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Surrogacy In Thailand

Transcript of the above video:

In this video, I'm going to briefly discuss and sort of hit the broad strokes of the issue of surrogacy in Thailand. What we're talking about here is surrogacy whereby an individual or individuals will undertake to have a surrogate, go ahead and carry a child on behalf, in most cases, a couple who essentially need assistance with reproductive matters to go ahead and have a child and in most cases, go ahead and thereafter raise a child. That child is, in fact, the legal offspring of one or both parents who neither of whom necessarily carried the child.

Surrogacy has been somewhat in the spotlight in the past three years here in Thailand because there were quite a few rather controversial cases that came up with respect to surrogacy. One involved a child born utilizing a surrogate, a child was born of two foreign nationals to a surrogate and this child was born with Down syndrome and it's been described that the biological parents sort of abandoned the child and it became a rather controversial case. I'm not getting into the facts of the underlying case but just to say that it became a controversy associated with that child and that brought the matter to light.

And then there was another case where an individual from another country outside Thailand had been using surrogacy services here in Thailand to end up fathering, it was my understanding, a number of children in the mid-upper teens. I can't remember the exact number of children that were allegedly fathered by this individual but again, it made headlines in the court of public opinion here in Thailand. Basically the result was that some serious legislative changes occurred which changed the landscape with respect to the legalities of surrogacy here in Thailand.

Not to go into detail but it's best understood if the viewers understand that prior to these legislative changes, it wasn't exactly occurring in a vacuum but basically, one problem we always have as legal practitioners is the law looks backwards fundamentally and it doesn't particularly look forward. The law is oftentimes extremely sluggish in adapting to innovative technologies and in adapting to changing times and this was really vividly seen in the circumstances involving surrogacy here in Thailand where this technology came about the law such that essentially decades behind. The law was operating in such a way that it didn't really in a sense comprehend how does technology work and the results of that was basically we saw an era where it was relatively laissez faire from the standpoint of law enforcement as far as surrogacy went. So you would see, I can remember I've dealt with matters pertaining to surrogacy, the various documentation comes about after the fact, for lack of better term.

In the past, you would see a lot of folks coming here to Thailand to partake it surrogacy services and IVF services, in-vitro fertilization so they can start their family. In a lot of cases, you saw matters involving same sex couples and this was another thing that came up, this was a rather a high profile case involving a same sex couple trying to basically walk in there. Their parental rights with respect to the child that was born as a result of surrogacy to a same sex couple. These issues have sprung up relatively recently here. Thailand has reacted to some of these things.

One of the laws is quite a mouthful which I read, "Technologically Assisted Reproductive Medicine Surrogate Children Protection Act BE 2558." That's 2015. This is basically a piece of legislation that came in to go ahead and address the surrogacy issue. Effectively now, surrogacy is only really going to be possible within the framework as it sits and it's my understanding and again, consult a legal professional if you're interested with this. You can contact us, you can contact somebody else who's qualified to deal with this.

The Thai attorneys have explained to me in the office that basically if it's surrogacy that's happening outside in the family context so it's not a blood relation like say, a sister acting as a surrogate to another sister who can't afford or who can't carry a child or it's a cousin or something like this. It's family related, sort of inter-family, this is going to be allowed.

Another thing is with respect to surrogacy, it's my understanding it's really difficult under the law as it stands now to do much of anything surrogacy related. Really, the way the law likes it these days is you know see people married and they want to see, they don't really surrogacy unless it's happening in a close, filial family context. I don't think it's going to be particularly easy. The enforcement of this stuff is becoming serious, it's quite stringent. An example of this is a gentleman was caught or detained I should say at a border between Laos and Thailand. He was apparently carrying materials that were kept in an extreme deep freeze. It remains to be seen as of the time of this filming exactly what this gentleman was supposedly carrying but it's my understanding that it may or may not be either embryos, sperms or eggs and the use of which remains unknown to me. But this detainment is something that should be noted because it shows that the authorities here in Thailand do take this issue really seriously and are not particularly interested in a lax enforcement regime when it comes to the issue of surrogacy and reproduction here in Thailand so the main gist that would be good to give from this video is surrogacy is not quite heavily regulated compared to just a few years ago.

There was sort of an interim twilight period and I dealt with cases in this twilight period where folks would come in under the old regime, they had a surrogate that was still pregnant, they've done everything pursuant to the legal framework, the past and they were sort of allowed the twilight fashion to basically get their children out of Thailand and back home to their jurisdiction. It was my understanding that embassies and consulates were especially helpful to those individuals who were dealing with this matter. The embassies were extremely helpful in assisting with documentation and things like this but my point is, they allowed a period of time, sort of transition with respect to the law. But the law is very clear now, surrogacy is not as easy as it once was. In fact, that was quite an understatement. In my opinion, it's rather difficult bordering to the point of nearly possible, I would say under certain circumstances.

And the other thing is where there are those operators out there in the community who are perhaps trying to circumvent these things by you know, like this gentleman who allegedly going over a border to another country with certain reproductive material. The enforcement apparatus in Thailand is not interested in basically, for lack of better term, looking the other way to facilitate that. This issue is something they do appear to take quite seriously and for that reason, it's strongly encouraged anybody who's looking into this topic to seriously do your research. Very advisable to hire a legal professional beforehand to conduct the due diligence so that you understand what you're dealing with respect to the jurisdiction and it's probably going to be pretty likely that at least for serious matters, Thailand might not be the best place to undertake such things. That being said, the IVF in-vitro fertilization business and the in-vitro fertilization service providers in the Kingdom are apparently globally considered top-notch though not so much for surrogacy matters but for simple IVF between couples. That I believe is still a total possibility but the issue of surrogacy, you went from being sort of operating from a vacuum to being rather opaque to now we see the regime we're dealing with and this regime is strict, I would argue it is stringent in its application of law to the point of making surrogacy not a particularly viable option for foreign nationals wishing to undertake those services here in the Kingdom.