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Brooklyn Journal of International Law

Abstract

International commercial surrogacy is when a person or couple from one country hires a surrogate in a different country. In recent years, this form of reproductive tourism has been a booming industry in Thailand due to the lack of meaningful regulation, relatively low cost, and unavailability in other countries. After a string of scandals involving Thai surrogacy arrangements arose, however, the Thai government enacted the Protection for Children Born Through Assisted Reproductive Technologies Act (the “ART Act”), prohibiting Thai commercial surrogacy from serving foreign clients, and only allowing Thai heterosexual couples to make use of surrogacy arrangements. As a result, many couples with existing surrogacy arrangements feared for their futures, were stuck in limbo at home, or unable to leave Thailand with their newborn babies. This Note examines the detrimental effects a complete ban on commercial surrogacy will have on all parties involved. Because the ART Act will likely drive Thailand’s surrogacy industry underground, this Note proposes that the Thai government should look to both Israel’s regulatory approach to commercial surrogacy and the American Bar Association Model Act Governing Assisted Reproductive Technology and adapt them to Thailand’s needs to create regulatory laws and procedures. In doing so, Thailand will be able to regulate commercial surrogacy in a manner that affords protections to all parties, but is not so stringent as to drive commercial surrogacy practices underground.