International Commercial Surrogacy: Thailand’s Recent Ban on Commercial Surrogacy for Foreigners
Posted By Katherine Lo, Apr 20, 2015
Due to advances in technology that allow for gestational surrogacy and greater acceptance in public opinion, global surrogacy has achieved an unprecedented popularity. Consequently, medical tourism, where consumers of health care travel around the world to receive cheaper medical care, now includes reproductive tourism. Despite many countries’ prohibitions or restrictions on surrogacy arrangements, the market for international surrogacy has grown greatly, and international, or global, surrogacy is a booming business.
The responses by scholars to international surrogacy vary widely. Some advocate for minimal governmental regulation because of fears of paternalistic limitation on a competent woman’s choice to become a surrogate, and some voice concerns that a ban could create a black market in surrogacy with even fewer protections for the parties involved. However, other commentators compare this to slavery or prostitution.
Recently, Thailand passed a law to outlaw the use of Thai surrogates by foreign couples. The law stipulates that foreigners will be prohibited from using Thai surrogates unless they have been married to a Thai national for at least three years, and a violation of the law carries a prison sentence of up to ten years with agents for surrogate mothers also facing lengthy prison sentences. The law also stipulates that surrogate mother must be over 25. This was in response to several surrogacy scandals that occurred in Thailand in the past year, and the “rent-a-womb” industry that has made the Southeast Asian country a top destination for fertility tourism. Although Thailand wishes to curb the “renting” of wombs by foreigners, critics say that making commercial surrogacy illegal could push the industry underground, making it harder for patients to access quality physicians and medical care. However, some are skeptical that the legislation will be implemented.
There are many ethical concerns that surround international commercial surrogacy, and, as the international surrogacy industry will continue to grow, regulators and scholars need to be prepared with thoughtful, nuanced responses.
 Gestational surrogacy allows for scientists to create an embryo with an egg and sperm from the intended parents (or from donor eggs and sperm) through in vitro fertilization (IVF) procedure and then transfer it into the uterus of a genetically unrelated surrogate. This is in contrast to the traditional non-gestational surrogacy where the surrogate becomes pregnant through artificial insemination by sperm from the intended father or sperm donor and her own egg, and the surrogate is genetically related to the child. After a series of case law where traditional surrogates decided they wished to raise the infant they carried, the absence of a genetic tie has made gestational surrogacy vastly more popular than traditional surrogacy. Mohapatra, Seema, Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy, 30 Berkeley J. Int’l L. 412, 413 (2012).
 Id. at 437.
 Xavier Symons, Thailand outlaws foreign surrogacy, BioEdge: bioethics news from around the world, Feb. 28, 2015, http://www.bioedge.org/index.php/bioethics/bioethics_article/11342.
 Thailand bans surrogacy for foreigners in bid to end rent-a-womb tourism, the straits times, Feb. 20, 2015, http://www.straitstimes.com/news/asia/south-east-asia/story/thailand-bans-surrogacy-foreigners-bid-end-rent-womb-tourism-2015022.
 Supra Note 8; Supra Note 10
 Supra Note 8
 Supra Note 1 at 450.