Thailand is Reopening for International Surrogacy and Could Set a Precedent for Other Countries
In a dramatic turn, Thailand is set to reverse an almost decade long ban on international surrogacy.
In this BabyMoon Family article, we’ll discuss what is and isn’t yet known about the new regulations, what happened to cause Thailand to ban international surrogacy in 2015, and what this could mean for other previously popular surrogacy countries like India and Georgia who now have international surrogacy bans.
New Surrogacy Legislation in Thailand
On March 1, 2024, news broke that Thailand was changing its current assisted reproductive technology (ART) laws to allow non-Thai people to engage in surrogacy in the country (1 and 2).
Complete details are not yet available, but the following can be gleaned from these public announcements (1 and 2):
International intended parents (IPs) must be legally married.
International IPs can be same sex or opposite sex couples.
The country that the international family will be returning to must guarantee protection and rights to the child.
Gestational carriers (GCs) can be Thai or the IPs can bring a GC candidate with them to Thailand for the surrogacy procedure.
The proposed law is part of a larger package of changes to Thailand’s ART landscape and will be submitted to the government later this month
Thailand, like much of the developed world, is having a reproductive crisis. The reproductive rate is below the replacement rate of 2.1 children per woman, and so the government is trying to make family building through ART more affordable and inclusive by making IVF free for all Thai couples, including same sex couples (3).
However, this change to the international surrogacy regulations - while wrapped with the domestic ART changes to combat the declining population - must be for different reasons given that the children born to international IPs will not contribute to the Thai population.
What hasn’t been made clear with the new legislation is whether surrogacy in Thailand will remain altruistic or if commercial surrogacy will again be allowed, especially for international IPs.
The history and banning of international surrogacy in Thailand suggests that if commercial international surrogacy will be allowed, it will likely come with much more strict regulations.
History and Banning of International Surrogacy in Thailand
Prior to 2015, Thailand had a flourishing international surrogacy market, especially after India banned international surrogacy in 2012 (4).
However, during this time, surrogacy was unregulated in Thailand, and this led to two high profile scandals and the subsequent crackdown on what was called an unregulated ‘wombs for hire’ industry.
One case was called the ‘Baby Gammy Case,’ and this involved an Australian couple who had twins via commercial gestational surrogacy in Thailand. The twins were a boy, Gammy, and a girl, Pipah, and Gammy was born with Down Syndrome. Due to complexities with the GC and her relationship with the children, the Australian IPs were only able to bring Pipah home, but international media claimed they had chosen to abandon Gammy due to his Down Syndrome. Although the IPs were eventually cleared of this abandonment, the situation resulted in the twins being separated and highlighted severe issues with unregulated surrogacy in Thailand (5).
A second high profile case was termed the ‘Baby Factory Case,’ and this involved a wealthy Japanese man having thirteen babies through Thai surrogacy. This case raised significant concerns around human trafficking, and although it appears the man simply wanted a large family, the situation also highlighted a need for Thailand to have more stringent processes for international surrogacy (6).
Very quickly after these scandals, the Thai government enacted laws in 2015 that banned international and commercial surrogacy of any kind, and included the following restrictions for domestic surrogacy (4):
The couple must be in a heterosexual relationship and have been married for at least 3 years.
At least one spouse must hold Thai citizenship.
A surrogate must be a sibling of one member of the couple.
The surrogate must also be married, have her husband's consent, and previously have given birth to her child.
A woman who is not biologically related to a husband or wife is allowed to serve as a surrogate only if the couple does not have a blood relative capable of doing so.
While changes were definitely needed and unregulated surrogacy is not ideal for any country, the laws in 2015 were a blow to same sex Thai couples and queer international IPs.
The Future of International Surrogacy in Thailand and Other Countries
If these new laws pass in Thailand, this will be the first legislation of this type anywhere in the world, and it will set a precedent for a country reopening to international surrogacy after enacting a strict ban.
It’s a positive change that Thailand is opening up its ART to same sex couples, both domestically and internationally.
The Thai government also plans to establish a government review committee and procedure to review surrogacy arrangements in order to provide oversight and standardization. This type of government review committee is similar to proposals in European countries who are working on surrogacy legislation such as Ireland (https://www.babymoonfamily.com/original-articles/ireland-international-surrogacy or https://medium.com/@babymoonfamily/ireland-is-taking-a-modern-regulatory-approach-to-international-surrogacy-and-the-european-union-6a0a7461c9bf).
In a move to protect the children - who are definitely the most important part of any family building equation - Thailand aims to ensure they are returning to a country that will protect their rights and family. Denmark (https://www.babymoonfamily.com/original-articles/denmark-surrogacy-laws or https://medium.com/@babymoonfamily/denmarks-new-surrogacy-laws-are-a-breath-of-fresh-reality-303c35671b3c) has changed its legislation to facilitate easier recognition of children born through international surrogacy arrangements.
Unfortunately, the situation in Italy and lack of recognition of rainbow families there means that queer Italian IPs will not be able to pursue surrogacy in Thailand (https://www.babymoonfamily.com/original-articles/italy-attacks-surrogacy-rainbow-families or https://medium.com/@babymoonfamily/why-every-lgbtq-person-especially-intended-parents-ips-should-be-furious-at-italy-right-now-cfb8a4382532).
This change in Thailand could also set a precedent for other countries who have banned international surrogacy to potentially reopen. India banned international IPs in 2012, and they have since developed a robust framework for domestic surrogacy, with the first surrogacy in Nagpur, India being approved in March 2024 (7).
Georgia’s ban on international surrogacy came into effect on January 1, 2024 (8). While this ban is extremely recent, it does mean that once Georgia has a framework for more ethical and regulated surrogacy, it could follow Thailand in reintroducing an international approach.
Thailand also recognizes that they are uniquely well positioned for ART tourism and so want to capitalize on this. Fertility treatment in Thailand is now offered at 115 facilities nationwide, consisting of 67 clinics, 31 private hospitals and 17 public hospitals (2). This network can be leveraged to help the stagnating domestic population as well as bring in additional revenue from international IPs.
Now that the process is regulated with government oversight to help prevent human trafficking and exploitation, Thailand could again become a leader in international surrogacy. This time with a framework that allows for international IPs, GCs, and children to all have protection and assurances throughout the process.
While BabyMoon Family advocates for ethical surrogacy and focuses on the United States as the premier and ideal location for ART for queer men, the reality is that many cannot afford the procedures in the United States. These men look to other countries where they can afford to still build their rainbow families.
With that in mind, upcoming BabyMoon Family articles will focus on this unmet need to profile non-U.S. countries where commercial surrogacy is legal or possibly unregulated but remain a viable option for many queer intended fathers. We will look at medical services, cost, legal complexities, ethical challenges, logistical hurdles, and other aspects to help compare and contrast journeys in the U.S. and other countries.
Hopefully, this will help queer men to realize their dreams of becoming fathers while also pursuing the process in an ethical way to help protect IVF and surrogacy and all those involved in these amazing journeys, anywhere in the world.
References: