Babies born in Thailand via surrogacy are both Thai and Australian citizens. Typically they will have no genetic relationship with the Thai surrogate, and will be genetically the children of both Australian parents, or be the child of an Australian father and of an anonymous (and not necessarily Thai) egg donor.
Under Thai law the child is that of the surrogate, who is considered to be the mother. If she is married, the child is also the child of her husband - irrespective of the intention or genetics.
Under Australian law, namely section 16 of the Australian Citizenship Act 2007 (Cth), a child born overseas to an Australian parent is entitled to Australian citizenship. if there is a genetic link to the Australian parent, or the Australian citizen at the time of the child's birth, even without a genetic link is considered in the wider sense of the word to be a parent, then the child will be entitled to Australian citizenship.
It is very worrying that the Thai government is considering charging intended parents and surrogates with child trafficking charges if these children leave Thailand without the Thai government's approval. What does it say about this Thai government that without notice it seems to change the law retrospectively, making what was one legal not illegal, and victimising parents, surrogates and especially the children?
I am very worried about what might happen to the surrogates and especially to the babies. I cannot think of a much worse outcome for a child, remembering that most of these children will not look like other Thai children, than being stuck in a Thai orphanage for the rest of its childhood- never being adopted out because it is different, never knowing what life might have been like if only it had been allowed to come to Australia to be with the people who always sought a child, love it, and at least in one case is the genetic parent- that child's parents.
What we have received from Canberra is something out of the Sir Humphrey Appleby script. Sir Humphrey was the master public servant in the Yes Minister and Yes Prime Minister series- who manipulated many things while appearing to change very little. He was the master of delay and obfuscation. One of his triumphs was the hospital that had the best stats in the land- except that it had no patients.
This is the statement from DFAT that is akin to a statement by Sir Humphrey- saying little, and being pretty well useless:
"We acknowledge the strong community interest in and support for the welfare of baby Gammy. We also welcome the response of the Australian public which has contributed generously to fundraising for baby Gammy. As the Prime Minister and the Foreign Minister have indicated, this is a complex and tragic situation, which also raises broader issues relating to international commercial surrogacy.
"The legal position of surrogacy arrangements in Thailand is unclear. There is no specific legislation which explicitly regulates surrogacy in Thailand. However, the Thai Government has advised it is considering draft legislation that may prohibit commercial surrogacy.
"Australian Government agencies, including the Department of Foreign Affairs and Trade, the Department of Immigration and Border Protection and the Attorney General's Department, are examining these issues closely in consultation with the relevant authorities in Thailand.
"We estimate around 200 Australians enter into commercial surrogacy arrangements in Thailand each year. We strongly urge Australians visiting Thailand for the purposes of commissioning surrogacy arrangements to seek private legal advice in both Thailand and Australia before doing so. They should also be aware they may be breaching Australian law in some states and territories.
"Australians considering such arrangements in Thailand should also familiarise themselves with the relevant Travel Advice at http://smartraveller.gov.au/tips/birth-adoption-surrogacy.html and http://smartraveller.gov.au/zw-cgi/view/Advice/Thailand. They should also familiarise themselves with the Department of Immigration and Border Protection Fact Sheet 36a (http://www.immi.gov.au/media/fact-sheets/36a_surrogacy.htm) on International Surrogacy Arrangements."