Thailand Bans Foreign Commercial Surrogacy

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

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.” Continue reading

Tomorrow: Global Reproduction

pregnant_bellyGlobal Reproduction: Health, Law, and Human Rights in Surrogacy and Egg Donation
November 5, 2014, 5:00 PM – 7:00 PM
Wasserstein Hall, Room 1010, Harvard Law School

Please join us for a screening of the documentary Can We See the Baby Bump, Please?, followed by a panel discussion of the legal and human rights issues surrounding surrogacy and egg donation in a global context.

The film screening will begin at 5PM; the panel discussion will begin at 6PM.  Feel free to join for one or both segments. The panelists are:

We encourage attendees to read Risk Disclosure and the Recruitment of Oocyte Donors: Are Advertisers Telling the Full Story? prior to the event.

Co-sponsored by Our Bodies, Ourselves and the South Asia Institute at Harvard University, with support by the Oswald DeN. Cammann Fund.

Upcoming Event: Global Reproduction

pregnant_bellyGlobal Reproduction: Health, Law, and Human Rights in Surrogacy and Egg Donation
November 5, 2014, 5:00 PM – 7:00 PM
Wasserstein Hall, Room 1010, Harvard Law School

Please join us for a screening of the documentary Can We See the Baby Bump, Please?, followed by a panel discussion of the legal and human rights issues surrounding surrogacy and egg donation in a global context.

The film screening will begin at 5PM; the panel discussion will begin at 6PM.  Feel free to join for one or both segments. The panelists are:

We encourage attendees to read Risk Disclosure and the Recruitment of Oocyte Donors: Are Advertisers Telling the Full Story? prior to the event.

Co-sponsored by Our Bodies, Ourselves and the South Asia Institute at Harvard University, with support by the Oswald DeN. Cammann Fund.

Prohibitions on Egg and Sperm Donor Anonymity and the Impact on Surrogacy

By: Gaia Bernstein

[cross-posted from Concurring Opinions]

Egg and sperm donations are an integral part of the infertility industry. The donors are usually young men and women who donate relying on the promise of anonymity. This is the norm in the United States. But, internationally things are changing. A growing number of countries have prohibited egg and sperm donor anonymity. This usually means that when the child who was conceived by egg or sperm donation reaches the age of eighteen he can receive the identifying information of the donor and meet his genetic parent.

An expanding movement of commentators is advocating a shift in the United States to an open identity model, which will prohibit anonymity. In fact, last year, Washington state adopted the first modified open identity statute in the United States. Faced by calls for the removal of anonymity, an obvious cause for concern is how would prohibitions on anonymity affect people’s willingness to donate egg and sperm. Supporters of prohibitions on anonymity argue that they only cause short-term shortages in egg and sperm supplies. However, in a study I published in 2010, I showed that unfortunately that does not seem to be the case. My study examined three jurisdictions, which prohibited donor gamete anonymity: Sweden, Victoria (an Australian state) and the United Kingdom. It showed that all these jurisdictions share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

In a new article, titled “Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy,” I examine the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy. Surrogacy has not been part of the international debate on donor gamete anonymity. But the situation in the United States is different. Unlike most foreign jurisdictions that adopted prohibitions on anonymity, the practice of surrogacy in the United States is particularly reliant on donor eggs because of the unique legal regime governing surrogacy here.  Generally, there are two types of surrogacy arrangements: traditional surrogacy and gestational surrogacy. In a traditional surrogacy arrangement the surrogate’s eggs are used and she is the genetic mother of the child, while in gestational surrogacy the intended mother’s eggs or a donor’s eggs are used and the surrogate is not the genetic mother of the conceived child. Most U.S. states that expressly allow surrogacy provide legal certainty only to gestational surrogacy, which relies heavily on donor eggs, while leaving traditional surrogacy in a legal limbo. Without legal certainty, the intended parents may not be the legal parents of the conceived child, and instead the surrogate and even her husband may become the legal parents. Infertility practitioners endorse the legal preference for gestational surrogacy also for psychological reasons, believing that a surrogate who is not genetically related to the baby is less likely to change her mind and refuse to hand over the baby.

Continue reading