Thai Law Insights

A Review of Thai Surrogacy Law: the Need to Amend?

Thira Saetieo

In light of the recently passed marriage equality law in Thailand, a problem under Thai surrogacy law has surfaced. For many couples, including those who cannot conceive and same-sex couples, surrogacy is one of the few options to have a child. However, despite the marriage equality law, it is still unclear whether same-sex couples can legally access surrogacy, as the governing law, the Protection of a Child Born by Medically Assisted Reproductive Technology Act, B.E. 2558 (2015) (“this Act”), still uses binary terms such as “husband” and “wife”. See the opinion of one legal scholar, published by Bangkok Post.

Under this Act, lawful husband and wife seeking surrogacy must obtain permission from the Committee of the Protection of a Child Born by Medically Assisted Reproductive Technology (“Committee”). If the couple fails to obtain permission, the surrogacy is illegal, and the couple cannot enjoy the rights provided by this Act. For example, the child born by surrogacy (“the Child”) will not be deemed the legitimate child of the couple, and the couple will not have parental rights over the Child.

Furthermore, at least one partner in the couple must hold Thai nationality. This means that it is currently not possible for foreign couples to legally access surrogacy in Thailand. However, the Thai Ministry of Public Health has announced plans to legalize surrogacy for foreigners.

As a result, many illegal surrogacies have gone underground, making it more dangerous for the surrogate mothers and babies. This has also caused other societal problems, such as where the biological parents cannot take care of the Child as they do not have parental rights, while the surrogate mother, who has parental rights over the Child, does not want to take care of the Child.

While whether to fully legalize commercial surrogacy is still debated, especially when considering why the ban was instituted in the first place (see the Baby Gammy case), couples may obtain parental rights over the Child born by seeking legal counsel and making a request to the court. The court may grant parental rights if it is in the best interests of the Child, considering factors such as the DNA link between the Child and the biological parent, financial stability and any criminal history of the couple, provided that the surrogate mother does not use her own oocyte.

The abovementioned problems may be solved by the court, but since Thailand is a civil law country where prior court decisions are not legally binding precedent in theory, an amendment to this Act must be introduced to fully address the issue.