Pitfalls on path to equality

Pitfalls on path to equality

In the future, the family frontier will be expanded. The declining population is posing a challenge to the country in the midst of a brain drain due to political conflict. Given the demographic crisis, public health officials are seeking an amendment to allow commercial surrogacy. However, the slow progress of the marriage law for same-sex couples can put their desire for parenthood on hold.

The Protection of Children Born Through Assisted Reproductive Technologies Act took effect in 2015 after two scandals exposed the nefarious surrogacy industry. Under the law, legally married couples or couples with one Thai partner who have been married for at least three years can seek non-commercial surrogacy from blood relatives. If not, surrogate mothers must comply with public health regulations. In addition, they must have been pregnant.

Dr Tares Krassanairawiwong, director-general of the Department of Health Service Support, said the amendment draft will be finalised in two months and undergo further review. It will pave the way for commercial surrogate registration. If LGBTI people are allowed to marry, they will be entitled to services. Nevertheless, the road to legalising same-sex marriage is lengthy and full of twists and turns.

Basically, there are two proposals under consideration. Sponsored by the Justice Ministry, the civil partnership draft bill was approved by the cabinet on July 8, 2020. If passed into law, it will allow same-sex couples to register their union (not marriage) and enjoy benefits, such as joint management of assets, inheritance and adoption. However, they are not as comprehensive as those offered to heterosexual couples. Unlike its counterpart, it does not permit surrogacy.

On the other hand, the same-sex marriage draft bill, sponsored by the Move Forward Party, seeks to amend Section 1448 of the Civil and Commercial Code, which reserves marriage for men and women only. It will change gender-specific terms "man and woman" to "person" and "husband and wife" to "married partner" to allow anyone to tie the knot. If passed into law, it will guarantee the right to surrogacy.

Currently, the government whip has sent back the civil partnership draft bill to the Justice Ministry for further review. It stands a higher chance of sailing through parliament because it is the government-sponsored version. Meanwhile, lawmakers in the House of Representatives voted in favour of the same-sex marriage draft bill on Feb 9, but it would be "under review" for 60 days. It hangs in the balance due to three factors.

First, some groups are opposing the same-sex marriage draft bill. An MP from the Prachachat Party told a House meeting that he rejects the draft legislation on behalf of other Muslims because it is contrary to their belief, which limits the definition of husband and wife to man and woman. He said any law that challenges religious freedom endorsed in the constitution cannot be enforced. The opposition-sponsored version is also less likely to pass.

Second, political uncertainty can stall proposed legislation in the pipeline. Of many scenarios, it is possible that Prime Minister Prayut Chan-o-cha will dissolve the House of Representatives before the next parliamentary sitting in May, which coincides with the 60-day time frame for the completion of reviewing the draft law, to avoid the no-confidence debate because the potential negative outcome will taint the image in the next general election.

Political instability results from the fact that the current government is ruling with a razor-thin majority, following the expulsion of Thamanat Prompow and 20 MPs from the ruling Palang Pracharath Party and other rifts, such as the political infighting in Chon Buri and conflict with the coalition parties. The House dissolution can delay the push for legalising same-sex marriage and commercial surrogacy.

Finally, the Constitutional Court's ruling that Section 1448 of the Civil and Commercial Code does not violate Sections 25, 26 and 27, which guarantee equal rights for all citizens, reinforces the traditional belief that marriage is reserved for heterosexual couples only. A 12-page document makes clear that marriage is when a man and a woman agree to live together for reproduction, which is foundational to the formation of the family and other institutions.

It suggests that stakeholders enforce the specific law for LGBTI people in an implicit reference to a civil partnership, which unfortunately excludes the right to surrogacy. This raises the question of whether the ruling will result in the same-sex marriage draft bill being dropped off the table. If that is the case, they will be in the shadow of straights. Despite being given greater rights, they will be far from the joy of parenthood.

Thana Boonlert is a feature writer for the Life section of the Bangkok Post.

Thana Boonlert

Bangkok Post columnist

Thana Boonlert is a writer for the Life section and a Bangkok Post columnist.

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