Reconsidering Surrogacy Legislation in Thailand

Introduction

Thailand currently criminalises commercial surrogacy, which includes rewarding gestational surrogates with monetary compensation beyond reimbursement of medical expenses for their service of carrying a baby to be handed over to the intended parents. ¹ In 2015, the surrogacy law in Thailand formally made commercial surrogacy illegal. Prior to this, Thailand had no laws governing surrogacy arrangements; therefore, the practice of surrogacy was neither legal nor illegal.^2–4 Consequently, many entrepreneurs perceived Thailand as a place where commercial surrogacy businesses could be set up and these businesses boomed in Thailand after the ban on surrogacy arrangements for same-sex couples was implemented in India in 2013 ⁵ . Thailand became a hub for commercial surrogacy arrangements. ⁶ However, the potential for problems and abuse became clear in the case of ‘baby Gammy'. ‘Gammy' was one of a pair of twins but he, unlike his twin sister, had Down's syndrome. The intended parents refused to take him but did take his twin sister back to Australia. As a result of global attention and criticism of commercial surrogacy practices in Thailand it was banned in 2015 ⁷ causing several surrogacy fertility clinics to close. However, it has been reported that some fertility clinics in Thailand have moved their business operations to neighbouring countries such as Cambodia and Laos.^1,8,9

This article reviews the current surrogacy law in Thailand and aims to highlight the surrogacy practices prevalent in Thailand in order to propose reconsideration of the current surrogacy legislation and work toward improving and supporting altruistic surrogacy practice there.

Surrogacy law in Thailand: Protection for Children Born Through the Assisted Reproductive Technologies Act 2015

The new Protection for Children Born Through the Assisted Reproductive Technologies Act was approved by the Thai government in May 2015, and took effect on 30 July 2015. Sections 21 through 28 in Category 3 of the Act outline acceptable surrogacy arrangements.^9,10

According to Section 21,^10,11 only infertile Thai couples – or those with at least one partner holding Thai citizenship – who have been legally married for three years or more are permitted to use surrogacy arrangements. The surrogate must be a blood relative of the couple, and if the couple has no relatives, the surrogacy committee will intervene. Additionally, the surrogate must not be nulliparous, and if the gestational surrogate is married, her husband must consent to her being a surrogate.

As per Section 22, the transferred embryos must be fertilised using either the intended mother’s oocytes or donated oocytes and the intended father’s sperm or donor sperm. Surrogate oocytes cannot be used in a surrogacy arrangement. ¹⁰

Sections 23 through 28 state that only fertility clinics with a licence to practise surrogacy can provide surrogacy treatment. Commercial surrogacy practice is completely prohibited. Compensation for surrogates is limited to medical expenses and reasonable reimbursements for the costs associated with pregnancy and birth. Surrogacy agencies and surrogacy advertisements are prohibited in Thailand. ¹⁰

Only gestational surrogacy arrangements in altruistic forms are currently allowed in Thailand, and the new surrogacy law bans foreign couples from seeking commercial surrogacy arrangements there, which has significantly reduced Thai commercial surrogacy business, leading to the closure of several surrogacy fertility clinics in 2015.^9,12

Behind the scenes of surrogacy practice in Thailand

Although Thailand banned commercial surrogacy in 2015, it persists notwithstanding.^13–15 Thai women continue to engage in commercial surrogacy arrangements domestically and transnationally operating within the loophole of the current surrogacy law. This does not specify the compensation that gestational surrogates receive through the surrogacy process, which makes the commercial surrogacy arrangement in Thailand extremely flexible, resulting in a type of commercial surrogacy practice that is accepted on the condition that there exist no technical issues with the legal documents. ⁹ Consequently, the new surrogacy law remains ambiguous where Thai women are involved in a transnational commercial arrangement and cross-border embryo transfer while continuing their pregnancy in Thailand. ¹ Owing to this loophole and despite the existing ban, gestational surrogates continue to provide commercial surrogacy arrangements in Thailand. Although it is likely that the Covid-19 pandemic has slowed down the commercial surrogacy business and restricted transnational commercial arrangements and cross-border embryo transfers, the issue needs to be addressed once the situation returns to normal and the borders are open again.

Reconsideration of the surrogacy law in Thailand

There is evidence that a hidden form of commercial surrogacy continues in Thailand, regardless of the ban. How should the law be modified to prevent this? Let us consider the key aspects of the surrogacy practice guidelines and regulations in other jurisdictions.

Focusing on improving the quality of life of altruistic Thai surrogates could help to reduce their engagement in commercial surrogacy and discourage the commercial surrogacy business. Reconsideration of the surrogacy law is recommended to support the quality of life of Thai surrogates. Mandating a minimum age limit of 25 years for gestational surrogates is suggested as this may prevent very young or vulnerable women from entering surrogacy arrangements. ¹⁶

Independent legal consultations for gestational surrogates should be considered, so that surrogates are informed of their rights without being influenced by other parties, e.g. the intended parents, surrogacy agents, and fertility professionals. ¹⁷ Although the new guidelines issued by the Royal Thai College of Obstetricians and Gynecologists (RTCOG) ¹⁸ have been updated to encourage single embryo transfer (SET) and limit the number of embryos being transferred at a time to two, research has found that SET may not yet have been accepted as the usual practice in Thailand. ¹⁹ Therefore, SET practices could be made mandatory to minimise obstetric risks for the surrogates and babies. ²⁰

Research indicates that offering monetary incentives is used to attract prospective commercial surrogates to participate in situations involving the transfer of infected embryos, such as from the intended parents who are HIV positive. ¹ The introduction of legislation to proscribe increased compensation for undertaking risky surrogacy arrangements, including the transfer of infected embryos and requiring quarantine of embryos for six months, should also be considered to protect the surrogates’ health and disrupt the chain of the commercial surrogacy business. Regulating medical and life insurance for surrogates could enhance health equality and support for surrogates during pregnancy; this will also ensure that the surrogates are financially covered during unexpected situations. ²¹

It is noteworthy that Australia and the UK allow reasonable reimbursement for altruistic surrogates. Such reimbursement may include loss of earnings, medical expenses, specialised food and supplements, additional childcare or help around the house during pregnancy and after birth, maternity clothes, classes and therapies to support pregnancy, travel and accommodation related to the pregnancy, fertility treatments, reasonable legal and counselling support, cost of making a will, and buying life insurance to protect the surrogate’s family.^22,23 In the UK, a fixed sum of approximately 12,000 to 18,000 EUR is prescribed by relevant regulations. ²² Such compensation of essential reimbursements has been reported to be satisfactory for both the intended parents and surrogates, promoting the use of altruistic surrogacy.^24,25 Therefore, in Thailand, the formulation of similar regulations to ensure compensation and essential reimbursements for surrogates could help safeguard surrogates’ rights, and balance out benefits and negative effects during commercial surrogacy.^21,26

This review strongly argues for policing or legalising gestational surrogacy by adopting the above-mentioned recommendations. This will support the current altruistic surrogacy law and also improve and control the legally permissible surrogacy process in Thailand.

Conclusion

Despite the ban on commercial surrogacy in Thailand, there is evidence that it continues and improved regulation is needed to promote existing altruistic surrogacy practices in Thailand. This report is based on a recent controversy and more research of this issue is imperative to ensure better outcomes resulting from surrogacy law in Thailand.