REGULATING REPRODUCTION: A CRITICAL ANALYSIS OF THAILAND’S CRIMINALISATION OF COMMERCIAL SURROGACY

Abstract

This article examines whether Thailand should legalise commercial surrogacy within a legal and ethical framework. Thailand maintains a prohibitive stance under the Protection of Children Born through Assisted Reproductive Technologies Act B.E. 2558, which criminalises all forms of compensated surrogacy under Section 24, with the restrictive eligibility requirements under Section 21; however, it has produced counterproductive outcomes. Drawing on doctrinal and policy analysis, the paper identifies the unintended consequences of this prohibition; namely, the emergence of underground and cross-border surrogacy markets, loss of enforceable protections for surrogate women, weakened informed consent, and increased medical and psychosocial risks, thereby exposing women and children to unregulated risks and revealing a regulatory vacuum. This article aims to study the legal and social implications of commercial surrogacy in Thailand and evaluate the advantages and disadvantages of legitimising such practices. This paper explores how strictly designed regulatory systems undermine reproductive autonomy and lawful access to surrogacy. This paper discusses that Thailand’s absolute prohibition represents a state of excessive criminalisation, inconsistent with modern human rights jurisprudence, damaging reproductive autonomy, and driving surrogacy practices underground. It argues that transitioning toward a regulated commercial surrogacy framework, under fine oversight and informed consent, would sufficiently harmonise ethical protection with reproductive freedom.