Same-sex marriage in Thailand: What’s next?
Jakarta—Jan. 23, 2025 was an historic day for Thailand and Southeast Asia. As a result of the new Thai law amending the longstanding Thai Civil and Commercial Code, same-sex couples are able to register their marriage and enjoy full rights and duties as spouses without gender discrimination.
This is also the first time for a Southeast Asian country. It is a great cause for celebration, cherishing love and friendship in their gender diversity. It is also time to look for the “next steps.”
In effect, nearly 70 sections of the Civil Code have been amended to delete binary wording such as man-woman, husbands-wives and male fiancé-female fiancée. There is now equal footing for all in marital matters, irrespective of gender.
This pertains to engagement and marriage relations, in particular the interdependence between couples in looking after each other, property-related ownership, dissolution of marriages and engagements, adoptions, and inheritance. The new law has also raised the minimum age of marriage from the previous 17 years old to 18 years old.
There remain some interesting queries. Does the new law benefit same-sex foreigners who wish to register their marriage in Thailand? Has the binary categorization of man-woman been excised completely or not? Does the law apply to the four southern provinces of Thailand where Islamic law prevails? How many other laws have to be reformed relating to gender discrimination?
Yes, foreign couples, irrespective of gender, will be able to register their marriage in Thailand. However, foreigners have to provide proof that they are not yet married.
Section 1453 of the amended Code still stipulates that after the male spouse dies or after the dissolution of the marriage, the female spouse is not allowed to remarry another man until 310 days have passed. This is to prevent confusion in regard to the possible pregnancy of the woman and related paternity questions.
The adjusted law excludes the four southern provinces from their application and this follows the general legal situation which avoids overlap with Islamic law in that region.
As for forward-looking reforms, some 50 laws, ranging from nationality laws to labor laws, will have to be amended to delete the binary wording and replace it with gender-neutral terms. Two areas of Thai law need urgent attention: surrogacy so as to respond to the desire of same-sex couples to have children as well as gender identity recognition to enable transgender persons to affirm their gender and change their identification documents.
The Thai law on surrogacy dates from 2015. Since that year, commercial surrogacy has been banned and this has affected especially foreign couples who wish to enter into a contract with Thai women, with the latter acting as surrogates. However, that law opened the door to “altruistic surrogacy” whereby for humanitarian considerations, asking another woman to be a surrogate to enable a child to be born therefrom is possible subject to various conditions.
First, the couple seeking the surrogacy must have Thai nationality, or at least one spouse must be Thai as well as being married for three years before seeking the help of a surrogate. Based on the egg of the wife, the sperm of the husband or the embryo emanating from their fusion, the born child is considered to be that of the couple. The egg of the surrogate must not be used in the process.
Second, the process is intrafamilial; the surrogate must be a blood relative of one or other of the couple seeking the surrogacy. The surrogate cannot be the parents or children of that couple. However, altruistic surrogacy is only allowed in regard to the traditional couple of (male) husband and (female) wife. What is now needed is to reform that law so as to delete the binary classification to enable same-sex couples to seek the help of a surrogate.
The other key law needed is a law to recognize gender identity, especially linked to transgender persons.
United Nations (UN) mechanisms advocate against coercive medical operation; gender identity affirmation should not depend on such operation. Gender identity is a natural state of affairs and not a pathological condition.
Several countries with a broad mindset, such as Argentina and Malta, do not require counseling or a psychological certificate for gender affirmation. However, internationally, there is still no agreement on the minimum age for a person to affirm the preferred gender, with the related issue of access to medical assistance (such as hormone treatment and “puberty blockers”). The various draft laws in Thailand vary between 15 and 18 as the minimum age.
A sense of inclusivity, based on progressive, reasoned, and constructive debate, is the preferred pathway, inspired by the spirit of “humanity in diversity.” The Jakarta Post/Asia News Network
—————-
Vitit Muntarbhorn is a professor emeritus in the Faculty of Law at Chulalongkorn University. He was appointed by the UN Human Rights Council as the first UN independent expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity 2016-2017.
—————-
The Philippine Daily Inquirer is a member of the Asia News Network, an alliance of 22 media titles in the region.
