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