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Thailand moves to ban commercial surrogacy

18 August 2014
Appeared in BioNews 767

Thailand's Government has approved a draft law intended to make commercial surrogacy a criminal offence, leaving some foreign couples reportedly unable to take their surrogate-born children out of the country.

The change in law, which is yet to be approved by the King, follows the ongoing baby Gammy incident, where the Australian intended parents of a child born with Down's syndrome have been accused by the Thai surrogate mother of abandoning the child (reported in BioNews 765). The couple has denied the allegations, however, saying the surrogate refused to hand the boy over.

The story has cast a spotlight on the practice of commercial surrogacy in the country. At the time the story broke surrogacy was unregulated, leaving it in a legal grey area governed only by a code of conduct of the Medical Council of Thailand (MCT), which in fact opposes commercial surrogacy.

Under the new law, however, only altruistic surrogacy will be permitted where a heterosexual, married and infertile couple have commissioned a blood relative to act as a surrogate. But since the initial approval, several foreign couples have been reportedly prevented from leaving the country with babies born to Thai surrogate mothers.

Immigration officials at Bangkok Airport stopped two US couples from leaving the country last Wednesday, immediately after the initial approval took place. Another two Australian couples were prevented from leaving Thailand the following day, according to ABC. The couples were asked to obtain parental orders from the Thailand's juvenile court before they would be permitted to leave with the babies, a process that can take months.

One of the Australian couples has since been allowed to leave with their baby following background checks by the immigration authorities, reports the Guardian. A spokesperson for Thailand's Foreign Ministry said he was unaware of any policy to stop foreign couples leaving the country with surrogate-born babies but that they would need the correct documents.

There have also been concerns about the welfare of surrogate mothers in Thailand left in limbo and reports of some hospitals turning mothers away, fearing being implicated in commercial surrogacy services, reports the Sydney Morning Herald. The MCT has urged doctors not to refuse treatment to surrogates.

A spokeswoman for Thailand's military government, the National Council for Peace and Order (NCPO), confirmed that the draft law has received the Government's initial approval last Wednesday. It is now awaiting final approval from the National Legislative Assembly before being presented to the King for his approval.

'The NCPO has approved a surrogacy draft law', said Pattamaporn Rattanadilok na Phuket of the NCPO. 'We will punish through criminal law those who practise and are involved in commercial surrogacy. Those who hire surrogate mothers or make this a commercial business will be violating criminal law'.

The Department of Foreign Affairs and Trade of Australia (DFAT) has been pressing Thailand to allow a 'transitional arrangement' to be put in place in order to assist some 200 Australian couples that will potentially be affected by the change in law.

'While regulation of surrogacy in Thailand is a matter for Thailand, we continue to encourage Thai authorities to adopt appropriate transitional arrangements for any new measures they may introduce, so concerned Australians are not unduly affected', a spokesperson said.

Stephen Page, an Australian surrogacy lawyer, described the reported decision to stop the couples from leaving Thailand as extraordinary. 'What's really concerning is the Thai Government has changed the rules halfway through the game and virtually overnight, these couples who had gone into this process in good faith now find themselves pawns in a disastrous game'.

The DFAT has advised people entering Thailand for surrogacy to seek independent legal advice in both Thailand and Australia before doing so.

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