Since Thailand's equal marriage law took effect last month, thousands of LGBTI couples have been granted the right to start family life. The enactment of this legal milestone, along with push for an amendment to surrogacy, is paving the way for redefining what a family is.
Akkarat Katakul, 35, recalled the historic case of Jim Obergefell who disputed Ohio's ban on same-sex marriage in 2015. At the time, he was a student interning at the Human Rights Campaign. He and others marched to the US Supreme Court which then ruled that same-sex marriage is a legal right.
"I learned a lot from it and thought it would be great if we had marriage equality in Thailand," he said.
Six years ago, Akkarat started dating his current partner Thorntep Ratanakorn. Legalisation of same-sex marriage allows them to manage assets and make medical decisions on behalf of each other when either is incapacitated. Unlike his partner, Akkarat does not want to have children because it is difficult to raise them well in Thailand.
After legalisation of equal marriage, Thorntep Ratanakorn, left, and Akkarat Katakul are starting family life. (Photo courtesy of Akkarat Katakul)
"But it is necessary LGBTI also enjoy the right to surrogacy like heterosexual couples who are unable to conceive because we are abiding by the same law. I know that an amendment will take time, but it will be great to get this law passed. We are asking for what we are entitled to," he said.
On Jan 23, hundreds of LGBTI couples registered their marriage nationwide for the first time. After dating for two years, Rittigiat Subma, 27, and his foreign partner were the first couple to register their union at the Bang Rak District Office. From now on, they can enjoy equal rights and plan to start a family.
"We are thinking about having twins. In Colombia, [commercial] surrogacy is allowed. Children will be born to a local surrogate using our sperm," he said. "I think Thailand should amend the surrogacy law and allow a foreign partner to obtain citizenship."
Thailand's Equal Marriage Bill gives LGBTI couples the same legal rights as heterosexual couples. These rights include the ability to adopt children, manage and inherit property, the right to divorce, access to state welfare if their spouse is a civil servant, and tax deductions. However, there remain legal hurdles that must be overcome.
Citizenship and surrogacy in Thailand
Speaking at the Bangkok Rainbow Organisation, Chatchai Emraja, adviser to the Parliamentary Committee to Scrutinise the Act for Amendment to the Civil and Commercial Code, said after the legalisation of same-sex marriage, any law that includes "husband and wife" is deemed to be "spouse". Nevertheless, nationality and surrogacy laws are two exceptions that need to be revised.
Kittinun Daramadhaj, president of the Rainbow Sky Association of Thailand. (Photo courtesy of Kittinun Daramadhaj)
"First, the Nationality Act of 1965 grants Thai citizenship to a foreign woman only. It is the vestige of fear that foreign men during the Cold War would engage in espionage. Second, the Protection for Children Born through Assisted Reproductive Technologies Act of 2015 came before marriage equality. Both do not apply to same-sex couples," he said.
The surrogacy law has since been helping a husband and a wife with fertility problems. Section 21 allows surrogacy for a Thai couple or a Thai who has married a foreigner for at least three years. A surrogate mother must not be a parent or a descendant. Instead, she must be a relative. If there is no relative, a woman who is not biologically related can come in handy. Section 24 bans for-profit surrogacy.
In response to marriage equality, the Ministry of Public Health is amending the surrogacy law. Meanwhile, the Ministry of Interior is supervising the nationality law. It is compulsory that amendments be submitted to the cabinet within 180 days.
According to Thai PBS, Dr Panuwat Panket, director-general of the Department of Health Service Support, said the amendment to surrogacy includes replacing "husband and wife" with "spouse". A surrogate mother must be a relative. If there is no relative, a woman who is not genetically related can be of use. Moreover, the proposal will allow foreign couples to access surrogacy in Thailand, but a surrogate mother must have the same nationality as either spouse.
The right to family life
Marriage equality opens up possibilities for LGBTI people to begin family life. Kittinun Daramadhaj, president of the Rainbow Sky Association of Thailand, dismissed bias towards family-building alternatives, saying that human rights cover the right to family life regardless of any difference, which conforms to the Universal Declaration of Human Right of 1948 and other agreements.
"Same-sex or different-sex couples have the same right to building family. The idea of family also includes spouses and children. Advanced reproductive technology makes conception possible by means other than a natural method, for example, adoption, in-vitro fertilisation and surrogacy. As a result, everybody has the right to building family in their own way," he said.
When asked about the potential for human trafficking in surrogacy, Kittinun said concerns include giving surrogates "care package for pregnancy" of an unidentified figure. However, the Ministry of Public Health is taking every precaution in amending this law. Once submitted for cabinet approval, it will be vetted along with other drafts.
Meanwhile, Chatchai weighed in on the implication of the equal marriage law. He said it is shifting the idea of human dignity from divine origin to personal identity. It is also redefining the notion of family from union between man and woman for procreation to individuals for mutual support.
"Because of marriage equality, it is likely that people will be more accepting of all identity and expression. Laws should not be prohibitive. Conception should not be seen as heterosexual matter only," he said.
Chatchai said finding a gender-friendly term for "father and mother" will be a challenge. Once same-sex couples can access assisted reproductive technology, the term "father and mother" will no longer reflect such reality. Previously, a civil society's proposal to use the term "parent" was dropped because if "parent", which is more broadly defined as "predecessor" by law, was adopted, it would cause difficulty in legal interpretation.
Chatchai said despite the passage of the equal marriage law, other proposals for gender equality may not get passed easily. Other countries tend to familiarise people with civil partnership and gender recognition before they push further. However, the reason why Thai people gave overwhelming support is that they do not take marriage seriously.
"Marriage is optional here. First, you can be a father and a mother without having to marry. Second, a child born out of wedlock can inherit a father's property. As a result, unmarried parents are common. Bear in mind that they may not give as much support to other laws as marriage equality," he said.
