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Surrogate maternity

Surrogate maternity is regulated o the legislative level. Laws regulating surrogate maternity, rights and obligations of parties, vary from country to country. An important factor in conclusion of an agreement on the subject is understanding by the parties of obligations undertaken by the parties and possible consequences.

The first successful in vitro fertilization followed by an ECO program was the birth of the English woman Louise Brown in 1978. In 1986, the method of extracorporal fertilization (IVF) was successfully used in the USA.

In the CIS territory, the first case of surrogate maternity successfully started in 1991, when introduction of the process of auxiliary reproductive medicine resulted in the birth of the girl Katya. After the successful experience of Kharkov experts, IVF became widespread in the territory of the former USSR.

Since 1978, about three million children have been born all over the world using the IVF method.

Both in terms of using the IVF method and in terms of legislation in this field, the USA were the first. Their legislative experience was successfully adopted in many other countries. Though both in America where each state has its own legislation, and in other countries, there are no uniform laws and legal practice in this field. However, the USA laid the foundation of legal regulation of surrogate maternity all over the world. Several court proceedings in cases connected with surrogate maternity became known all over the world; were described in manuals, scientific and popular literature, various guides, and were widely covered in the Internet.

The world demonstrates controversial attitudes to surrogate maternity. The Brussels declaration of the World Medical Association (1985) provides for the prohibition of it. There is no single opinion (on the worldwide scale) that this method of fertilization is correct and lawful. Application of these methods of reproduction is connected with many problems of ethical, medical and legal nature. To a certain extent it is dependent on the attitude of the church considering that this method is sinful. However, if we refer to the Holy Writ we will see that even this book reads about surrogate maternity. However, due to low technologies in the field of reproductive medicine one had to use natural insemination of a donor who was at the same time a surrogate mother. From the legal point of view, children of Bible prophets were deemed to be children of their lawful wives, and not of their biological mothers (for further detail see the Old Testament, Genesis, 16).

Surrogate maternity is permitted by laws of the majority of USA states, Australia, Great Britain, Denmark, Israel, Spain, Canada, the Netherlands, Russia, Ukraine, Georgia, RSA. In a number of countries, only non-commercial use of IVF is permitted. In some countries surrogate maternity is directly prohibited by law (according to my data, these include Austria, Norway, Sweden, France, Italy, Germany, some states of America) or not regulated by the legislation of a country at all (Belgium, Ireland, Finland).

In Russia commercial surrogate maternity is absolutely lawful. Issues of surrogate maternity are regulated by the following legislative acts:

1) Articles 51-52 of the RF Family Code;

2) Article. 36 (“Artificial fertilization and Embryo Implantation”) of the RF Principles of Legislation on Health Care of People # 5487-1 dd. June 22, 1993;

3) Article 16 of RF Law # 143-FL dd. November 15, 1997 “On Acts of civil status”;

4) Order of the RF Ministry of Health # 67 dd. February 26, 2003 “On application of auxiliary reproductive technologies (ART) in therapy of female and male infertility”. .

In spite of the great variety of laws, legal regulation of this issue is imperfect. In my opinion, the main fault of the legislator is that customer spouses are rightless and can be registered as parents only with consent of a woman who gave birth to a child. Such standard would be relevant in a society where commercial IVF is prohibited. But in a country where IVF exists exclusively on commercial basis, this standard is, I presume, in tough conflict with rules of the RF Civil Code, at least.

However legislation is imperfect, and legislation in this field is double imperfect. Thus, for instance, in Russia services of surrogate mothers can be used by officially married couples only; while single men are deprived of access to auxiliary reproductive technologies. For comparison, in Ukraine customers will be regarded as parents in any case (Article 123 Item 2 of Ukraine`s Family Code), and according to the legislation of Byelorussia, it does not legally matter if future parents are married officially or not.

Russian law does not stipulate the situation after a divorce or in case of death of the parents before a child is born. An agreement is entered into, a child is conceived, but will he/she have the right to alimony or legacy? – this question was left unanswered by the legislator, and one should think that the answer is no: no, the child will not be able to get maintenance from the might-have-been parent or become his/her heir in case of his/her death.

Will a properly executed agreement help to avoid possible problems? Yes, and no. A child cannot be a subject of an agreement that is why neither an agreement nor court can oblige a surrogate mother to give her baby away. The right to keep or give away her child belongs to a surrogate mother only. Customers only have the right to apply to court for compensation of the expenses incurred that will not pay for their expectations and hopes, and they will most likely have no compensation of the funds spent even if a court judgment is issued to that effect. However, a properly executed agreement will help to a certain extent to oblige a surrogate mother to act in good faith and provide for financial bonuses for it, and, consequently, penalties.

Personally, I think that it will take much time before legislation on the issue become uniform, reasonable and fair. Now we are only learning to understand what IVF is in its legal sense.

Karina Duvall
Articles and consultations authored by attorney reflect the state of law as of the date of their writing. The laws change daily. Users of this site are advised to consult attorney regarding their situation.
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