New Surrogacy Law 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 intended parents. The Act Providing Protection for Children Born through Assisted Reproductive Technologies (ART) was enacted in 2015 (B.E. 2558). Surrogacy is prohibited in some jurisdictions and allows in others and in others it is only allowed for altruistic purposes. It is criticized over ethical concerns and concerns regarding the child. In Thailand in particular this practice has been problematic as it was connected to human trafficking. Another question is who will be the mother of the child: the 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. 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 new reproductive technologies legal maternity must be determined by the law as one child might have three different “mothers”: the genetic mother, the mother who has given birth 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 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.