The use of a surrogate mother remains a grey area for Thailand but there is hope that draft legislation now ready for review by the National Legislative Assembly (NLA) will finally bring clarity - and protect children born through the use of assisted reproductive technology (ART).
Because there is no law in relation to surrogacy, people seeking to use a surrogate mother to have a child won't always be able to do this, whether they pay money or not, Thai lawyer Sithichok Sricharoen said.
However, with no legal punishment for using surrogates at present, this meant a special law needed to be passed to make it illegal, he said.
Using a surrogate mother was not human trafficking, because it was about giving birth, Sithichok said. The civil code said a child born to a woman is that woman's legal child; surrogacy was not possible in the current legal perspective.
There are two types of surrogacy: "full surrogacy", which requires an embryo from the spouse's egg and sperm to be implanted to the surrogate mother's womb, and "partial surrogacy", which required the father's sperm and the surrogate mother's egg.
The Social Development and Human Security Ministry has put forward the draft bill, which has been reviewed by legal experts on the Council of State and is pending deliberation by the NLA. Key facets of the draft bill include:
1. The couple wishing to have a child through a surrogate mother must be legally wed.
2. The surrogate mother must be a relative to one of the spouse, but must not be the spouse's parents or child.
3. The surrogate mother must have at least one child before and, if she has a husband, she must get his consent first.
If these components are not met, the applicant must ask for permission from a government-endorsed committee to control the use of ART on a case-by-case basis and the committee's order is final.
4. It is prohibited for anyone to act as a middleman to collect payment or benefits as in a commercial activity or to reap benefits from arranging or encouraging surrogacy. It is also prohibited for a medical professional to carry out the ART procedure for a woman's pregnancy, with knowledge of or with reasons to believe that the woman is a surrogate mother for commercial gain.
5. When a child is born from artificial insemination or ART via donors' egg and sperm, the woman who gave birth shall be the child's legal mother and the woman's husband who consented to the pregnancy shall be the child's legal father. The donors whose egg and sperm were used shall have no right over the child.
6. In a case of a child born via surrogacy, using sperm and egg from a couple who want a surrogate, or others, the couple shall be the child's legal parents but they must allow the surrogate mother to breastfeed the child for at least three months. In cases in which the child is raised in a difficult situation, as per the Child Protection Act, the surrogate mother can sue or demand custody of a child, and a court can base judgement what appears best for the child's happiness and benefit.
There has been much debate in recent years over this sensitive issue. Those who support surrogacy claim the state should not intervene if people's actions don't harm others, saying that surrogacy would mutually benefit the couple and the surrogate mother and prevent child abduction or child trafficking.
Those opposed to surrogacy have said it is immoral and against human nature and would lead to exploitation, such as surrogacy for hire, as well as affecting the child and society. They also raised the question of what to do if a child is born prematurely or disabled, or if the couple changes their mind, and what if the couple only wants one child but the surrogate mother gives birth to twins or triplets.