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Surrogacy Parentage After the 2015 ART Act — Legal Parents and Foreign Intended Parents
Intended Parents (Petitioners) v Surrogate Mother / Department of Children and Youth (Respondent)
Composite summary — not a single reported case. This entry distils a settled line of Thai Supreme Court (Dika / ฎีกา) authority for legal education. It is not a transcript of one reported judgment, and the heading is not a citable case number. Do not cite it as specific case law — consult a Thai-qualified lawyer for the authoritative Dika number and current application.
Facts
Following the 2014 surrogacy scandals and the Protection of Children Born Through Assisted Reproductive Technologies Act B.E. 2558 (2015) (in force 30 July 2015), surrogacy in Thailand was tightly restricted. Permitted surrogacy is limited to altruistic arrangements where the intended parents are a married Thai couple (or at least one party is Thai) suffering medically certified infertility, and where the surrogate is a relative meeting prescribed criteria. Commercial surrogacy and surrogacy for foreign-only intended parents are prohibited. Cases reaching the courts have included transitional disputes from pre-2015 arrangements, applications for legal recognition of intended parentage, and applications by foreign intended parents who entered agreements abroad and sought enforcement in Thailand.
Legal Issue
How the ART Act allocates legal parentage in permitted Thai surrogacy arrangements, and what status Thai courts give to commercial or foreign-only surrogacy arrangements.
Holding
The courts (with appellate confirmation) have held that under the ART Act: (i) only altruistic surrogacy involving a married couple with at least one Thai spouse and a qualifying relative surrogate is permitted; (ii) where the arrangement complies, the intended parents are recognised as the legal parents on application to the Central Juvenile and Family Court, subject to approval of the medical institution's protocol by the regulatory committee; (iii) commercial surrogacy is a criminal offence — the contract is unenforceable, and the surrogate mother remains the legal mother under Section 1546 CCC unless and until a parentage order is obtained; (iv) foreign intended parents using a Thai surrogate outside the Act's permitted scope cannot obtain a Thai parentage order and may face criminal exposure; (v) foreign surrogacy orders sought to be recognised in Thailand are examined for public-order compatibility under the Conflict of Laws Act and are commonly refused where they involve commercial or non-Thai surrogacy.
Reasoning
The ART Act is the legislative response to commercial-surrogacy abuses. Its restrictions are matters of public order. The CCC parentage rules (Sections 1536–1547) interact with the ART Act: the gestational mother is the legal mother until a court order substitutes; in non-compliant arrangements no order is available. Conflict-of-laws recognition of foreign orders defers to Thai public order.
Significance
The defining doctrine for every fertility-treatment, IVF, and parentage matter touching Thailand. Highly relevant to mixed-nationality couples considering ART, to LGBT+ couples (currently excluded from the ART Act's surrogacy provisions even after the 2024 Marriage Equality Act), and to Thai citizens approached as surrogates.
Practical Takeaway
Do not enter a commercial or foreign-only surrogacy arrangement involving Thailand — it is a criminal offence and produces no enforceable parentage order. Mixed-nationality couples and LGBT+ couples considering family-building through ART should take Thai counsel BEFORE any embryo transfer; the legal-parent question must be designed at the start, not litigated at the birth.
Cited Statutes
- Protection of Children Born Through ART Act B.E. 2558 (2015)
- Civil and Commercial Code, Sections 1536–1547
- Marriage Equality Act B.E. 2567 (2024) (interaction with ART parentage rules — under continuing reform)
- Conflict of Laws Act B.E. 2481 (1938)
This entry summarises a representative line of authority from the Thai Supreme Court (ฎีกา). It is intended for general legal education only and is not a substitute for advice from a Thai-qualified lawyer. Individual Dika case numbers are being verified against primary sources; until then these entries are presented as composite doctrinal summaries.
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