PROBLEMS IN APPLYING THE BEST INTERESTS OF THE CHILD PRINCIPLE TO PROTECT THE RIGHTS OF CHILDREN BORN THROUGH ASSISTED REPRODUCTIVE TECHNOLOGY WITHIN LGBTQ+ FAMILIES: A STUDY ON PARENTAL AUTHORITY

Abstract

This research aims to study the concepts and legal frameworks related to assisted reproductive technology (ART) in Thailand, focusing on problems in applying  the best interests of the child principle to protect the right of children born through assisted reproductive technology within LGBTQ+ families on parental authority. It analyzes parental authority under the Protection of Children Born through Assisted Reproductive Technologies Act B.E. 2558 (2015) and compares it with the legal systems of the United Kingdom and Greece. The study identifies three main issues: limitations in access to reproductive technology, restrictions on legal parenthood and parental authority, and the absence of consistent judicial standards in interpreting the best interests of the child. Based on this analysis, the study concludes that The Protection of Children Born through Assisted Reproductive Technology Act B.E. 2558 (2015) presents several limitations. First, there are restrictions on access to assisted reproductive technology for families with diverse sexual orientations. The law defines “legally married husband and wife” under Sections 3 and 21, thereby limiting rights exclusively to heterosexual married couples. Consequently, LGBTQ+ families are unable to equally access the right to have children through assisted reproductive technology. Second, there are restrictions on legal parenthood and parental authority. Under Section 29, children born through assisted reproductive technology are recognized as legitimate children only of heterosexual married couples, in line with the Civil and Commercial Code, Section 1546, which upholds the principle of motherhood by bloodline. In families with diverse sexual orientations, intended parents cannot be recognized as legal parents; instead, the child is legally deemed the child of the surrogate mother. Moreover, Section 34, which refers to the application of the Civil and Commercial Code, Sections 1566 and 1567 concerning parental authority, prevents same-sex couples from exercising joint parental authority in the same manner as heterosexual spouses. This results in same-sex couples being denied the legal status of joint parents, thereby undermining the stability and welfare of the child. Third, the principle of the best interests of the child remains inadequately fulfilled. The interpretation of “the well-being and best interests of the child” under Section 30 still lacks clear criteria and enforceability, creating legal uncertainty and potentially violating the rights of the child. Furthermore, the surrogate mother is designated as the temporary guardian, despite having no intention of raising the child, which imposes an unfair burden on her and does not align with the principle of the best interests of the child.