Legal Issues with Section 56 of the Protection of a Child Born by Medically Assisted Reproductive Technology Act B.E. 2558 (2015)

Abstract

Parental recognition of surrogate children born of unqualified intended parents or non-compliant surrogacy falls right in the gap of both public and private laws. Section 56 of the Protection of a Child born by Medically Assisted Reproductive Technology Act (ART Act) was incorporated with an aim to protect the rights of surrogate children born prior to the enactment of the law. Due to its rigid wordings, it limits the rights of some intended parents to file for the child legitimation and jeopardizes the rights of the child to have proper parentage.

By viewing the child’s right as paramount, true and honest intent of the intended parents together with the principle of the best interests of the child should be jointly applied when determining parentage of surrogate children. To prevent the children from exploitation, intended parents must prove their parental capability and inspection by government authorities should take place after the court has issued the order.

Surrogate children deserve the right to know their birth history through proper birth registration process. Recognition of Thai citizenship under the principle of jus soli must be made available for surrogate children who may be exposed to risks of becoming stateless. Government authorities must admit that the children, whether they are born naturally or by surrogacy, must be entitled to have a family and receive protection from the government under Article 16 of the Universal Declaration of Human Rights. Most importantly, the dignity of surrogate children as human beings must be upheld and they must be treated equally like all other children.