Category Archives: Thailand Law

Hague Treaty Child Abduction Thailand

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The Hague Convention on Child Abduction allows for claims by parents who have had their child abducted. The Thailand Child Abduction Act is the domestic law that allows for an aggrieved parent to enforce his rights to have his or her child returned to their country of residence.

For more information watch the full video where Chaninat & Leeds discusses the Hague Convention on child abduction in Thailand and it’s implications.

Current issues regarding Thailand family law are important for families that cross borders due to having different residences or due to business travel.

Related Journal:

Protecting Vulnerable Children in Thailand

Surrogacy in Thailand: Laws and Regulations

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In the wake of the recent surrogacy scandals in Thailand, there has been much speculation and confusion regarding what current laws and regulations are in effect in Thailand for surrogacy and related procedures.

This report is an overview of the current applicable laws and medical regulations for clinics and doctors in Thailand. This report is also intended to shed light on possible future Thailand laws with regard to couples seeking surrogacy and the surrogate mothers.

Background

Medically assisted reproductive technologies (ART) are relatively new developments in medical care services. Assisted reproductive technologies, such as in vitro fertilization, gamete intrafallopian transfer, and surrogacy, have provided new opportunities for couples seeking to have children who would otherwise be unable to. Although ART procedures have advanced at a dramatic pace, the laws regulating these technologies have lagged behind.

Thailand has recently experienced a boon in assisted reproductive medical services, including commercial surrogacy services, mostly aimed at foreigners who are often referred to as “medical tourists.” The sudden rise of Thailand-based businesses offering ART services can be attributed to three main factors:

  1. New restrictions on commercial surrogacy in India that has severely curtailed commercial surrogacy in that country. This has led to a migration of service providers from India to Thailand, as well as opportunities for existing medical clinics in Thailand to expand their services to include commercial surrogacy.
  2. The lack of an explicit law regulating commercial surrogacy and assisted reproductive services in Thailand. This has resulted in a “gray area” for clinics providing these services in Thailand.
  3. An abundance of Thai women willing to act as surrogates and egg donors.

Rules Governing Medical Clinics

Thailand’s Department of Health Service Support (HSS) held a news conference on Tuesday, August 26 to clarify applicable regulations of all medical clinics and doctors, including those performing surrogacies in Thailand, and to specify penalties clinics and doctors can face if found guilty of violating the applicable regulations.

Medical clinics in Thailand are governed by the Sanatorium Act B.E. 2541 (1998). For a clinic in Thailand to operate legally, including those providing ART and surrogacy services, the clinic must abide by the rules and regulations put forth in the Sanatorium Act.

According to HSS, there are three sections of the Sanatorium Act government officials are employing to prosecute those clinics and doctors found to allegedly be illegally licensed and/or involved in illegal surrogacy procedures (based on Medical Council regulations):

  1. Under Section 65, any licensee or manager who violates or fails to control and supervise the practitioners in the clinic to perform their duties under the laws on medical practices shall be liable to imprisonment not exceeding one year, or to a fine not exceeding twenty thousand Baht, or to both.
  2. If a person engages in an ART or surrogacy business without a license from the grantor, which is set by the Ministerial Regulation, that person can face imprisonment not exceeding one month, or a fine not exceeding two thousand Baht, or both under Section 56.
  1. Under Section 49, a clinic providing ART or surrogacy services can be closed and a practitioner’s license can be revoked if it appears that the licensee or the manager fails to comply with the Sanatorium Act. According to the HSS, clinics found providing and engaging in surrogacy procedures are being shut down for 60 days, pending an investigation.

Furthermore, the HSS announced that injured persons of any clinic that has, to date, been shut down, can send a letter to the Medical Council and the council will review and determine the morality of the doctors allegedly involved in any injuries and take disciplinary actions.

Rules Governing Medical Practitioners

Medical practitioners and physicians are regulated by the Medical Council of Thailand and the regulations the Council puts forth. The Medical Council has two announcements with relevant regulations regarding ART and surrogacy services. These regulations establish basic standards concerning ART, which licensed practitioners must adhere to.

The first Medical Council regulation on surrogacy and ART, issued in 1997, stipulates that to lawfully provide and perform any procedures related to assisted reproductive technologies and surrogacy, practitioners in Thailand must obtain a license from the Royal Thai College of Obstetricians and Gynecologists.

The second notification regarding assisted reproductive technologies, issued in 2002, further specified the rules for surrogacy that doctors in Thailand must abide by. Some of the notable surrogacy regulations include:

  • A medical practitioner can only use an embryo from the intended parent’s gametes for a surrogacy by a woman who is not the wife.
  • No compensation must be made in return to the woman who gets pregnant instead of the couple in a manner that may be understood as hiring one for pregnancy.
  • The woman who carries the pregnancy on behalf of the couple shall be a relative by blood of either party of the couple.
  • Pre-implantation genetic diagnosis may be conducted for certain disease determinations as deemed necessary and appropriate and it must be an act which will not be construed as gender selection.

Existing Medical Council regulations are administrative rules for the Medical Council, a professional organization regulating the conduct of its members. These regulations do not penalize women who act as surrogates or intended parents who pursue surrogacy in Thailand, but only prohibit women from acting as surrogates if they do not meet the Medical Council standards.

The Draft Surrogacy Act

Although a series of sensational news stories concerning abuses of commercial surrogacy in Thailand has brought the necessity of a comprehensive legal regime to regulate commercial surrogacy and assisted reproductive technologies in Thailand to the forefront, in actuality, there has been a draft law regarding commercial surrogacy and ART since 2004. However, the Parliament has not yet acted on passing the draft law into official legislation.

Now, as a result of the current importance of the issues of commercial surrogacy and ART in Thailand, the Thai government and professional associations have renewed efforts to make the Thai draft surrogacy law official.

According to the Bangkok Post, Chatree Pinyai, the Ministry of Public Health’s legal department director, said it would be impossible to enact new laws within three weeks but “the law will be put into place by the end of the year.”

Despite the Ministry’s statement that a law will be in place by the end of the year, there is still some disagreement concerning the content of the draft surrogacy law, and there is no certainty that the law will be in effect by the end of 2014.

 

Related Articles:

Clinic Under Investigation in Thailand-Australia Surrogacy Case

Thailand Closes Surrogacy Clinics: New Law May Ban

New Draft Law to Regulate Surrogacy in Thailand

Becoming a Surrogate Online: “Message Board” Surrogacy in Thailand

 

Related Legal Documents:

Thailand Draft Surrogacy Law – unofficial English translation

Thailand Medical Council Surrogacy and IVF Regulations – unofficial English translation

Thailand Sanatorium Act

Thailand Surrogacy Lawyers

 

Related Videos:

News Conference on Thailand’s Draft Surrogacy Laws, Department of Health Service Support – Thai language news coverage

Thailand Updates Foreign Business Law

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Thailand’s Foreign Business Act law has been in existence, in its present form, since 1999. The law is intended to protect certain business activities for Thai nationals when those business activities are considered to be important to the national interests of Thailand. To implement this policy the Foreign Business Law prohibits or restricts non-Thai nationals and Thai limited companies with majority non-Thai shareholding from engaging in the restricted business activities.

The law specifies three lists of restricted business activities, with List One being the most protected Thai business activities and thereby the most restrictive to non-Thais, to List Three which is the least restrictive category of business activities for non-Thais. The business activities listed under List Three are activities for which a foreign business license is still required, but may be easier to obtain than for those business activities on List One and List Two.

For many years, the category of “service businesses” on List Three has been too broad and general. Up until the recent amendments to List Three, foreign majority owned companies needed a special license to operate service businesses of any type.

However, the Foreign Business Law Amendments issued March 11, 2013 to List Three’s service businesses category provided much needed clarity to the overly broad definition of service businesses. These amendments listed specific service business business activities that are exempt from List Three of the Foreign Business Act, thereby allowing non-Thai nationals and foreign majority limited companies to provide the business services listed without needing to obtain a foreign business license.

It is hoped that these exempted categories of service businesses should provide non-Thai majority companies the ability to operate more freely to some extent within Thailand. Nevertheless, it is recommended that interested parties obtain independent legal advice before engaging in business activities in Thailand.

Thai Government Investigates Forged Land Title Deeds in Phuket

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The Thailand Department of National Parks stated in a press conference last week that it would begin a “campaign” to reclaim public land in Phuket’s Sirinat National Park that has been encroached upon with the use of improper Sor Kor 1 title documents, according to the Bangkok Post.

Up to 370 land plots, covering 2,700 rai (roughly 1,092 acres), are allegedly illegally overrun by real estate tycoons and hoteliers within the national park.

The Phuket National Park Office blames the Provincial Land Office for issuing land title deeds to properties within the national park, reports the Bangkok Post. The Provincial Land Office counters that it received no assistance from the National Park Office to determine land boundaries before issuing deeds. These land officials reportedly proceeded with issuance of some of the deeds in question, rather than face lawsuit charges.

Despite these apparent discrepancies, Sirinat National Park chief, Kitiphat Taraphiban, reported to the Phuket Gazette that he will file official complaints against several individuals this week.

“Anyone claiming to own pieces of land that are in fact part of the national park will face charges of encroachment. We will take back all the national park for the public,” said Chief Kitiphat in an interview with the Phuket Gazette.

Thailand  real estate law provides for different types of land title deeds.  However, public lands do not normally allow for exclusive private ownership.

Sources:

Bangkok Post

Phuket Gazette

Adultery Will No Longer Be A Crime In New Hampshire

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The USA Today, reports that the New Hampshire state Senate voted on Thursday 17 April 2014 to repeal its anti-adultery law, by sending the bill to the Governor Maggie Hassan, who is thought likely to sign it into law. Under the present law, a convicted adulterer can be punished with a fine of up to USD 1,200.

“States’ anti-adultery laws are rarely enforced, a vestige of our country’s Puritanical beginnings”, says Naomi Cahn, a law professor at the George Washington University Law School.

States with anti-cheating laws generally define adultery as a married person having sexual intercourse with someone other than their spouse.

Adultery is not a criminal offense in Thailand, but it can be used as a ground to divorce a cheating spouse. Adultery is also a civil offense in Thailand meaning that an adulterer can be sued in Civil Court by an aggrieved spouse.

Read the full article here 

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