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Thailand: New Surrogacy Law

(Apr. 6, 2015) On February 19, 2015, the National Legislative Assembly of Thailand enacted the Protection for Children Born Through Assisted Reproductive Technologies Act (ART Act), which will be enforced after it is published in the Royal Thai Government Gazette. (Senate Meeting Minutes (Feb. 19, 2015), Thai Senate website; text of the Act, Thai Senate website (both in Thai).) This act significantly protects children born through Assisted Reproductive Technologies (ART) and sets the legal procedures the spouses (referred as “applicants”) must follow in order to have such children.

Thailand has previously not had any law directly referring to surrogacy. Instead, the authorities applied a provision in the Criminal Code, which states that anyone who enslaves another person or causes a person to be in a position similar to that of a slave; transports them into or out of the country; or buys, sells, disposes, accepts, or restrains a person may be subject to imprisonment for up to seven years and fined up to 14,000 Baht (about US$430). (Thailand Penal Code (Thai Laws Specifying Crimes and Punishment), (B.E. 2499 (1956), last amended by Criminal Code (No.17), B.E. 2547 (2004)), § 312.)

Many problems arose as a result of the application of this provision, including the problem of the restriction of rights over children born through surrogacy.

Features of the ART Act

The purposes of the new Act are as follows:

1) to specify the parents’ legal status;
2) to control and specify the rights and duties of related parties during and after surrogacy;
3) to control and set boundaries on the proper use of enhanced technology, especially for achieving pregnancy in procedures; and
4) to prohibit surrogacy involving a business or profit-making enterprise. (Ad Hoc Committee on National Legislative Assembly Affairs, Report of the Consideration of the Protection for Children Born through Assisted Reproductive Technologies Act, Thai Senate website (Jan. 22, 2015) (in Thai).)

The new Act defines ART as “any medical scientific procedure that removes eggs or sperm from a human body for the purpose of unnatural pregnancy, including artificial insemination ” of a third person. (ART Act, § 3.) Surrogacy is defined as “pregnancy by ART.” (Id.)

ART applicants must be lawful spouses, and the wife cannot be pregnant. Same-sex couples cannot seek surrogacy, because Thai law has not yet provided for legally sanctioned same-sex marriage. In addition, one of the following criteria must be met:

1) both applicants (husband and wife) are Thai; or
2) if only one of the applicants is Thai, the couple must have been married for at least three years. (Id. § 21(1).)

The surrogate mother must:

1) be a blood relative of either of the applicants, but may not be either applicants’ parent or descendant (id. § 21(2) & (3)); and
2) have had a pregnancy before the surrogacy. (Id. § 21(4).)

If the applicants do not have any blood relatives who can serve as the surrogate, they will be able to apply based on exceptions that will be outlined in future regulations to be issued by the Minister of Public Health. (Id. § 21(3).)

The approval of the husband of the surrogate mother is required for surrogacy. (Id. § 21(4).) The eggs of the surrogate mother may not be used for the surrogacy procedure. (Id. § 22(2).)

The applicants and the surrogate mother must have a written agreement before the pregnancy occurs, indicating that the applicants will be the legal parents of the child. (Id. § 3.) The Act also clearly states that the applicants will be the legal parents of the surrogate child and cannot deny the parentage of a child born through ART. (Id. §§ 29 & 33.) The Act will be applied retroactively to those children of surrogacy born before the Act’s entry into force, through a process of the parents’ seeking court approval. (Id. § 56.)

If anyone is involved in surrogacy for profit, he/she will be sentenced upon conviction to imprisonment for up to ten years or a fine of up to 200,000 Baht (about US$6,140). (Id. §§ 24 & 48.) If anyone acts as an agent by requesting or accepting money, property, or other benefits in return for managing or giving advice about surrogacy, he/she will be sentenced upon conviction to imprisonment for up to five years and/or a fine of up to 100,000 Baht. (Id. §§ 27 & 49.)

As for the powers and duties of government to impose regulations on surrogacy, the Act establishes a special committee under the Permanent Secretary of the Ministry of Public Health to advise the Minister of Public Health about policies to protect children born through ART, in conformity with the purposes of the Act. (Id. §§ 6 & 7.)

Reportedly, Mr. Kitti Wasinondh, a member of the National Legislative Assembly, and Mr. Adul Saengsingkaew, the Minister of Social Development and Human Security, believe that the new Act will reduce the surrogacy for profit and human trafficking that has resulted in maltreatment of women. (The National Legislative Assembly Received the Draft of the Act for the Protection of Children Born Through Assisted Reproductive Technologies,Which Included Punishment of up to 10 Years Imprisonment, ASTV MANAGER ONLINE (Nov. 27, 2014) (in Thai).)

Prepared by Ployparn Ekraksasilpchai, Intern, Law Library of Congress, under the supervision of Sayuri Umeda, Senior Foreign Law Specialist.