'Fertility tourism' struck down by Thai lawmakers. Why now?

The case of 'Baby Gammy' involving an Australian couple, and a 'baby factory' case where a Japanese businessman fathered 16 children, brought a public outcry. 

Thailand’s military-dominated parliament has passed a law banning foreigners from paying Thai women to be surrogates, which threatens to push the country’s booming fertility tourism industry underground. The move follows a string of scandals involving Australians and Japanese who hired Thai women to carry fetuses to term.

The new law actually prohibits all commercial surrogacy in Thailand, but seems especially aimed at stopping local women from becoming "the wombs of the world," National Legislative Assembly member Wanlop Tangkananurak told The Associated Press on Friday.

But critics warn that the commercial surrogacy ban will only create a black market for the practice, making it harder for couples to access quality physicians and medical care.

Rampant corruption and lax law enforcement in Thailand has long fueled a thriving underground economy that trades in everything from illicit drugs to endangered animals.

Thailand began drafting a law on commercial surrogacy nearly five years ago. But successive political crises stalled its progress until last year, when the country was rocked by two major surrogacy scandals.

The first involved an Australian couple who left behind a twin boy, known as Baby Gammy, with his surrogate mother after they discovered he had Down syndrome. Then came the revelation that a Japanese businessman had fathered at least 16 babies via Thai surrogates in a case later dubbed “the baby factory.”

Both cases ignited widespread public outrage that pushed the Thai government to act. On Thursday, the parliament voted 160 to 2 to pass the law banning commercial surrogacy.

While the new law prohibits foreign and same-sex couples from seeking surrogacy services in Thailand, Australian Associated Press reports, it does allows married heterosexuals with at least one Thai partner to use surrogates. Legal surrogates must be Thai, over 25 years old, and may not accept payment. 

The law states that anyone involved in illegal commercial surrogacy will face a maximum jail term of 10 years and a maximum fine of 200,000 baht ($6,100), the AP reports.

Fertility tourism across the world has been growing steadily over the last decade. Global IVF, an online resource guide for fertility tourists, estimates that 6,000 babies were born last year via overseas surrogates.

Western couples in search of low-cost alternatives to surrogacy in their home countries have largely contributed to the industry’s growth. In the United States, surrogacy is heavily regulated and can cost upward of $100,000 depending on the types of services and the clinic. In some states, commercial surrogacy is explicitly prohibited.

By contrast, surrogacy services in Thailand cost a fraction of that amount – closer to $40,000, according to The Washington Post – which could potentially make the risk of defying the law worth it for some couples.

As the BBC’s Jonathan Head reports:

The yearning of childless couples for babies will now probably move on to less regulated countries. But will surrogacy end in Thailand? The money to be made is so tempting for poor families that the business may still survive as an underground, illegal one, with all the dangers to the women of exploitation and poor health facilities.

As one of few Asian countries where commercial surrogacy was not specifically outlawed, Thailand has been a go-to destination for couples from Australia, Hong Kong, and Taiwan.

But there is no shortage of fertility tourism destinations willing to absorb couples in search of legal alternatives. Aside from Bangkok, cities from Kolkata to Cancun have emerged as global fertility hubs in recent years.