A New Baby
The U.S. Embassy takes concerns about the surrogacy situation in Thailand very seriously and we have been actively engaging officials at the highest levels of the Thai government to find an interim solution that will allow U.S. citizen commissioning parents to depart Thailand safely and legally with their children already born through surrogacy, or currently in surrogacy pregnancy.
Recently, Thai Immigration agreed to permit foreign parents to exit Thailand with their surrogate-born children upon presentation of specific documentation confirming parentage and citizenship of the child acquired through their biological parents, as well as the surrogate mother’s consent to permit the departure of the child from Thailand. Please contact the U.S. Embassy’s American Citizen Services unit for more information: firstname.lastname@example.org.
While these adjustments to Thai requirements are a positive development, prospective parents should be aware that the surrogacy situation in Thailand remains fluid and is subject to change with little notice. Thai authorities have reaffirmed that they intend to fast track legislation that may end commercial surrogacy in Thailand. Only the Thai government has the authority to decide on transitional arrangements and departure procedures.
We are monitoring surrogacy issues to keep U.S. citizen commissioning parents apprised of future changes. We will continue to identify ways for parents and their surrogate born U.S. citizen children to legally depart Thailand. Our own procedures for documenting the birth of a U.S. citizen abroad in accordance with U.S. citizenship transmission requirements have not been affected, and we will continue to provide assistance. Our webpage on Consular Reports of Birth can be found here: http://bangkok.usembassy.gov/service/birth-of-a-u.s.-citizen-in-thailand.html
Parents who have concerns about the legal ramifications of engaging in surrogacy in Thailand are encouraged to consult with an attorney for more information. The Embassy provides a list of English speaking attorneys here: http://photos.state.gov/libraries/thailand/231771/acs/attorneylist.pdf
Assisted Reproductive Technology (ART) that Uses Surrogacy in Thailand
Prospective parents considering traveling to Thailand for Assisted Reproductive Technology (ART) procedures that include surrogacy are encouraged to review the available information and seek legal advice from an experienced Thai attorney on parental rights and custody issues. We also strongly encourage you to thoroughly vet any surrogacy agency and clinic whose services you might choose to hire. You should direct questions regarding transmission of U.S. citizenship in cases involving surrogacy to the U.S. Embassy in Bangkok or to the U.S. Consulate General in Chiang Mai well in advance of the intended procedure in order to ensure that you understand all U.S. citizenship transmission requirements.
Commercial surrogacy in Thailand remains largely unregulated. The Medical Council of Thailand, charged with enforcing medical ethical standards in Thailand, has been steadily tightening its enforcement of existing medical professional guidelines controlling IVF and gestational surrogacy, and a draft of a proposed surrogacy act currently under review proposes prohibiting commercial surrogacy and the brokering of surrogacy agreements through third parties altogether. Currently, the legal status of surrogacy contracts remains ambiguous. According to the Ministry of Social Development and Human Security’s Office of Promotion and Protection of Children, Youth, the Elderly and Vulnerable Groups, Thai law recognizes the birth mother – the surrogate mother – as the child’s legal mother regardless of whether the surrogate’s egg was used to conceive the child. At present, surrogacy contracts alone are not sufficient to transfer sole and legal parental rights from the surrogate mother to the commissioning parents. Transfer of legal parental rights can be achieved only through a Thai court order.
Documenting Children Born Using Surrogacy as U.S. Citizens: The Consular Report of Birth Abroad of an American Citizen
Children born abroad to a U.S. citizen parent who meet all statutory requirements are eligible to be documented as U.S. citizens through a Consular Report of Birth Abroad (CRBA) and a U.S. passport. (Information on acquiring citizenship by birth abroad)
A U.S. citizen parent who has a child through a foreign surrogate mother in Thailand may be able to transmit his or her U.S. citizenship to that child if the parent can provide sufficient proof showing a biological relationship between the child and the U.S. citizen parent(s). This is best accomplished through DNA testing through an AABB-accredited laboratory.
- Note that DNA testing can take as many as one to two months to complete, so parents are strongly advised to allow sufficient time for the process. The CRBA process takes longer when documentary requirements are not complete, so please be sure to review the CRBA webpage in addition to understanding the guidance on this page.
- Parents who wish to expedite the DNA testing process may pre-order the DNA kit prior to their appointment. Please select and contact a lab from the list of Department of State list of approved laboratories . As different laboratories have different fees and processes, please contact them directly to learn more about their services. Be sure to inform the laboratory of the name of the child (“Baby” and last name if not yet born) and parent(s) to be tested. Once completed, please send an email to DNABangkok@state.gov to provide the child’s name, the parents’ names and contact information. Note that the Consular Report interview and DNA testing will occur on separate days, and the DNA office will be in direct contact with the parents to schedule the testing.
The parental name/s listed on the CRBA will be that of the U.S. citizen parent(s) with a biological relationship to the child. If only one U.S. citizen parent has a biological relationship to the child, the other parent’s name may be listed on the CRBA only if the other parent is the other legal parent under Thai law.
Surrogacy and Legal Parental Relationship in Thailand
It is important to note that a CRBA documents U.S. citizenship, and not legal parentage. There is no law governing surrogacy in Thailand, and Thailand recognizes the birth mother (the surrogate mother) on the Thai birth certificate as the legal mother of the child, even if a U.S. citizen provided the fertilized egg. In such cases, the genetic mother could be listed on the U.S. Embassy-issued CRBA once her genetic relationship is established, but, under current Thai law, she would not be the child’s legal mother.
According to the Ministry of Social Development and Human Security’s Office of Promotion and Protection of Children, Youth, the Elderly and Vulnerable Groups, a biological U.S. citizen father may be registered as the father on the child's birth certificate. However, in the absence of a court order awarding a custodial arrangement with the father, Thai law generally recognizes the mother as having sole custody of a child born out of wedlock. Further, in some cases, if the surrogate mother is married, her husband may be listed on the Thai birth certificate as the child’s father. In order for the commissioning parents to be granted full parental rights, they will need an order issued by a Thai court, a process that could take several months to complete. For more information, commissioning parents may wish to consult with an experienced Thai attorney on parental rights and custody issues. The U.S. Embassy provides a list of attorneys here.
Applying for a U.S. Passport in Surrogacy Cases – Surrogate Mother’s Signature
The child’s U.S. passport application requires the consent of both legal parents unless one of the exceptions enumerated under Code of Federal Regulations (CFR) Section 51.28 exists. In the absence of a Thai court order granting the commissioning U.S. parents full legal and sole custody of the child, the surrogate mother must sign the passport application as the child’s legal mother, or provide her notarized consent if she is unable to appear in person. Further, the legal parent(s) must sign all future passport applications until the child turns 16 years of age.
For more information, please see Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad or contact us at email@example.com
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