Thai surrogacy is now dead in the water

A couple of days ago I wrote about how there was a crackdown in Thailand about surrogacy and gender selection.

Yesterday there was a meeting between the various IVF clinics, the Thai Medical Council, lawyers and others. The outcome of the meeting is ominous for those who undertake surrogacy in Thailand: it is over.

In summary, surrogacy is now only recognised in Thailand if:

• the intended parents are a heterosexual married couple
• who are medically infertile
• the surrogacy is altruistic
• and the surrogate is a blood relative.

It is no surprise that this will exclude almost every foreigner from pursuing surrogacy in Thailand. For Australians, this is significant- as about 400 babies were born in Thailand via surrogacy in the year ended 30 June 2012 to Aussie intended parents, and that number is likely to have increased since then.

The ruling coming out of the meeting, bearing in mind that there is now a military junta in charge in Thailand, is that surrogacy will be illegal in Thailand if:

• the intended parent or parents are unmarried under Thai law (i.e. de facto couples, same sex couples and singles are excluded)
• any money is paid to the surrogate
• the removal of the child from Thailand without permission of Thai authorities will breach Thailand's human trafficking laws.

What impact this will have on those with existing arrangements, and those with embryos in Thailand, will remain to be seen. It is likely that those with embryos in Thailand- where they have donor sperm or egg- will be unlikely to use those embryos in Australia, and if they want to be used may need to use them somewhere else, such as the USA. Whether embryos will be able to be exported from Thailand is unknown in the current environment.

Watch this space. 

Thai crackdown on surrogacy and gender selection

Thailand has until now been one of the major places that Australians go for surrogacy. As Australians have not been able (except for medical reasons) to undertake gender selection at home, they have undertaken gender selection in Thailand, amongst other countries.

It is illegal for those living in Queensland, NSW or the ACT to undertake commercial surrogacy in Thailand- but this has not stopped the deluge. 

This appears now to have changed. I have heard reports today that the Thai military government is cracking down on Thai surrogacy clinics and stopping gender selection (following widespread reports about a week or so ago in the Bangkok Post that the practice was widespread and that Chinese and Indian intended parents in particular were coming to Thailand for that purpose).

I am thankful to Sam Everingham from Families Through Surrogacy who graciously has allowed me to repost the following article from his website which comprehensively states the current situation in Thailand (and is consistent with what I have heard):

Surrogacy in Thailand

THAILAND UPDATE (27 July 2014)

Thailand’s military government on 22 July 2014 announced a review of all 12 Thai IVF clinics involved in surrogacy cases. Government concerns have arisen due to the following:

• Commercial surrogacy is not generally acceptable in Thai society, so has to be conducted discretely. Industry growth has lead some operators to cross that line
• The Thai Medical Council does not condone gender selection, despite a number of clinics offering it (particularly in response to growing Chinese demand)
• There have been recent tragic cases of foreign parents not accepting disabled children born through surrogacy
• Some unregistered surrogacy operators have been exploiting vulnerable surrogates and intended parents
• There was concern that some Thai ART clinics are not certified by the Royal College of Obstetricians.
• Under Thai medical guidelines it is not legal for IVF clinics to supply both surrogates and egg donors. At least two have been doing that for some years

What Changes Have Occurred to Date?

• The Thai government has called a press conference on the issue and released media
• An audit of each clinic is currently underway
• AllIVF (Dr Pisit) which supplies IVF services to a large number of surrogacy agencies has been audited and has been asked to cease conducting medical procedures until they put on a certified obstetrician
• Most Thai-based surrogacy websites have been taken off-line by operators to review content to ensure it complies with Thai medical guidelines (ie avoid prosecution)
• Gender selection has ceased and is likely to be permanently banned

What Does This Mean for The Immediate Future?

IPs attending Births/ Exiting Thailand

• Discretion must be observed by IPs at birth hospitals, avoiding mention of surrogacy (this has always been advised, but more important now)
• Same sex couples in particular are advised to be discrete about their relationship status
• Extended visiting hours for IPs at some hospitals may not be available
• IPs who engaged direct with clinics such as AllIVF are advised to seek specific advice from their clinic prior to engaging with Thai authorities

IPs with Pregnant Surrogates

• Thai surrogacy agencies and agents remain open for day-to-day business, however medical procedures may not be permitted on site
• Existing contracts are likely be honoured
• Surrogates may not be able to have their routine checkups at the surrogacy clinic you engaged with. Instead clinics have arranged for these checkups to be done at local hospitals
• IPs should expect delays in receiving results of surrogate scans

IPs in contract but no pregnancy

• Existing client contracts are likely be honoured, assuming agencies attain the appropriate accreditation
• Procedures for engaging with donors, surrogates and IVF treatment may be altered
• Embryo transfer procedures may be delayed

Future Thai IPs

• Thai agencies are not taking on new clients until the new guidelines are resolved
• Agencies will not be able to provide both surrogates, donors and IVF services
• Future IPs must source surrogates/donors from an independent agency
• It is possible that paid egg donation will not be allowed amongst Thai woman in the future
• Future Thai surrogate contracts may need to be altruistic (this still to be confirmed)

What are next steps?

The Thai government is calling a meeting of ART clinics and doctors for 30th July. At this meeting acceptable standards will be set. Industry practice is likely to be tightened and improved.
PGD will only be available for medical reasons and not for gender selection.

Great quote about same sex marriage

I came across today this great quote from Judge McShane hearing the marriage equality case in Oregon. The words summarise the story:

"On this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise."

Same sex couples in the Family Court

A fear of many LGBT people in ending up in the Family Court is being judged to be different, and being the subject to the whims of homophobic judges and lawyers.

The reality is different. Although there is discrimination in some aspects of family law- the inability to get married or to adopt, in Family Court or Federal Circuit Court cases these is no active discrimination from judges or the law. Cases are decided as they should be- on their merits. It has probably helped that several gay and lesbian judges have been appointed, and that many woman have been appointed- so that in many ways old mindsets have gone.

Legal reforms have changed dynamics of cases- and thinking. For example- the recognition of the non-biological mother as a parent was a huge advance for the recognition of the role of these women. As a parent her role will hopefully be recognised and cherished.

More and more, sadly, there are fights between gay or lesbian couples heading to court, or the train wreck cases of lesbian couples arguing with their gay sperm donors about children. The cases are usually those of other warring couples: about money and kids, and domestic violence. Some of the fine tuning in a case might be different- but the substance is the same: who made the financial and non-financial contributions, who has greater future needs, what is in the best interests of the child.

If going down the family law path, get good legal representation which is LGBTI friendly, and if needed consider going to a community legal service like the LGBTI Legal Service in Brisbane for free legal advice each Wednesday night. Family lawyers including me volunteer there to help those in need.