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Looking at the draft Marriage Equality Act in Thailand. The organization Human Rights Watch has now called on the Thai parliament’s upper house to pass the same-sex marriage bill. This which the lower house approved overwhelmingly this week on March 27, 2024. Now should this pass, then Thailand will become the first country in Southeast Asia and the second in Asia after Taiwan to recognize same-sex relationships.
Now looking at the details as to what has happened. As you now know that the House of Representatives in Thailand has passed the Marriage Equality Act. This with overwhelming support with 400 out of 415 members present. It was noted that only ten voted against it, with two abstaining from the vote, as well as three not voting at all. The Act amends the Civil and Commercial Code wording by replacing “men and women” with “individuals”. Then also “husband and wife” with “marriage partners”.
However, LGBT rights advocates express concerns over retaining “mother” and “father” instead of using the gender-neutral “parent,” which could complicate adoption and child-raising for same-sex couples. The bill enjoyed bipartisan support and was over a decade in the making. You can also read more on this with the Personal Name Act as well as the Female Title Act of 2008 and finally the Thailand Gender Equality Act. Lastly also see the changes in the definition of rape under the Criminal Code Amendment Act as well.
In terms of the law, the legislation now consolidates the four standing draft bills as well as recognition of marriage between two people regardless of their gender. This is in strong contrast with the previous definition of marriage under the Civil and Commercial Code. This was marriage as defined as being between a husband and wife. The 2021 Constitutional Court’s ruling upheld the constitutionality of Thailand’s marriage law but recommended expanding legislation to ensure the rights of other genders. Hence this bill.
You will note that article called LGBTQ rights in Thailand which covers the obstacles stemming from political upheaval and disagreements. Now, the bill is awaiting a review by the upper-house Senate. This will occur this year on the 2nd April. This is then followed by an endorsement by the King. Next will be the publication in the Royal Gazette before its amendment takes effect 120 days later.
Firstly you will recall that the Constitutional Court, on December 2, 2021, ruled in Decision No. 20/2021 that Section 1448 does not contravene the Constitution. Likewise the Court reasoned that the law aligns with societal customs and traditions. Thus it was maintaining the institution of marriage as between a man and a woman. This to uphold family and inheritance structures. It further stated that existing laws do not prohibit same-sex couples from certain rights. These rights included the right to live together as well as holding ceremonies, or designating beneficiaries in drafting a last will. Thus they suggested that specific laws should then be enacted to grant such type of rights that have been asked for. There was reaction to the decision of the Constitutional Court regarding equal marriage rights.There was now a push for proposed laws to amend the Civil and Commercial Code.
So in response to societal demands it was the legislative branch that took action. It was certain members of the House of Representatives. You will recall that on the 8th June 2020. It was the members of the Progressive Party presented a draft bill proposing amendments to the Civil and Commercial Code. They then presented a marriage draft bill to amend the Civil and Commercial Code be amended. Thus ensuring marriage rights for all genders without discrimination based on their sexual orientation. The bill underwent a prolonged period of consideration from November 25, 2020, to February 9, 2022, totaling 442 days.
So now today you will note that the proposed law to amend the Civil and Commercial Code aims to ensure equal marriage rights. This for people of all genders in Thailand. Currently, the law restricts marriage in Thailand as well as Thai marriage requirements for foreigners to only heterosexual couples. This law will now ensure all the amendments are made. The draft emphasizes the importance of allowing people of diverse sexual orientations to establish families without discrimination based on gender or sexual orientation.
The Draft Act highlights the need to align Thai law with principles of equality and human rights, as enshrined in the Constitution. It emphasizes that all individuals deserve equal treatment and protection under the law, regardless of their gender or sexual orientation. The proposal signifies a significant step towards achieving equality in marriage and addressing legal disparities faced by LGBT individuals in Thailand.
Is it as simple as amending the Civil and Commercial Code or will there be restrictions much like Taiwan. Lets take a look at the restrictions when it comes to Taiwan and their same-sex marriage laws. This was covered on the article called “Same-sex Marriage Legalization and the Stigmas of LGBT Co-parenting in Taiwan” Cambridge University Press: 20 September 2022.
Firstly it’s important to consider parental rights beyond just marriage. We are currently only focusing on marriage equality as the solution. What about recognizing both parents of a child. This suggests that there are other important legal considerations regarding parental rights that extend beyond marital status. This has received very little coverage in the media.
Biologically two men or two women as couples cannot produce a child as a couple on their own. This leaves us with two important issues. There is non-marital birth (illegitimacy) as well as non-biological parenthood (adoption). In Taiwan, same sex couples cannot adopt a child as a couple. They can however adopt their own child or children and then co-parent. Likewise another issue is the ability to register the child in the household registry in Taiwan.
So, firstly, the law allowed some same-sex couples to get married and have their marriage officially recognized. That was a big step forward in Taiwan. But here’s the catch: for same-sex couples to get certain parental rights, they had to first get married and then go through a process called stepparent adoption. This means that if one partner in the couple had a biological child from before, the other partner could adopt that child as their own.
In Taiwan, adoption law recognizes three primary avenues for establishing a parental relationship: adoption by a close blood relative, stepparent adoption, and adoption by either a single individual or a married heterosexual couple who are not related to the child by blood.
But the law left out some people. For example, if one partner in a same-sex couple was from another country where same-sex marriage wasn’t allowed, they couldn’t get married in Taiwan. Also, if a same-sex couple wanted to adopt a child together who wasn’t related to either of them, they couldn’t do that either.
Likewise we are back at the problem of producing a child. Looking at Taiwan this became even more complex. Taiwan’s Assisted Reproduction Act from 2007 only allows infertile, heterosexual married couples to access assisted reproductive technology (ART). This means that lesbians and gay men who want biological children have limited options. They either have to travel abroad for expensive ART treatments. This or resort to legally unprotected methods at home. Likewise such as donor insemination, contractual marriages, or informal surrogacy (which is illegal in Taiwan).
In Thailand ART or surrogacy in Thailand is legal with conditions. This may solve many issues as the children are deemed to be legitimate children of the requesting married couple. However Section 36 of Providing Protection for Children Born through Assisted Reproductive Technologies (ART). States that Embryos may only be formed for use in infertility treatments for lawful husbands and wives. So both partners are male and are lawful husband and wife. They are not exactly infertile. They may have to be an amendment made to the ART law.
We have seen these issues raise its head in Taiwan. Its not simply an issue about the couples gender but casts a long shadow over family law and the rights of children with these changes. Eggs and sperm has to be donated as it cannot be sold. Surrogacy can only be from family or friends.
Heterosexual parents in Taiwan also faced with the stigma of a non-marital birth have two avenues. Likewise to address or hide this social stigma. The initial option involves the birth mother marrying either the biological father or a man she asserts is the biological father after the child’s birth. Alternatively, there’s the possibility of paternal acknowledgment without marriage. In this scenario, the birth father can “legitimate” the child without formalizing the union with the mother. This by voluntarily acknowledging paternity or by implicitly acknowledging it through providing child support. Will the Marriage Equality Act have the same issues?
Additionally, a single mother can opt to remain unmarried and still legitimize her child. This by compelling the birth father to acknowledge paternity, provided she can substantiate paternity through legal means.
Will Thailand go down the same route with the Marriage Equality Act? Only time will tell how the proposed new law will change the family and legal dynamics in Thailand.
