Only weeks after the “baby Gammy” scandal, where an Australian couple were publicly accused of refusing to take one of the twin babies born to the surrogate mother they had engaged, because he had Down’s syndrome, Thailand is taking action on commercial surrogacy.
In the much-publicised case, the couple claimed that they were forced to leave the country taking only the child’s twin sister, when the Thai surrogate threatened to involve the police. Questions have also been raised about the father’s background; as a result of the publicity surrounding the case he has been exposed as a convicted child sex offender.
In the wake of the scandal and others like it, including the hunt for a millionaire Japanese businessman suspected to have fathered 13 babies by Thai surrogates, the Thai military government has approved a draft law criminalising commercial surrogacy. A spokeswoman for the National Council for Peace and Order (the official name for the military government) announced that “Those who hire surrogate mothers or make this a commercial business will be violating criminal law.”
The law has not yet had final endorsement from the National Legislative Assembly or Thailand’s King Bhumibol Adulyadej, both of which it is understood would be required before it could come into force. The timeline for such approval is uncertain.
Pending such approval, the legal situation surrounding commercial surrogacy in Thailand is uncertain. Information available online on Thai law seems to suggest that the code of conduct of the Medical Council of Thailand bans commercial surrogacy, but non-profit surrogacy is permitted for blood relatives and additional exceptions are sometimes permitted.
The mooted legal change presents a major source of distress and uncertainty for couples who have already embarked on the surrogacy process in Thailand but whose children have not yet been born. Should the new law be successfully implemented before the children are born and handed over, these parents may well lose the chance to complete the surrogacy process.
Commercial surrogacy is also strictly prohibited in the UK pursuant to s2(1) of the Surrogacy Arrangements Act 1985, which provides that:
1. No person shall on a commercial basis do any of the following acts in the United Kingdom, that is: (a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement, (b) offer or agree to negotiate the making of a surrogacy arrangement, or (c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements; and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis”.
The proposed new Thai law would therefore close yet another door for desperate parents unable to persuade a friend or relate altruistically to donate their services as a surrogate with only the prospect of their reasonable expenses being repaid.