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Surrogacy Laws in Thailand

 

We suggest you to consult this website for more accurate and recent development at

http://www.thailand-surrogacy-law.com/

The text below might not be up to date (July 2013). It was written by Joe Lynch in 2010. Since 2010, many different countries adopted new laws or changed their regulation.

 

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 procedures.  With the trend for people to enter into permanent relationships later in life the inability to have children is increasing.  Childless couples are increasingly looking to Thailand and elsewhere to allow them to have children through IVF technologies available there where are no laws prohibiting this and it is also affordable. In Australia it was recently reported by the Australian Broadcasting Commission that IVF procedures increased by 40% over a two-year period. The demand for surrogacy and other artificial conception procedures is rapidly increasing throughout the world.


Surrogacy Law in Thailand


There are presently no laws governing surrogacy in the kingdom of Thailand.  Surrogacy is neither 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 has legal rights in respect of that child, where a child is born to a mother who is married she and 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 not married to the mother at time of birth has no parental rights even if he is recorded on the birth 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 parents.

•           There is a subsequent recording of the father’s status confirming his rights and obligations at the Amphur (local government office).

•           There is an order of the Court confirming the father’s rights and obligations.



Registration at the Amphur office is uncertain and is not permitted until the child is at least seven years of age (normally).

As there are no Thai laws relating to surrogacy there is virtually no possibility that a court would 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 child of 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 of children born through surrogacy, for the protection of surrogate mothers and to regulate the legal relationships between commissioning parents and surrogate mothers.  The proposed legislation is contained in the Assisted Reproductive Technologies Bill, bill number 167/2553 approved in May 2010.


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 to have a one by using another woman as a surrogate mother. The commissioning parents must be in ready both physically and mentally to be parents to the child to be born

§         The surrogate mother must not be a parent or a child of either of the commissioning parents

§         The surrogate mother must have had a child before and, if she is married, her husband must consent. This is clearly important in reducing the likelihood that the surrogate and her family will not claim any rights over the child when it is born


However, the Medical Council of Thailand may subsequently announce additional terms and conditions as is appropriate after consideration and approval by the Child Protection Committee to be established under the legislation.

2.      The two types of surrogacy process are permitted as follows (Section22):

§         where the fertilised embryo is produced from the parents’ own egg and sperm with intention to use a surrogate mother; and

§         where the fertilised  embryo is produced from their either of the commissioning parents’  sperm or egg and  either the sperm or egg of a donor with the intention of using a surrogate mother, provided that use of an egg provided by  the surrogate mother is not allowed and prohibited


3.      The terms, conditions and means of  payment of the costs and expenses for the support and maintenance the surrogate mother during and immediately after birth pregnancy is to be determined by the Medical Council with the approval of the Child Protection Committee (Section 24).

(The bill is not adopted yet in July 2013)

Parentage disputes arising from surrogacy in Thailand


Surrogacy arrangements are usually set out in a contract or agreement entered into between the commissioning parents and the surrogate mother.  Notwithstanding this the legal status of the contract or agreement is doubtful and agreements are often ambiguous.  Often very little can be done to resolve a dispute between the parties in the absence of any relevant legislation in Thailand.


In an attempt to reduce such problems, Section 27 of the draft surrogacy law provides that a child born through means permitted under the Assisted Reproductive Technologies Act, born of a surrogate mother is deemed to be the legitimate child of the commissioning parents who had the intention to have the child through the ART process. 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 on behalf of the commissioning parents.  In order  to protect children born as a result of surrogacy, the Bill provides that the family and inheritance provisions of the Thai Civil and Commerce Code shall  apply mutatis mutandis to the extent that they are not contrary to or inconsistent with the proposed Act.

This means that the Juvenile and Family Court will have authority to presiding over the registration of legitimating and the commissioning parents will be able to seek a court order to be registered as the legal parents at the District Amphur Office. This provision 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 makes significant changes. Under present Thai law the birth mother is recognised as the mother of a child. If the surrogate mother is married, a child born as a result of surrogacy will be registered as the child of the surrogate mother and her husband. Hence, under current Thai law, the commissioning parents have no automatic legal rights. It is crucial therefore that both the birth mother and her husband actively renounce their rights to the child.


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 herself. The proposed new law gives the Medical Council the right to stipulate the requirements 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 Assisted Reproductive Technologies born in accordance with the Assisted Reproductive Technologies Act.


The draft law also makes provision regulating egg and sperm donation and storage and, more generally about assisted reproduction.


Thai Surrogate Mothers

The draft law is an important step in regulating the surrogacy process and provides reassurance for those seeking a surrogate in Thailand. However, 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.

Undertaking Surrogacy in Thailand


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

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

Thought needs to be given and advice obtained in Thailand on the ability of the commissioning parents to be able to return to their country of origin with the child, to be at able to exercise 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 Thai 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 the importance of the issue of surrogacy in Thailand.  It also suggests the surrogacy and IVF 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 coming months in order to more comprehensively flesh out the regulations that will apply to surrogacy in Thailand.

 

Different links:

 

Links in Thai about "surrogacy" and the new Law in Thailand:

 

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