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