Surrogacy in Thailand

On October 30th, a court in Bangkok, Thailand announced that a same-sex couple’s appeal for custody rights over a child born to surrogate mother Patidta Kusolsang in Thailand will be heard next year. Ms. Kusolsang’s request that the baby, Carmen, be returned, has proven to be an unexpected obstacle for spouses Mr. Gordon Lake and Mr. Manuel Santos. In fact, Ms. Kusolsang had originally released Carmen to the care of Mr. Lake. According to Mr. Lake, however, she later expressed discomfort over the fact that Mr. Santos and Mr. Lake were a same-sex couple, a fact of which she claimed to be unaware until after the baby’s birth. In contrast, Ms. Kusolsang’s lawyer has stated that her primary motive for opposing custody lies in her her unwillingness to exchange Carmen for monetary compensation. Though Ms. Kusolsang is biologically unrelated to Carmen, she is legally guaranteed the same parental rights as Mr. Lake, the baby’s biological father. Thus, Mr. Lake and Mr. Santos cannot remove Carmen from the country until Ms. Kusolsang relinquishes her rights. New Regime, New Law

Shifts in the political and legal climate of Thailand have altered the way in which the process of surrogacy is conducted. Until very recently, both commercial surrogacy and altruistic surrogacy, in which a surrogate mother does not receive compensation over and above the immediate expenses associated with the surrogacy process, had been legal. However, after the Thai military overthrew the elected government during a May 2014 coup, it began investigating the possibility of restricting the practice of surrogacy. Several high-profile surrogacy scandals also fueled the perceived need for legal restrictions. Eventually, restrictions were approved by the Thai legislature in February 2015 and put into effect on July 30 of this year. The new law on surrogacy outlaws all forms of paid surrogacy and bars foreign couples from initiating the surrogacy process. Same-sex couples are also excluded from the process. The new law requires that the couple requesting surrogacy be legally married and same-sex marriage is currently illegal in Thailand.

Is Illegality Unethical?

Restrictions on surrogacy have raised concerns that the ban will allow the surrogacy industry to flourish underground, particularly within the context of historically weak law enforcement and current political instability. Monetary incentives for foreign couples to disobey the law remain significant. At $40,000 to $72,000, the average cost of the surrogacy process is much lower in Thailand than, for example, in the United States, where it can cost $100,000 to $252,000. The proliferation of illegal surrogacy might not only endanger the safety and well-being of the surrogate mother and child, but could exacerbate common regulatory abuses—such as a failure to pay or provide for the medical needs of the surrogate mother—that often occur even where surrogacy is legally sanctioned.