Commercial surrogacy in Thailand is illegal. Thai surrogate mothers can only be permitted if they are biologically related to the child.
In the past, Thailand did not have any law regulating reproductive agreements and Thailand at one time was one of the major international commercial surrogacy destinations providing assisted reproductive services to individuals from all over the world.
It wasn't until two major surrogacy scandals made headlines in 2014 that things changed. The first one was the heartbreaking story of baby Gammy, the surrogate child of an Australian couple who was abandoned after the baby was found to have Down syndrome; the second one involved 16 surrogate babies found in Bangkok with a Japanese businessman claiming to be their father.
The incidents raised questions about the ethics of commercial surrogacy and the line between surrogacy and human trafficking.
The National Council for Peace and Order (NCPO) fast-tracked legislation proposing a bill to regulate surrogacy to the National Legislative Assembly and the military-dominated parliament passed the law criminalising and banning commercial surrogacy services in February 2015.
The main objective of the law, Protection of Children Born from Assisted Reproductive Technologies Act (the ART act) is to ban foreigners from seeking surrogacy services and end the "rent-a-womb" industry that raked in huge profits in artificial reproduction.
Still, demand of commercial surrogacy services remain high. Legal constraints and the high cost of access to technology have led an increasing number of patients to cross international borders to have children. Several illegal surrogacy networks have emerged and they use social media to recruit Thai surrogate mothers, paying them more than 500,000 baht each. The networks cultivate embryos in a neighbouring country; the surrogate mothers are impregnated, and then return to Thailand until they give birth.
Meanwhile, authorities are concerned about the low birth rate in Thailand and thinking about promoting ART. As a result, some have proposed legalising commercial surrogacy services. Last week, the Department of Health Service Support (DHSS) said it is seeking to amend the law to allow commercial surrogacy to help curb the illegal trading of babies. The agency is pursuing an amendment to the ART Act which would allow women to be hired legally as surrogates. The amendment would also enable foreigners to obtain legal surrogacy services in Thailand.
Currently, a woman who is not biologically related to a husband and wife seeking a surrogacy service due to a fertility problem is allowed to serve as a surrogate only if the couple do not have a blood relative capable of doing so. Now the DHSS is in the process of considering what requirements a commercial surrogate mother would need to meet.
The move is a good one, though concerns remain. The most important concern is about the rights of surrogate child which need to be protected. In fact, under the Civil and Commercial Code, parental rights over babies born under surrogacy are automatically granted to the gestational carrier. That applies even if one of the intended parents is the biological father and the egg comes from a donor.
Because the issue is controversial and may provoke a moral outcry in certain sectors of society, a hush-hush approach to any law change must be avoided. Whatever bill is proposed should be debated widely and all stakeholders consulted.