Thailand Bans Foreign Commercial Surrogacy

Allison M. Whelan, J.D.
Senior Fellow, Center for Biotechnology & Global Health Policy, University of California, Irvine School of Law
Guest Blogger

Thailand’s interim parliament recently passed a law prohibiting foreigners from seeking Thai surrogates. The law was proposed and passed in response to several recent scandals and the growing surrogacy industry that has made Thailand one of the top destinations for “fertility tourism.” One of the most publicized controversies was “Gammy’s case,” in which a baby boy born to a Thai surrogate for an Australian man (the baby’s genetic father) and his wife was diagnosed with Down Syndrome. The couple abandoned Gammy but took his healthy twin sister.  The Thai surrogate also claimed the parents asked her to abort both children when she was seven months pregnant.  And in August 2014, authorities discovered that the 24-year old son of a Japanese billionaire had fathered at least a dozen babies by hiring surrogate mothers through Thai clinics.

The law makes commercial surrogacy a crime and bans foreign couples from seeking surrogacy services. The law does not, however, appear to prohibit non-commercial surrogacy among Thai citizens, provided that the surrogate is over twenty-five years old. Violations carry a prison sentence of up to ten years. Wanlop Tankananurak, a member of Thailand’s National Legislative Assembly, hailed the law, stating that it “aims to stop Thai women’s wombs from becoming the world’s womb.”

Despite the fact this new move in Thailand is viewed as a success and as an important means to protect Thai women and children born via surrogacy, it remains to be seen whether the law will be implemented, enforced, and successful in achieving its goals. First, “[l]aw enforcement in Thailand is famously lax.”  Commercial surrogacy was supposedly banned by Thailand’s Medical Council in 1997, yet a booming surrogacy industry developed. Second, will the law actually prevent commercial and foreign surrogacy in Thailand, or will it simply cause it to go underground, making is less visible and less regulated, thus increasing the risk of coercive and abusive practices? And third, should Thai surrogates be paid something for their time, efforts, and for undertaking the risks inherent in pregnancy? That is, should surrogacy be solely an altruistic gesture?

The “rule of law,” or “law on the books” is often not enough to impact law in action and social practices.  Merely enacting laws and policies prohibiting commercial surrogacy will not end the practice, as clearly illustrated by Thailand’s history. If the country’s leaders are actually committed to ending the practice, they must take the time and expend the resources to enforce the law and regulate the surrogacy practices still allowed by law.  Nevertheless, even if the law is implanted and enforced, the question remains whether it is wise or whether it will do more harm than good.

This entry was posted in Bioethics, Global Health, Medical Tourism, Michele Goodwin and tagged by Michele Goodwin. Bookmark the permalink.

About Michele Goodwin

Professor Goodwin is a prolific author, public commentator, and social policy advocate. She serves on the executive board of the ACLU and is an elected member of the American Law Institute, and a Fellow of the American Bar Foundation. Her reviews and commentaries appear in Forbes, Salon.com, the New York Times, L.A. Times, Washington Post, Chicago Sun Times, and numerous other periodicals. She is published in the Yale Law Journal, Harvard Law Review, Georgetown Law Journal, Northwestern Law Review and other law journals.

One thought on “Thailand Bans Foreign Commercial Surrogacy

  1. Thank you for the write-up. My children were all born in Thailand via surrogacy. We had a great experience and still keep in contact with the surrogate mothers. I also have an agency that has brought couples to Thailand for egg donation and surrogacy services.
    There were definitely some shady practices going on before – I know, people have approached me many times with some rather strange requests. I always refuse to deal with people wanting to do “shady” stuff. Some laws are needed. However, it is also important to know that they shady cases are very few. The vast vast majority of surrogacy cases end up happy. I have seen and experienced this many times.
    The surrogacy practices in Thailand have helped many surrogate mothers get out of poverty, have created millionaire doctors and very successful clinics and hospitals. Basically everyone who is involved with surrogacy in Thailand has benefited – especially financially – everyone, including hotels, taxi companies, restaurants etc.

    The new laws are laws – will they be enforced? Good question. Right now there is a lot of self-regulation going on with the clinics and doctors, but there are also exceptions. Thailand is a society where there are laws on the books, but the enforcement of those laws is a different story – and sometimes that is a good thing.

    It is also interesting to note that the men who have outlawed surrogacy are that – men, mostly rich upper class Thai men – military, conservative, traditional, proud men. The woman and Thai families actually benefitting from surrogacy have had no say. This is a law passed by the upper-class, richer men who have no real concept of how the bottom rung of Thai people live and have no idea of just how much this surrogacy tourism has benefited a lot of Thai women. I normally don’t like to make statements based on the ideas of classism and such, but in this case, it is definitely a case of the rich upper-class Bangkok elite forcing their “great” Thai morality onto the rest of Thai society.

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