Surrogacy Draft Laws: A Move Towards Safe Regulation

Surrogacy Thailand Lawyers Group would like to share the current state of Thai laws on surrogacy with our readers, as well as the important new changes that will be coming in the near future.  At present, there is no Thai law which explicitly covers surrogacy in Thailand.  Therefore it is a legal, yet un-monitored practice.  However, new laws have been drafted and are awaiting final approval that will change all of this and enshrine surrogacy as a legal and controlled activity in the kingdom.  Here’s a look at the current and future situations.

Surrogacy in Thailand – the Current Situation

Many of our readers will have seen information elsewhere about the legality of surrogacy in Thailand.  It is therefore critical that we explain the current role of Thai law in relation to surrogacy in this country.   At present, there are no laws which control, limit, or ban the practice of surrogacy in Thailand.  In other words, surrogacy is not illegal but also not controlled.  Let’s look at the effects of this legal situation on people hoping to become parents through a surrogate in Thailand.

Firstly, that there is no law in Thailand against surrogacy, all arrangements of this sort can be entered into by anyone regardless of marital status, orientation, age, etc.  In other words, if there is no law against it then it is, by default, legal.  However, just because it’s legal to have a surrogate carry your child, doesn’t mean your rights as a parent are protected.

The current laws that do cover parental rights and guardianship fall under the Thai Civil and Commercial Code of Laws.  According to this code, parental rights are automatically granted to the woman who gives birth to the child upon registration of that birth, as well as to the legal husband of the woman.  If the woman is not married at the time of the child’s birth, no parental rights are granted to any man as father unless they are subsequently married, unless he applies for parental rights after the child’s 7th birthday, or else if he receives a court order granting parental rights.

All of this means that parental rights are granted to a birth mother and her husband only.  In the case of surrogacy, the only way currently for the intended parents to be granted parental rights is to have the surrogate (and her husband, if applicable) to renounce their parental rights.  In this case, the courts are then free to appoint the intended parents as the legal parents of the child.

So what if the surrogate decides not to give up the child?  Currently, there is no law that would bind her to a contract for surrogacy, and for intended parents, that could be heartbreaking.  Of course, this situation is neither certain nor common – most surrogates plan to release the child from the start and intentionally do not from strong attachments to their surrogate babies.  The way to safeguard against this situation is to be extremely careful in choosing a surrogate who you believe is trustworthy, and to keep in communication throughout the pregnancy to ensure there is no change in her attitude towards the situation.

Currently, when a surrogate child is born, then the surrogate mother must renounce her rights to the child. Many agencies will get a Thai passport for the child and the child will leave Thailand in the first month. However, for some countries where surrogacy is forbidden, it might be impossible for a Thai child, even if the foreign father is on the birth certificate, to get a visa. We suggest you to verify with your embassy in Bangkok or with a lawyer of your home country. Australians normally need a DNA test, while Canadians or British don’t need it. Isreali citizens normally need some legal advice signed at their embassy to do the legal process in their home country. At the time of writing this article, German or Italian citizens can not get a visa for a Thai child if they tell their embassy how the child was born because surrogacy is forbidden there. In January 2013, France modified some ‘directives’ toward an opening to surrogacy. As you can see, it is complex and changing.

What we can do is drafting agreements for you, verifying that everything is done accordingly to Thai Law. We can also do some legal process in Thailand, like going in Court to get full and sole custody to the foreign father. But this takes few months and the father must testify in Court.  Presently, this legal process takes an average of 4 months in Thailand.  During this time, however, the intended parents may take physical custody of the child provided they stay in Thailand. What you get is a Thai judgement saying that you have full and sole custody because under Thai Law, if a father is not married with the mother, only the mother has rights on the child.

Draft Legislation for Surrogacy in Thailand

Since the current situation in Thailand does not adequately protect the rights and obligations of all parties involved in surrogacy procedures, new laws have been drafted to bring this popular fertility solution into the power of the courts.  Draft laws were approved by the Thai Cabinet as part of bill 167/2553, the Assisted Reproductive Technologies Bill, in May 2010.  The details of this bill were released publicly, though further changes are expected based on the recommendations of the Medical Council of Thailand.

Once in place, the new law would allow surrogacy in Thailand under controlled conditions.  Let’s take a look at some of these.

-Only married women who have previously given birth may be selected as surrogates, and must have the formal consent of her husband to undergo IVF.  This regulation will increase the chances of viable pregnancies while also ensuring full family consent to the procedures involved.

-Commissioning parents must be legally married, be unable to have a child by traditional means, and be physically and mentally able to care for a child.  This regulation means that individuals and un-married couples will no longer be able to commission surrogates in Thailand.  As well, intended parents will do doubt be required to undergo physical and psychological evaluations prior to being allowed to arrange for surrogacy.

-Sperm and eggs to be used for surrogacy may be those of the commissioning parents or other donors, not the surrogate.  The regulation prohibits the use of the surrogate’s own eggs, so that there is no genetic relation between child and surrogate.

-A surrogate will not be allowed to be paid.  However, her physical and financial needs relating to the surrogacy must be met by the commissioning parents.  This part of the bill prohibits commercial surrogacy, however intended parents may still pay for all of the surrogates costs and thus compensate her for her gift of surrogacy.

-A child born to a surrogate is deemed to be the legal child of the commissioning parents.  This crucially important part of the bill makes it clear that the intended parents will be the legal parents of the child at birth.  This will eliminate much of the time and difficulty of working towards adoption in the Thai courts that currently must be done in order to transfer parental rights.

Changes to Surrogacy Law in Thailand

As you can see, there are some major differences between the current legal state and the future law regarding surrogacy.  For some, the new laws represent protection for both intended parents and surrogates, and quicker and easier recognition of parental rights.  However, individuals and unmarried couples will find no longer find Thailand such a desirable destination for surrogacy.

The draft laws have been approved by cabinet and are currently awaiting approval by parliament.  No one knows when the new bill will be written into law, but with the Thai government currently headed by it first female prime minister, family and reproductive legal issues are expected to receive greater attention than in the past. In April 2013, it was still not passed.

In both the present and future case, we recommends that you work with experienced and knowledgeable legal professionals to help you protect your rights as parents to your dream child born through surrogacy.

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