Nowadays, advancements in medical technology have provided various methods to assist individuals experiencing infertility or those who are physically unable to conceive. Surrogacy pregnancy has emerged as one of the viable alternatives in addressing such reproductive challenges. However, the practice must be conducted in accordance with the law and governed by ethical considerations. Our law firm in Bangkok and our lawyers at the private clients practice at H&P have prepared a summary of the legal aspects of surrogacy in Thailand.
Surrogacy pregnancy refers to a situation where one person becomes pregnant on behalf of another person who is unable to conceive. According to the definition in Section 3 of the Protection of Children Born through Assisted Reproductive Technologies Act, B.E. 2558 (2015), the term is defined simply as “pregnancy through assisted reproductive technologies.” However, Section 22 further elaborates that surrogacy pregnancy may be conducted in two forms:
1) Using an embryo created from the sperm of the husband and the egg of the wife who wish to have a child through surrogacy pregnancy, whereby the husband and wife must be legally married under Thai law.
2) Using an embryo created from the sperm of the husband or the egg of the wife who is legally married and wishes to have a child through surrogacy pregnancy, combined with the egg or sperm of another person. However, in this method of surrogacy pregnancy, it is strictly prohibited to use the egg of the woman acting as the surrogate.
Since surrogacy pregnancy procedures are only permitted in cases of significant necessity, surrogacy pregnancy may be carried out when a woman is unable to conceive on her own—for example, if pregnancy poses a high risk to her health, or if she has no uterus or an abnormal uterus. There must be a medical indication, such as a diagnosis from a physician stating that the woman is unable to conceive by herself.
Moreover, surrogacy pregnancy must be carried out in accordance with the conditions prescribed by the aforementioned act. The woman acting as a surrogate must enter into a written agreement with the legally married couple, prior to pregnancy, stating that the child to be born shall be the child of the legal husband and wife, not the child of the surrogate. Approval must also be obtained from the Child Protection Committee, and the procedure must be performed by a licensed medical practitioner providing assisted reproductive technology services. Additionally, it must comply with the conditions set forth under Section 21 of the Protection for Children Born through Assisted Reproductive Technologies Act, B.E. 2558 (2015), which are as follows:
(1) The legally married husband and wife, where the wife is unable to conceive and wishes to have a child through surrogacy pregnancy, must be Thai nationals. In cases where either the husband or wife is not a Thai national, their marriage must have been registered for no less than three years.
(2) The surrogate mother must not be a parent or descendant of the legally married husband or wife as specified in Clause (1).
(3) The surrogate mother must be a blood relative of the legally married husband or wife as stated in Clause (1).
In the absence of blood relatives of the legally married husband or wife, another woman may act as the surrogate mother, provided that the criteria, procedures, and conditions prescribed by the Minister of Public Health, upon the recommendation of the Child Protection Committee, are followed.
(4) The surrogate mother must be a woman who has previously given birth. If she has a legally married husband or a man living with her as a spouse, consent must be obtained from that husband or man.
Additionally, to protect the child, surrogacy pregnancy is prohibited from being carried out for commercial purposes. No person shall act as an intermediary or agent, nor accept or demand any property or other benefits as compensation for arranging or facilitating surrogacy pregnancy. However, it is well known that there are clinics in Bangkok that operates with lack of compliance of the Thai Law. It is also forbidden for anyone to advertise or disseminate information in any way regarding surrogacy pregnancy—whether there are women willing to act as surrogates or persons seeking a surrogate—regardless of whether such acts are for commercial gain. Furthermore, surrogacy pregnancy, including its termination, must be authorized by the Child Protection Committee beforehand. The surrogate mother, or the legally married couple wishing to have a child through surrogacy pregnancy, cannot terminate the surrogacy pregnancy by themselves. Also, the legally married husband and wife, or the legally married husband or wife wishing to have a child by surrogacy pregnancy, are prohibited from refusing to accept the child born through such surrogacy pregnancy.
Regarding the legal relationship and status of the child, the law mandates that the surrogate mother must enter into a written agreement with the legally married husband and wife before the pregnancy, stipulating that the child shall be the legitimate child of the legally married couple, not of the surrogate mother. Additionally, Section 29 of the aforementioned Act specifies that a child born through medical assisted reproductive technology, including surrogacy pregnancy, shall be considered the legitimate child of the legally married couple “who intend to have a child,” even if the legally married husband or wife intending to have a child dies before the child is born. Therefore, surrogacy pregnancy conducted under the provisions of this Act means that the surrogate mother is not the lawful mother of the child, but the child is legally recognized as the legitimate child of the legally married couple intending to have the child.
Therefore, surrogacy pregnancy involves ethical considerations and requires the protection of the rights of children born through assisted reproductive technology, as it may conflict with public moral standards. Consequently, in Thailand surrogacy pregnancy must be carried out under the provisions of the Protection of Children Born through Assisted Reproductive Technology Act B.E. 2558 (2015), and must also comply with relevant notifications issued by the Ministry of Public Health, the Medical Council, and the Committee for the Protection of Children Born through Assisted Reproductive Technology.
If you need a legal consultation in Thailand on surrogacy, please contact our law firm in Thailand at [email protected]
