Thursday, July 31, 2014

Thai surrogacy is now dead in the water

A couple of days ago I wrote about how there was a crackdown in Thailand about surrogacy and gender selection.

Yesterday there was a meeting between the various IVF clinics, the Thai Medical Council, lawyers and others. The outcome of the meeting is ominous for those who undertake surrogacy in Thailand: it is over.

In summary, surrogacy is now only recognised in Thailand if:

  • the intended parents are a heterosexual married couple
  • who are medically infertile
  • the surrogacy is altruistic
  • and the surrogate is a blood relative.
It is no surprise that this will exclude almost every foreigner from pursuing surrogacy in Thailand. For Australians, this is significant- as about 400 babies were born in Thailand via surrogacy in the year ended 30 June 2012 to Aussie intended parents, and that number is likely to have increased since then.

The ruling coming out of the meeting, bearing in mind that there is now a military junta in charge in Thailand, is that surrogacy will be illegal in Thailand if:

  • the intended parent or parents are unmarried under Thai law (i.e. de facto couples, same sex couples and singles are excluded)
  • any money is paid to the surrogate
  • the removal of the child from Thailand without permission of Thai authorities will breach Thailand's human trafficking laws.
What impact this will have on those with existing arrangements, and those with embryos in Thailand, will remain to be seen. It is likely that those with embryos in Thailand- where they have donor sperm or egg- will be unlikely to use those embryos in Australia, and if they want to be used may need to use them somewhere else, such as the USA. Whether embryos will be able to be exported from Thailand is unknown in the current environment.

Watch this space. 

Monday, July 28, 2014

Crackdown in Thailand on surrogacy and gender selection

Thailand has until now been one of the major places that Australians go for surrogacy. As Australians have not been able (except for medical reasons) to undertake gender selection at home, they have undertaken gender selection in Thailand, amongst other countries.

It is illegal for those living in Queensland, NSW or the ACT to undertake commercial surrogacy in Thailand- but this has not stopped the deluge. 

This appears now to have changed. I have heard reports today that the Thai military government is cracking down on Thai surrogacy clinics and stopping gender selection (following widespread reports about a week or so ago in the Bangkok Post that the practice was widespread and that Chinese and Indian intended parents in particular were coming to Thailand for that purpose).

I am thankful to Sam Everingham from Families Through Surrogacy who graciously has allowed me to repost the following article from his website which comprehensively states the current situation in Thailand (and is consistent with what I have heard):

Surrogacy in Thailand

THAILAND UPDATE (27 July 2014)

Thailand’s military government on 22 July 2014 announced a review of all 12 Thai IVF clinics involved in surrogacy cases. Government concerns have arisen due to the following:
  • Commercial surrogacy is not generally acceptable in Thai society, so has to be conducted discretely. Industry growth has lead some operators to cross that line
  • The Thai Medical Council does not condone gender selection, despite a number of clinics offering it (particularly in response to growing Chinese demand)
  • There have been recent tragic cases of foreign parents not accepting disabled children born through surrogacy
  • Some unregistered surrogacy operators have been exploiting vulnerable surrogates and intended parents
  • There was concern that some Thai ART clinics are not certified by the Royal College of Obstetricians.
  • Under Thai medical guidelines it is not legal for IVF clinics to supply both surrogates and egg donors. At least two have been doing that for some years

What Changes Have Occurred to Date?

  • The Thai government has called a press conference on the issue and released media
  • An audit of each clinic is currently underway
  • AllIVF (Dr Pisit) which supplies IVF services to a large number of surrogacy agencies has been audited and has been asked to cease conducting medical procedures until they put on a certified obstetrician
  • Most Thai-based surrogacy websites have been taken off-line by operators to review content to ensure it complies with Thai medical guidelines (ie avoid prosecution)
  • Gender selection has ceased and is likely to be permanently banned

What Does This Mean for The Immediate Future?

IPs attending Births/ Exiting Thailand

  • Discretion must be observed by IPs at birth hospitals, avoiding mention of surrogacy (this has always been advised, but more important now)
  • Same sex couples in particular are advised to be discrete about their relationship status
  • Extended visiting hours for IPs at some hospitals may not be available
  • IPs who engaged direct with clinics such as AllIVF are advised to seek specific advice from their clinic prior to engaging with Thai authorities

IPs with Pregnant Surrogates

  • Thai surrogacy agencies and agents remain open for day-to-day business, however medical procedures may not be permitted on site
  • Existing contracts are likely be honoured
  • Surrogates may not be able to have their routine checkups at the surrogacy clinic you engaged with. Instead clinics have arranged for these checkups to be done at local hospitals
  • IPs should expect delays in receiving results of surrogate scans

IPs in contract but no pregnancy

  • Existing client contracts are likely be honoured, assuming agencies attain the appropriate accreditation
  • Procedures for engaging with donors, surrogates and IVF treatment may be altered
  • Embryo transfer procedures may be delayed

Future Thai IPs

  • Thai agencies are not taking on new clients until the new guidelines are resolved
  • Agencies will not be able to provide both surrogates, donors and IVF services
  • Future IPs must source surrogates/donors from an independent agency
  • It is possible that paid egg donation will not be allowed amongst Thai woman in the future
  • Future Thai surrogate contracts may need to be altruistic (this still to be confirmed)

What are next steps?

The Thai government is calling a meeting of ART clinics and doctors for 30th July. At this meeting acceptable standards will be set. Industry practice is likely to be tightened and improved.
PGD will only be available for medical reasons and not for gender selection.

Tuesday, July 1, 2014

I'm a surrogacy lawyer, not a doctor!

A few years ago I knew little of the medical jargon concerning IVF. As I began to see more and more clients who could not have children, I heard more and more, and became familiar with more and more medical terms, such as polycystic ovary syndrome, for example.

It is good to be aware of these things, when handling surrogacy and egg donation. The reason might surprise you. When new clients come to me to talk about surrogacy or egg donation, often their thoughts turn to surrogacy. Surrogacy of course is the topic apparently on everyone's lips. There are many websites and some support groups for those facing the surrogacy journey. By comparison there is relatively little about egg donation.

I mention this because some clients are adamant that they should be proceeding with surrogacy, but on careful investigation, it seems that they do not need involvement of a surrogate and all that goes with that, but all they need is egg donation. Often when I discuss these issues, I help raise my clients' awareness of the issues involved. I invite them to talk with their medical specialists so that they can understand the difference between egg donation, and surrogacy with egg donation.

New clients also want to know how long surrogacy might take. My answer is simple: wherever it happens in the world, typically surrogacy will take somewhere in the range of 18-24 months. Natural processes largely govern how long it takes to make a baby. When they pick up their jaws and realise that they cannot have a baby now, my clients want to know why it cannot be shorter than 18 months. My answer is that it comes down to basic numbers: 9 months for a pregnancy and another 6 months for sexual transmitted infection controls (STI). 15 months just with those two steps- assuming that everything else is sorted in record time and that the surrogate is pregnant on the first cycle.

But I then get asked why is HIV testing necessary? I would have thought the answer was obvious.

I then get asked- but why 6 months? My answer is also simple: this is the standard time allowed for by doctors. If you don't like it- ask the doctor concerned. This is a medical question, not a legal question. As I point out to my clients, I am a surrogacy lawyer, not a doctor!