By: Magna Carta Law Office
The National Legislative Assembly of Thailand has passed The Protection of Children Born from Assisted Reproductive Technologies Act (ART) in 2015. This act is designed to protect children born through Assisted Reproductive Technologies (ART) and it sets the legal procedures for the spouses to follow in order to go through surrogacy. Parents whose child was born to a surrogate prior to the Act coming into force can apply for court approval to have it enforced retroactively.
The Act defines Assisted Reproductive Technology 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.”
The embryo must be created by only using the intended mother’s (or donor’s) egg and the intended father’s (or donor’s) sperm. In other words, the surrogate mother‘s eggs may not be used for the surrogacy procedure.
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 procedures; and
- to prohibit surrogacy involving a business or profit-making enterprise.
Commercial surrogacy is strictly prohibited under the Act. Those found guilty of being involved with surrogacy for profit and if anyone acts as an agent by requesting or accepting money, property, or other benefits in return for managing or giving advice about surrogacy will be liable to a huge fine and/or imprisonment.
With the new law, the couples who apply for the Assisted Reproductive Technology and surrogacy in Thailand do not need to adopt the child born from Assisted Reproductive technology. The law recognizes the infertile couples as legal parents of the child.
The applicants seeking for surrogacy must be legally married and both Thai nationals, wherein the wife cannot get pregnant. If only one of the applicants is Thai, the couple must have been legally married for at least 3 years.
The surrogate mother must be related to either applicant by blood, but may not be either applicant’s parent or descendants of any degree. She should also have had a pregnancy before the surrogacy. Additionally, if the surrogate mother is married, the husband’s approval is required.
The Act clearly states that the applicants will be the legal parents of the surrogate child and cannot deny the parentage of a child born through Assisted Reproductive Technology. 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.
Since Thailand Law does not recognize same-sex marriage, same-sex couples cannot pursue surrogacy. This act is also not applicable for single people who wish to have a child through this procedure.
