Surrogacy is a form of assisted-reproduction technology whereby a woman carries a baby for another person through pregnancy for specific reasons. After delivery, the baby is returned to the real mother of the baby.
In Thailand, surrogacy has been controlled by legislation since November 2015. Surrogacy is a legal treatment for couples who have indications for such treatment/for surrogacy.
On February 19, 2015, the National Legislative Assembly of Thailand enacted the Protection for Children Born Through Assisted Reproduction Technologies Act (ART Act), which will be enforced after it is published in the Royal Thai Government Gazette. This act significantly protects children born through Assisted Reproductive Technologies (ART) and sets the legal procedures that the couples must follow to have such children.
The purposes of the new Act are as follows:
- To specify the parents’ legal status
- To control and specify the rights and duties of related parties during and after surrogacy
- To control and set boundaries on the proper use of enhanced technology, especially for achieving pregnancy in the procedure
- To prohibit surrogacy involving a business or profit-making enterprise
The new Act defines ART as any medical scientific procedure that removes eggs or sperm from a human body for the purpose of unnatural pregnancy, including artificial insemination of a third person. Surrogacy is defined as pregnancy by ART.
ART applicants must be lawful spouses, and the wife cannot be pregnant. Same-sex couples cannot seek surrogacy, because Thai law has not yet provided for legally sanctioned same-sex marriage. In addition, one of the following criteria must be met:
- both applicants (husband and wife) are Thai, or
- if only one of the applicants is Thai, the couple must have been married for at least three years
The surrogate mother must:
- be a blood relative of either of the applicants, but may not be either applicant’s parent or descendent
- have had a pregnancy before the surrogacy
If the applicants do not have any blood relatives who can serve as the surrogate, they will still be able to apply based on exceptions that will be outlined in future regulations to be issued by the Minister of Public Health.
The approval of the husband of the surrogate mother is required for surrogacy. The eggs of the surrogate mother may not be used for the surrogacy procedure.
The applicants and the surrogate mother must have a written agreement before the pregnancy occurs, indicating that the applicants will be the legal parents of the child. The Act also clearly states that the applicants will be the legal parents of the surrogate child and cannot deny the parentage of a child born through ART. The Act will be applied retroactively to those children of surrogacy born before the Act’s entry into force, through a process of the parents seeking court approval.
If anyone is involved in surrogacy for profit, he/she will be sentenced upon conviction to imprisonment for up to ten years or a fine of up to 200,000 Baht (about US$6,140). If anyone acts as an agent by requesting or accepting money, property or other benefits in return for managing or giving advice about surrogacy, he/she will be sentenced upon conviction to imprisonment for up to five years and/or pay a fine of up to 100,000 Baht.
As for the powers and duties of government to impose regulations on surrogacy, the Act establishes a special committee under the Permanent Secretary of the Ministry of Public Health to advise the Minister of Public Health about policies to protect children born through ART, in conformity with the purposes of the Act.
The process of surrogacy includes
- Medical review. The applicants must have indications of the need for surrogacy, which are as follows: the absence of a uterus, both congenital or acquired; the applicant has medical problems that mean she cannot carry a child by herself or that carrying a child might be dangerous to the applicant; a congenital anomaly of the uterus or some gynecological problem, for example uterine fibroid, uterine adenomyoma, which can cause abortion and preterm labor; recurrent implantation failure at least three times in the case of good-quality and competent embryos
- Searching for the right person who meets the criteria of Thai legislation
- The applicant and the surrogate should have a psychiatric assessment before the procedure
- The couple apply for permission under the Department of Health Service Support (DHSS) to have a surrogate child.
In the case of foreign couples who have difficulty in conceiving a child, they cannot apply for a surrogate service. However, they can use other medical technologies until assisted reproductive technologies.