During much of the 2000’s, Thailand was branded “the womb of Asia” thanks to its incredibly lucrative commercial surrogacy business. However, on February 19, 2015, the Thai legislature voted 160-2 in favor of banning commercial surrogacy. This new law prohibits all foreign and same-sex couples from seeking surrogacy within Thailand and places severe restrictions on heterosexual Thai couples wishing to partake in the practice. Only couples married for three years or longer, with one Thai partner can use surrogacy in the country. The surrogate must be a Thai citizen, over 25 years old, and have a familial relationship to one of the parents. Perhaps the most significant clause prohibits any monetary exchange between the surrogate mother and the potential parents. If caught, citizens can expect up to a ten-year jail sentence and a hefty fine.
This law, although just recently passed, has been circulating through the Thai government for almost five years. However, due to military coups and other political and environmental crises, the bill was never given much priority until the recent surfacing of two large scandals last year.
The first scandal involved an Australian couple who took home only one baby from the set of twins they paid a Thai surrogate mother to carry. The abandoned child, now an honorary Australian citizen named Gammy, was born with Downe’s syndrome. The couple, Wendy and David Farnell, said they wanted a refund from the surrogacy service for not informing them of the baby’s maladies in advance, seeing as they would have asked for the pregnancy to be terminated. As media coverage of the story increased, it was discovered that Mr. Farnell was convicted for 22 counts of child sex offences, for which he was imprisoned. The baby now lives with his birth mother in Thailand.
Unfortunate scandals such as Baby Gammy’s story are why so many people favor banning commercial surrogacy. Many consider it an exploitation of marginalized Thai women by wealthy foreigners. It is the case that commercial surrogacy is an extremely lucrative business, with each successful pregnancy costing almost $10,000. Moreover, surrogate mothers are treated extremely well, their health being of the utmost priority to the couples. Many are even placed in homes for the duration of the pregnancy. However, this idealized nine-month stability, some say, is the result of a Thai woman selling her body as a means to make money and temporarily be taken care of. Critics parallel commercial surrogacy to prostitution and the controversial organ market. The question remains, then: where should we draw the line?
A second horrific incident came to light shortly after the Baby Gammy story died down. This one involved a single Japanese male, Mitsutoki Shigeta, who sought surrogacy from 11 different Thai women during the same short timespan, resulting in him fathering 15 children. Officials raided his apartment in Bangkok and discovered several infants and a pregnant surrogate woman. The greatest concern was whether or not he was trafficking the children, or potentially selling their organs on the black market.
After these events and the significant international media coverage they received, it seemed to be the right time for Thailand’s government to intervene and finally pass a law banning commercial surrogacy. Sriamporn Salikoop, a Thai Supreme Court judge, said the ban was put in place to prevent abuse of surrogate mothers; “Giving birth to a human is not like breeding animals.” A member of the country’s National Legislative Assembly also said the measure is to prevent Thailand from becoming “the womb of the world.”
Regardless of these scandals and the negative connotations associated with the practice, there are those who do not favor the law. Those who support commercial surrogacy as a practice believe that it is a simple way to be financially stable while simultaneously helping a couple carry a child. Pakson Thongda, a 42 year-old Thai woman whose daughter sells her eggs to fertilization clinics said “There’s nothing wrong with surrogacy – you are helping people who can’t have a baby. I understand the feeling of a mother who really, really wants a child.”
Considering Thailand’s dark history of human rights violations, it is hard to believe the country’s government had a sudden clarity of conscience. Their presentation of the ban as a solution to a moral problem rings hollow. The infamous and severely unregulated sex and human trafficking industries are perfect examples of Thailand’s lack of concern towards commercialized human rights abuses.
It seems more than likely that the ban was imposed as a way of expanding governmental presence in the region. Further, there are those who suggest it is a method for the Thai government to block homosexual couples from having children in the country. Although Thailand is known for being relatively tolerant of homosexuality, it was only in 2002 that the country stopped classifying it as an illness. Moreover, Thailand does not have a “hate crime” law, and thus does not persecute crimes against the LGBT community as such. However, Thomas Fuller, the Southeast Asia correspondent for the New York Times said, “My impression is that the law was mainly designed to crack down on what the Thai authorities saw as unregulated business ridden with moral quandaries.”
Regardless of the motives behind the ban, it will undoubtedly result in some serious issues. The first and most basic is that people who are currently mid-pregnancy are now in limbo. It is unknown whether they will be allowed to take home their child and how the monetary exchange with the surrogate mother will be finalized. Second, it is very likely that the ban will result in a black market for surrogate mothers. This is similar to the organ donation controversy, which resulted in an enormously unregulated black market for organs. The emergence of such a market could endanger the lives of mothers and children if the practice continues, but without regulation.
There is a big discrepancy between the government’s narrative and the probable results of the ban. In theory, it sounds as though the intentions of the regime are purely humanitarian. However, a closer look at the potential consequences tells a different story. With a black market more than likely to emerge, and the lives of children on the line, it seems to be a rather irresponsibly abrupt transition from legality to illegality. It is not unlikely that the government did aim to better the situation of the surrogate mothers and children, but it is possible the outcome of the law will result in more severe problems. Without strict regulation, it is impossible to know what direction the practice will take; only time will tell whether or not the ban was a wise decision.