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Baby Gammy case: Thailand's ruling military considers draft law banning commercial surrogacy

 

Photo: The case of baby Gammy has led to a rethink of commercial surrogacy laws in Thailand. (Reuters: Damir Sagolj)

Thailand's ruling military is considering draft laws to ban commercial surrogacy, creating uncertainty for Australians who already have pregnant surrogates in the country.

The changes come in the wake of controversy surrounding a West Australian couple accused by their Thai surrogate of abandoning their newborn son - known as baby Gammy, who has Down syndrome - and only taking home his healthy twin sister.

It was later revealed father David Farnell has 22 child sex convictions, including unlawful and indecent dealing with girls as young as seven when he was in his 20s, but he says the girl is "100 per cent safe" in his care.

Thailand's newly formed national assembly, which is heavily dominated by members of the military, has now been handed the draft laws. 

When approved, they will mean surrogacy can only take place when a married couple and a relative are involved. 

The laws may also include a provision for a baby to remain with the surrogate for between three and six months for breastfeeding.

The surrogate will also be considered as the child's legal mother.

The ruling army general does not want Thailand to be a surrogacy hub and is expected to move quickly to outlaw the practice, essentially ending a lucrative foreign market.

It remains unclear what the laws will mean for Australians who already have pregnant surrogates in Thailand.

Impoverished Thai mother Pattaramon Chanbua, 21, told the ABC earlier this month she gave birth to twins after agreeing to be a surrogate for Mr Farnell and his wife Wendy, with a promised payment of about $16,000.

She claims the couple rejected Gammy and returned to Australia with his healthy sister. The pair deny abandoning the boy.

Last week, Foreign Affairs Minister Julie Bishop said she was in contact with authorities in Thailand about the issue.

Thai authorities said Ms Chanbua would not be charged with any offence.

However, the doctor and clinic owner involved in the surrogacy case would be prosecuted - they could face up to three years in jail.

Since the case of baby Gammy came to light, a number of fertility clinics have been raided and shut down.

http://www.abc.net.au/news/2014-08-13/thai-military-considers-draft-law-banning-commercial-surrogacy/5668846

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Draft law on surrogacy ready to be submitted for NLA review

THE USE of a surrogate mother remains a grey area for Thailand but there is hope that draft legislation now ready for review by the National Legislative Assembly (NLA) will finally bring clarity - and protect children born through the use of assisted reproductive technology (ART).

Because there is no law in relation to surrogacy, people seeking to use a surrogate mother to have a child won't always be able to do this, whether they pay money or not, Thai lawyer Sithichok Sricharoen said.

However, with no legal punishment for using surrogates at present, this meant a special law needed to be passed to make it illegal, he said.

Using a surrogate mother was not human trafficking, because it was about giving birth, Sithichok said. The civil code said a child born to a woman is that woman's legal child; surrogacy was not possible in the current legal perspective.

There are two types of surrogacy: "full surrogacy", which requires an embryo from the spouse's egg and sperm to be implanted to the surrogate mother's womb, and "partial surrogacy", which required the father's sperm and the surrogate mother's egg.

The Social Development and Human Security Ministry has put forward the draft bill, which has been reviewed by legal experts on the Council of State and is pending deliberation by the NLA. Key facets of the draft bill include:

1. The couple wishing to have a child through a surrogate mother must be legally wed.

2. The surrogate mother must be a relative to one of the spouse, but must not be the spouse's parents or child.

3. The surrogate mother must have at least one child before and, if she has a husband, she must get his consent first.

If these components are not met, the applicant must ask for permission from a government-endorsed committee to control the use of ART on a case-by-case basis and the committee's order is final.

4. It is prohibited for anyone to act as a middleman to collect payment or benefits as in a commercial activity or to reap benefits from arranging or encouraging surrogacy. It is also prohibited for a medical professional to carry out the ART procedure for a woman's pregnancy, with knowledge of or with reasons to believe that the woman is a surrogate mother for commercial gain.

5. When a child is born from artificial insemination or ART via donors' egg and sperm, the woman who gave birth shall be the child's legal mother and the woman's husband who consented to the pregnancy shall be the child's legal father. The donors whose egg and sperm were used shall have no right over the child.

6. In a case of a child born via surrogacy, using sperm and egg from a couple who want a surrogate, or others, the couple shall be the child's legal parents but they must allow the surrogate mother to breastfeed the child for at least three months. In cases in which the child is raised in a difficult situation, as per the Child Protection Act, the surrogate mother can sue or demand custody of a child, and a court can base judgement what appears best for the child's happiness and benefit.

There has been much debate in recent years over this sensitive issue. Those who support surrogacy claim the state should not intervene if people's actions don't harm others, saying that surrogacy would mutually benefit the couple and the surrogate mother and prevent child abduction or child trafficking.

Those opposed to surrogacy have said it is immoral and against human nature and would lead to exploitation, such as surrogacy for hire, as well as affecting the child and society. They also raised the question of what to do if a child is born prematurely or disabled, or if the couple changes their mind, and what if the couple only wants one child but the surrogate mother gives birth to twins or triplets.

Sources: http://www.nationmultimedia.com/national/Draft-law-on-surrogacy-ready-to-be-submitted-for-N-30240331.html

Supreme Court to decide plea regarding restrictions of Medical Termination of Pregnancy after 20 weeks

Hon’ble Supreme Court has agreed to examine the constitutional validity of the law that bans abortions after 20 weeks of pregnancy unless there’s an immediate threat to the would-be mother’s life. The Supreme Court on 5-8-2014 has decided to hear arguments on a plea seeking to extend the 20-week legal limit for abortion under the Medical Termination of Pregnancy (MTP) Act, 1971.

The Medical Termination of Pregnancy Act, 1971, allows abortions only till the 20th week of pregnancy for reasons such as severe foetal abnormalities or a grave risk to the pregnant woman’s health.

A bench headed by Justice Ranjan Gogoi posted the matter challenging the legal provision. Medical experts and women’s activists have for years been recommending that abortions be allowed beyond 20 weeks in case of a risk to the pregnant woman’s mental or physical health — even if it is not life-threatening — or severe foetal abnormalities. This is in line with the law in most countries where abortions are legal.

Senior advocate, appearing for petitioners Mrs X and Mrs Y (who suffered due to such provision), argued that the existing 20-week limit under the MTP Act violated women’s rights to bodily integrity as even in the case of severe foetal abnormalities, it forced women to carry pregnancies. He argued that with the advancement in technology, the restriction did not hold good as the abnormalities in the foetus could be detected earlier.

Three people have approached the Supreme Court, seeking an extension of the limit on abortion from 20 to 28 weeks. Patient Mrs. Niketa Mehta in year 2008 approached Hon’ble Bombay High Court for allowing her to undergo abortion after a cardiac defect was detected in the foetus in the 24th week of gestation. However, at that time her petition was rejected by the Hon’ble Bombay High Court stating that provisions allowing MTP up to 20 weeks are constitutional, valid and legal.

 

However, in present petition before Hon’ble Supreme Court, it is argued that, the legislation was made on the basis of a study carried out in 1971. The Medical Termination of Pregnancy (MTP) Act also came into force in 1971. Now, with advanced technology, there is no harm in women going for abortion at any stage. Even a committee of experts has suggested that extension will cause no mental or physical harm.

The National Commission for Women, the Federation of Obstetricians and Gynecologists of India (FOGSI), the international community and women's groups agree that the 20-week limit imposed by the MTP Act is irrational, outdated and unconstitutional. Out of the 26 million births that occur in India every year, approximately 2-3 per cent foetuses have a severe congenital or chromosomal abnormality, the petition said.

Most countries, which have legalised abortion, allow termination after 20 weeks in case of severe foetal abnormalities or to protect the mental or physical health of a pregnant woman.

However, it is pertinent to note that the period between 16 and 20 weeks is the ideal time to check for anomalies in foetuses through Sonography. Doctors generally ask a patient to undergo tests around the 18th week to find abnormalities.

It is true that some anomalies are picked only at a later stage of pregnancy but don't know whether raising MTP to the 28th week will be a good decision.

http://surrogacyindia.com/updateevent.php?cat_id=5&id=86

Children born through surrogates stranded

SOME 50 children born through Thai surrogates for Israeli couples have remained in Thailand since late last year due to an issue over their travel documents.

Thathree Chaowachata, chief of the Foreign Ministry's Department of Consular Affairs' Legalisation and Naturalisation Division, said these cases included homosexual couples.

Speaking at a Bangkok seminar, Thathree said the parents had applied for the children to leave the country using Israeli travel documents.

However, after consultation with police, he said it was to be determined if using a Thai as a surrogate who was not a blood relative fell within the frame of human trafficking.

Natthajak Patamasingh na Ayudhya, the Office of the Attorney-General's International Affairs Department executive, said interpreting the law in this case would take a long time, so the ruling junta should urgently consider the matter.

He said the Social Development and Human Security Ministry's draft legislation for the protection of children born through the use of assisted reproductive technology (ART) was currently being considered by the Council of State.

The bill would require ART procedures to be completed by a certified doctor, not be advertised commercially and the child must be guaranteed a good future.

Natthajak said that without this bill, people would use legal loopholes to benefit from the surrogacy business, which would lead to more social problems.

The Medical Council of Thailand will meet in mid-August to review its regulation for ART service standards in a bid to prevent abuses such as illegal surrogacy or embryo sex selection.

Council president Dr Somsak Lohlekha said the body would amend the law so it is clearer in the banning of ART for homosexuals and single women, and the banning of egg-donation advertisements.

Somsak said under the law only a spouse's blood relative, who has at least one child, can be a donor. 

 

http://www.nationmultimedia.com/national/Children-born-through-surrogates-stranded-30239973.html