Thailand Moves to Reform Law following Surrogacy Cases Gone Awry

Last week, Thailand officials announced a reform of its surrogacy legislation by way of a newly drafted bill that would ban commercial surrogacy. This move to tighten restrictions comes after two widely-reported and controversial surrogacy cases gone wrong in the nation – the now-famous story of Gammy, a twin abandoned by his intended parents due to his having Down syndrome; and that of one Japanese businessman’s 13 surrogate-born infants and their mothers discovered in an apartment.

Last Thursday, Thai officials held four press conferences at which they explained the nation’s current law involving surrogacy. As it stands, the third-party reproductive technology procedure is legal if carried out by a doctor with a government-issued surrogacy license. This law applies to medical institutes. Commercial surrogacy agencies, on the other hand, operate with no real regulations.

Boonreung Trireungworawat, the Permanent Secretary of Thailand’s Health Department, expressed his concern over his country’s lack of restrictions on surrogacy.

“The assisted reproductive technology has existed in Thailand for a long time but now it’s become an issue because there are stricter regulations in other countries. The parents have migrated to Thailand because Thailand does not actively go after the issue. They will now understand that the Thai law will be stricter.”

If this new bill becomes law, the penalty of surrogacy for profit could yield up to 10 years in prison and a fine of up to 200,000 baht, or $6,200. Commercial agencies, advertisers, or other kinds of surrogate mother recruiters would be subject to five years in prison and a fine of up to 100,000 baht ($3,100).

While surrogacy itself presents numerous problems, Gammy’s case highlights the particular difficulties of legal differences across countries as well as the harm done by disability discrimination in utero.

Gammy’s intended father, David Farnell of Australia, stated last Sunday on the Australian Broadcasting Corporation’s (ABC) 60 Minutes: “If it would have been safe for that embryo to be terminated, we probably would have terminated it, because he has a handicap and this is a sad thing. And it would be difficult – not impossible, but difficult.”

According to a health law expert, Dr. Sonia Allan, however, an abortion for this reason would be illegal under Thai law, as it is restricted only to the exceptions of serious risk to the mother’s health or if the pregnancy was a result of sexual assault.

Farnell went on to blame the Bangkok-based surrogacy agency, recalling in the same interview that he said, “Give us back our money. This is your fault.”

As for the discovered 13 surrogate-born infants, police are currently investigating the case at the urging of former Minister of Social Development and Human Security Paveena Hongsakul. She suspects foul play as she is aware of “gangs” that seek spinal cord stem cells from trafficked infants with a procedure that may be potentially lethal. The 13 children appear to be safe as Hongsakul transported them to a government orphanage north of Bangkok.

The drafted bill has been submitted to the head of legal and justice affairs under the military junta, and afterwards will be passed on to the interim legislature for review this week.

Besides this legislative move for restrictions, all 240 licensed surrogacy professionals, members of the Medical Council of Thailand and the Royal Thai College of Obstetricians and Gynaecologists, will meet later this month.

Though surrogacy is often portrayed as a service – a good, even – and though some may dismiss these cases as unfortunate and rare, the reality is that they simply highlight the very uncertainties and complexities inherent in any procedure that recruits a third party to bear a child.  Human rights and not mere commercial contracts – much less product quality control – are at stake.

Genevieve Plaster is Research Assistant at the Charlotte Lozier Institute.