Thai crack down on surrogacy could leave British parents in turmoil
Surrogacies prohibited for prospective parents who are unmarried or a same-sex couple
On 22 July 2014 Thailand's military government announced a review of all 12 fertility clinics in Thailand that conduct surrogacy. On Wednesday 30 July 2014 the Thai Government held a meeting with fertility clinics and doctors to set acceptable standards.
Background – Surrogacy
On an international level there are stark and contrasting approaches to surrogacy. In some jurisdictions surrogacy is permitted and enforceable (eg California), whereas in others surrogacy is criminalized. The UK's approach to surrogacy is rooted in legislation from the 1980s and provides that surrogacy is not unlawful but the arrangements cannot be enforced and there are offences against third party commercial brokers, all of which creates uncertainty and obstacles for UK based parents.
As a result many UK based parents enter into surrogacy arrangements abroad, whereby an overseas surrogate mother delivers their baby in her home country and then the UK couple bring the child home.
Surrogacy destinations for UK couples
The USA is a popular destination for UK based parents. In some US states, the legal certainty, established agencies and high quality of medical and ethical treatment provide an ideal solution. As a result, the USA is an expensive destination, often costing in excess of $100,000.
Until recently India was a popular and low-cost alternative to the USA. In 2012 changes to Indian law meant that surrogacy was only available to married heterosexual couples. India's change in law has led to same-sex couples looking to new cheaper alternatives to the USA.
The position in Thailand
Thailand, which has for a number of years been popular for Australian parents, seemed to fit the bill. Thailand previously had no laws regulating surrogacy and in the absence of any prohibitory laws, UK couples (particularly same-sex couples) have been considering Thailand and some couples will have already embarked upon surrogacy arrangements.
It appears that surrogacy is now permitted in Thailand only if:
- the intended parents are a heterosexual married couple;
- the intended parents are medically infertile;
- the surrogacy is altruistic (ie the surrogate has not profited from the arrangement);
- the surrogate is related to the intended parents.
It appears that therefore surrogacy will be illegal if the intended parents are either an unmarried heterosexual couple or a same-sex couple, if any money has been paid to the surrogate and the removal of a child from Thailand without the permission of the Thai authorities will likely breach human trafficking laws.
There are reports that all records from one Thai IVF clinic have been removed by the Thai military. Accordingly the parents already with surrogate pregnancies under way at that clinic will have no means of contacting the surrogate, will not know the whereabouts of the surrogate or know what will happen to their unborn babies.
It remains to be seen what will happen to the arrangements that were entered into prior to yesterday's meeting or whether the Thai authorities will seek to prosecute either the surrogates, agencies, doctors or the intended parents for child trafficking offences.
Anne-Marie Hutchinson OBE, Partner at Dawson Cornwell, said:
"The lack of consensus between countries as to the approach that should be adopted towards surrogacy is leading many intending parents to go overseas. It is crucial for parents to thoroughly research their intended destination for surrogacy and take specialist legal advice before commencing on the surrogacy journey. The recent change in law in Thailand is likely to particularly impact upon same-sex couples, with many of the popular "low-cost" destinations for surrogacy restricting surrogacy to married heterosexual couples."
Colin Rogerson, Solicitor at Dawson Cornwell, commented:
"It is too early to see what the impact on parents, surrogates, clinics and doctors in Thailand will be. It is awful for all concerned, not least the blameless children who could possibly find themselves in orphanages or stateless."