mothers), and a social mother. In jurisdictions where surrogacy is prohibited such as in Germany the woman who has given birth to a child is regarded the mother of that child even if it is not the genetic mother. The new Thai law determines this question differently: According to Section 29 of the Act Providing Protection for Children Born through Assisted Reproductive Technologies (ART) a child will be the legal child of the intended parents who must be a married couple. Under Section 33 it is even prohibited to the applicant parents to deny their parentage.
What will be the legal relationship between the surrogate mother and the surrogate child she has given birth to? The law says relatively little about this except for the case where both intended parents die before birth. It stipulates in Section 29 paragraph 2 that the genetic parents shall have no rights and obligations with regard to the child. This is confusing because at least one of the genetic parents is at the same time the applicant parent according to Section 22 who then will be the legal parent.
Juslaws & Consult offers a free translation of the Act Providing Protection for Children Born through Assisted Reproductive Technologies (ART) as an unofficial translation. Please note that only the Thai version of the law is authoritative and we take no responsibility for the correctness of the translation.
We offer legal services regarding Thailand surrogacy laws, new regulations for legal surrogacy services, the outlook of the Thai Government regarding surrogacy, and advice for same sex couples and foreign clients who seek surrogacy services in Thailand and the legal implications thereof.
