Surrogacy And Passport

[bsm]

i am unable to carry child due to illness but i am planning on using my own egg and my husband's sperm and use a surrogate to carry our baby. the surrogate is a thai lady.

in the event that my name cannot be on the birth certificate, i cannot give my passport to my baby. since we are both non-thai nationals, we also cannot give the baby a thai passport. this leaves my husband, who is born british.

would the embassy in Bangkok grant a british passport to a baby born in thailand under such circumtances? (british father, married to woman but has a child with a thai woman).

another option would be to ask the thai surrogate to give the baby a thai passport. would thai immigration grant a passport to a baby born to a thai mother who is not married to the genetic father of the child? and would this pose a problem at immigration when the baby leaves thailand for good with the father (but the Thai birth mother is not present)?

thoughts appreciated.

[alleypanda]

For Thai passort - outside wedlock surrogate mother alone can apply for the baby thai passport, 3 days processing .

When leaving the country imm officer would ask for the birth certificate, you should get the surrogate mother sign a permission letter under the witness of a notary public along with a copy of her ic card. the best way for your situation is to adopt your bio-baby from the surrogate mother.

Best of luck.

Edited August 5, 2007 by alleypanda

[think_too_mut]

Whoever gives the birth owns the baby.

The surrogate mother, if she happens to change her mind and keep the baby, you stand no say or a chance of taking it.

Also, if you carried and delivered the baby conceived of Thai lady's egg and your husband's sperm, she has no any rights whatsoever (important, some may turn up for money if the baby becomes Tiger Woods).

For Thai immigration, she is the mother and your husband is the father. On that ground, the baby gets Thai passport in 3 days (they care not about surrogacy, that situation does not exist in any rules - since the mother owns the baby).

For British passport - she is a child of a British citizen and, reported to the Embassy, stands legal ground for British passport, why not.

One thing that will remain - unless the baby is adopted, your name will not appear in baby's documents.

At some point a lawyer has to be engaged, anything that smells of buying a baby would make it drag for years.

One thing that may work is - if the Thai lady is that determined to help you, there could be a way that she comes with a baby to UK and returns alone.

[GuestHouse]

I's start by getting good legal advice on if Surragacy is even legal in Thailand.

In the west it is very closely controlled and the people entering into surragacy agreements are (at least in Europe) provided with extensive information and pre/anti surragacy councelling. This is particularly important for the surragate mother.

[sylvafern]

You definitely need to get legal advice on this and not rely on information given to you here (use as a guide only) as it sounds as if you are about to enter an extremely difficult situation. I know you were only asking for information on passports so this is not a question for you to answer here (unless you want to) but to think about (if you haven't already) ..... what exactly is your reasons for choosing a Thai women in Thailand to be the surrogate mother rather then in your home country or closer to home? Have you ever been to Thailand and will you be here throughout the pregnancy (can you even get visas to stay while here?) How well do you know this women? Can she be trusted that her intention is to carry your baby and not keep the baby for herself? I know it's bad to think this, but my first thought was that this could be a situation of a Thai woman planning to have her very own farang baby which she can call her own.

[think_too_mut]

You definitely need to get legal advice on this and not rely on information given to you here (use as a guide only)

Legal advice: ask a lawyer and next thing he will do is googling and reading what we discuss here.

The core thing, the surrogacy, is what the doctor involved has to explain. The doctor would know all the legal surroundings better than any lawyer.

Only a limited number of doctors have been trained in what is involved.

That's where it starts: is there a doctor in Thailand who would do this process? If there is, then it should be considered legal.

7 years ago, for example, there was only 1 doctor in whole country who was trained in IVF.

Edited August 7, 2007 by think_too_mut

[the scouser]

If your husband is British "otherwise than by descent" and he is named on the child's birth certificate (issued within a year of the child's birth) as the father, then the child will automatically acquire British citizenship at birth and a passport application can be made to the British embassy in Bangkok.

Scouse.

[bsm]

If your husband is British "otherwise than by descent" and he is named on the child's birth certificate (issued within a year of the child's birth) as the father, then the child will automatically acquire British citizenship at birth and a passport application can be made to the British embassy in Bangkok.

Scouse.

Dear Scouse - i have read your thread concerning transmitting british nationality to child and it is most useful.

you have, however, specifically mentioned that the father is to be "unmarried".

which begs the question: if my husband is british "otherwise than by descent" but is officially married (to me) but had a child with a Thai woman (she is not officially married but is married to her husband in a thai buddhist ceremony), would this contradict the "unmarried" rule that you specified and therefore pose a problem with the British passport?

Your thoughts much appreciated.

[the scouser]

See the Borders and Immigration Agency (BIA) guidance on surrogacy.

From the circumstances that you posted here, I would say section 2.3.3 ( c ) applies, and this states:-

c) (if neither a) nor b ) applies) a person who is proven to be the father by the production of either:

i. a birth certificate issued by the competent authority within 12 months of the birth which names him as the father, or

ii. such other evidence (e.g. a DNA test report or court order) as may satisfy the Secretary of State on this point (see, further, paragraph 22.3 of Annex F to Chapter 6).

Scouse.

[sylvafern]

I found it interesting reading a topic in another forum by this OP .... maybe I am tired and am missing something, but in this topic the OP seems to be female with a husband and wanting a baby, however in their other topic the OP seems to be male, with a wife and a girlfriend on the side whom he has already had a baby with.....something's not adding up!!!!!

my thai girlfriend lives in bangkok. can she apply for a thai passport for our baby? we are not married to each other but I am married to another woman who is not Thai (I did not get marry in Thailand).

[xminator]

My guess is that as long as the father is British, and can prove that by DNA, and by thai law is the childs father (that is if the pregnant woman is already married thai there might be complications), the case is no different from a "ordinary" man having "bad luck" while on a business trip and then want to provide for his offspring in his home country. There is also enough farang/thai marriages where previous children are brought to Britain and while I don't know British details, other western countries let the stepfather adopt his partnes children. So I guess this would be the case for stephmothers too. And thats the important part. A woman can not claim to be named mother of a child born by another woman. Unless laws changed the last year. A man can however claim to be father, and it can be proven by DNA. If the fertilization happened in a room on soi 6 or in a glass tube at a Bangkok hospital should be of no interest to anyone in the legal process of getting custody to the child. And it should be formality as long as the surrogate mother agree to the process.

All the following have to be true

1. IVF is legal in Thailand

2. Getting a woman that is not your wife pregnant is legal in Thailand

3. It is legal for a woman to get a fertilized egg that is not her own. Maybe law require the hospital to only treat married women?

4. Father can claim custody, and its simplified when the mother agrees, should be enough with a trip to the amphur in that case, or is a trip to court needed for custody even when both parties agree?

5. In most EU countries getting the fathers nationality passport for the child should be standard procedure.

6. Once in farangland there should be procedures in place for the stepparent to adopt the child for legal rights (heritage, what happens to custody if partner dies etc etc)

Personally I would find it very hard to trust any of the companies selling packages that include 1-6. Especially given the recent bust of that surrogacy ring even if that was aimed at couples from other asian countries. I would oversee 1-6 in detail, I would make sure there was a huge incentive for point 4 (that would be money...) and make sure the surrogate mother was provided for before, during and after the pregnancy. It would be expensive, with lawyers and hospital fees. And my guess would be that there is more convenient countries for farang/farang couples. For a farang/thai couple however using Thailand might be the most convenient way for IVF surrogacy.

[Mario2008]

Regarding number 2:

If you are married and commit adultery, the spouse can sue the party you committed adultery with for damages.

Regarding 4.

A trip to court is required.

But this is a thread from 2007 you are replying to.

[BuddhistDruid]

I realize this is a 2007 thread, and the OP is no longer interested, but I will reply so that should anyone search and find this thread in the future, they will know the situation.

There is no law in Thailand which makes surrogacy legal. Several attempts have been made in the past 10 years to pass one, but they always get blocked. At the same time, there is no law which makes surrogacy illegal. This leaves the judges in a dilemma, and the fact that there are highly misinformed, politically biased people who don't understand how necessary surrogacy is to those couples who have difficulty conceiving, means that judges in the Thai family courts will not accept your petition if you conceive a child through a Thai surrogate, even if they would like to and there is nothing that actually prevents it. Thai couples who do surrogacy use one of 2 methods to overcome this problem:

1. The way you probably can't use --- Bribe someone at the hospital. This is by far the easiest way if you are Thai and relatively wealthy, and usually can only be done at the mid level private hospitals. People of means do this, and the administrators understand the situation for what it is. Note that if you come straight out and ask your doctor, he will say he has no idea. You have to know someone who knows someone who knows the guy who will admit to it. This is illegal for the hospital, and they won't risk their license on just everyone. The problem is generally overcome by admitting the surrogate mother under the biological mother's name. Not a problem as long as there are no complications, but this could go horribly bad if something goes wrong, so the parties have to trust each other and have a mutual understanding. Farangs generally can not develop this level of comfort with the hospital, therefore I would not encourage this route. It is there however, and if you are in the Thai surrogacy scene for long enough, you will hear stories about how people did just this.

2. The way you probably will have to use --- Make up a story for the court.

First, make sure your Thai surrogate is single. This is critical. If she is married, she will need to get divorced, and to be safe you will have to wait 4-5 months after the divorce before you can use her. This is because the divorce must be finalized 10 months before the birth of the child. There is no provision in the law for prorating this in case the baby is born premature. Since babies can come as early as 24 weeks (22 weeks gestational age) and still survive, you'll need to make sure she's been divorced for at least 21 weeks before proceeding with the implantation.

Second, make sure your surrogate understands she will be expected to stick to the story you are going to make up for the judge, and make sure you have some means of enforcing said compliance. Using a family member is generally the best, but enforcing compliance can also mean helping her or her family in some way after the court proceedings are finished (not simply after the birth, which is really just when things start heating up). You can save yourself many hassles by discussing this up front. A contract in this area is unenforceable, but simply having stuff written down can minimize misunderstandings later on.

Third, do the IVF and/or FET with the surrogate. Do not worry about contracts here. Any contract is unenforceable. It is sufficient to simply write what you agree to down on paper. The reality of the situation is that the surrogate may expect to be compensated for her troubles, however hopefully this is not the case. For instance, there are many sisters who will help each other out in this area for no other reason than family. This is the ideal situation if you can arrange it. Paying for surrogacy, even though it is common, is exactly what the political stink is all about, and why Thailand refuses to act more rationally in this regard.

Fourth, have the child at a Thai hospital. The biological father will be listed on the birth certificate as the father as long as you have followed step #1. It is helpful at this point to do the registration of the birth at the ampur yourself, even though everyone has now agreed this will not work for legalizing the child. Thus, the father's name will be listed on the birth certificate twice. However, when you later go to see child protective services for the adoption, they like to see this. It is not a requirement by any means. Just something to make things easier. The surrogate MUST be present to remove the baby from the hospital. This the hardest part for the genetic mother. Seeing her baby placed into the surrogates arms. Up until this point it was all just theoretical, and the birth itself she probably didn't see at all. All the insecurities about the process to come will surface here. Make sure you tell the staff at the hospital what is truly going on so they can be more sensitive about the issue. They have to treat the surrogate as the mother by law, but they have seen this problem before and understand the emotions of the parties involved.

Fifth, put the baby on the house paper of either the mother or the father, depending on which one of you is Thai. Do NOT put the baby on the house paper of the surrogate. That will just cause problems during the adoption proceedings later on. You want everyone to know the baby is already living with you, and you are responsible for her care. Make sure you take the baby to your home from the hospital. It is best if the surrogate does not stay with you or very nearby. This may not be possible if she is a family member, but in that case the judge will be more lenient anyway. You can rent her an apartment across town if you would like her to stay and express milk for the baby. This is for the mother's peace of mind as well as for the adoption story later on.

Sixth, have a story prepared for the judge. If you are living in Thailand, the story is typically that the surrogate came to be a maid at your house, and the husband impregnated the maid naturally while in performance of her duties. If you are not living in Thailand, you can say you hired the girl as a guide for your 2 week vacation and the conception occurred during this time. Many people find having to do this degrading, and it is. Everyone does it anyway because the child is at stake, and that is what is important. You may be offended at this, but this is the accepted way of dealing with the pitiful state of surrogacy in Thailand. The judges will probably even suspect what really happened, but do not, under any circumstances, mention surrogacy. While there is nothing in the law that would prevent a judge from granting your request if you told the truth, the political reality is that they will not. You will simply find your request to be legalized as the father or the adoption proceedings denied without reason, and your lawyer will probably receive a scolding from the judge for putting them in that position. They do know what is best for the child, and whenever they are forced to rule against this for stupid reasons they get angry.

(#7 assumes you are living in Thailand, and that the wife is a Thai national. If the Thai national is the father and the woman is a foreigner, you will need to visit your embassy and start the proceedings for an international adoption. Be honest with your embassy about the surrogacy issue and whether or not you are the genetic mother. Your country is probably acts more sanely than Thailand. The international adoption will generally be allowed without an inordinate amount of hassles because you are adopting the child of your husband, but it is still a much more lengthy procedure than the domestic adoption. I am assuming at least one of you is Thai in this scenario. If you are both foreigners it is just plain stupid to do a surrogacy in Thailand. Go to India. )

Seventh schedule an appointment at child protective services. This is to prepare for the adoption of the child by your wife. They will individually interview all 3 of you to find out the story and compare the answers. Make sure you have a complete story and all parties have memorized what they are to say. Include such details as the dates of when she started and stopped working, how much the surrogate was supposedly paid for her maid services, where she slept, and how many times intercourse occurred. They will ask all of this. It is sufficient to say "many times". They aren't interested in the pornographic details. They will wish to know if your neighbours are aware of the situation, and it may be prudent to move shortly after the implantation to simplify this situation when your maid was supposedly terminated. Child protective services will visit your neighbourhood and interview those around you. If you are still living in the same place, they will ask about the surrogate and the maid story. That may be awkward.

Eigth, have the husband legalize the child through the courts and apply for sole custody. You will need to be in Thailand for this and appear in court. This is where your husband must state the version of events you have decided upon before a judge. The surrogate must also appear and confirm the story. In most cases the baby and the wife should be present also. If everything checks out then you will have to wait 30 days and you can then go to ampur and do the legalization.

Ninth, go back to the family courts to have the adoption approved. All 4 of you again should be present (father, mother, surrogate and baby.) The judge will spend most of this time talking to the mother and the surrogate. He will necessarily question the surrogate to make doubly sure she understands what she is doing. He will also generally question the mother to make sure she will take good care of the child. Remember that while the judge may have an inkling of what is going on, he will behave as if the surrogate is the true mother of the child. It is not uncommon that the judge will caution the mother to be kind to the surrogate and allow her to see the children. Just smile and agree with whatever he says. You are almost finished.

Tenth, after 30 days, go to the ampur and register the adoption, and update the house papers to reflect this fact. You have now successfully finished the process.

The entire process will take anywhere from 6 months to 2 years depending on how busy the courts and child protective services are. I hope that any foreign couples reading the above procedure will understand that unless there is a very compelling reason for you to do surrogacy in Thailand, you are better off going to a country with more rational laws. The best country in the world for surrogacy is still the USA, where in certain states you can get a prebirth order that allows the biological mother's name to appear directly on the birth certificate. This generally removes any problems that individuals may have with their home countries. This may be expensive, but it does have the advantage of being completely above board and with full legal protections.

The other option for surrogacy is India. If neither one of you is Thai, and you are looking for a low cost option, this is truly the place to go.

[Mario2008]

If one of the parents is not Thai, we are speaking of an international adoption. Which is a bit more complicated and must follwo the rule of both Thailand and the country of the foreigner. Otherwise one adopts according to Thai law, but not under one own law. Consequence is that ones own country wll not recognze the adoption. In essence, the child will not get the foreigners nationality. Inhereting might also be a problem.

[BuddhistDruid]

If one of the parents is not Thai, we are speaking of an international adoption. Which is a bit more complicated and must follwo the rule of both Thailand and the country of the foreigner. Otherwise one adopts according to Thai law, but not under one own law. Consequence is that ones own country wll not recognze the adoption. In essence, the child will not get the foreigners nationality. Inhereting might also be a problem.

No, only if the mother is not Thai is it an international adoption. The father isn't adopting in the surrogate scenario. He is the biological father. If the mother is Thai but the father is a foreigner, it is a domestic adoption under Thai law only. No need to involve your embassy.