Rus Articles Journal

Surrogacy. Lawfully or not?

Surrogacy are settled at the legislative level. The laws regulating surrogacy, the rights and obligations of the parties are various in the different countries. An important point at the conclusion of the relevant contract is the understanding the parties of the obligations assigned to themselves and possible consequences.

The birth in 1978 of Englishwoman Louise Braun was the first successful artificial insemination of in vitro with the subsequent EKO program. In 1986 in the USA the way of extracorporal fertilization (EKO) is successfully applied.

In the territory of the CIS the first experience of surrogacy successfully started in 1991 when the girl Katya`s birth became result of introduction of process of auxiliary reproductive medicine. After successful experience of the Kharkiv experts, EKO it began to be applied widely in all territory of the former USSR.

Since 1978, in the world about three million children with application of way EKO were born.

Both from the point of view of application of way EKO, and from the point of view of the legislation in this area, the USA was the first. Their legislative experience was successfully adopted in many other countries. Though in America where in each staff the legislation, and in other countries, is not present uniformity of laws and jurisprudence on the matter. Nevertheless, the USA laid the foundation to legal regulation of surrogacy around the world. Several trials on the questions connected with surrogacy became world renowned, entered textbooks, scientifically - popular literature, various grants, are widely lit on the Internet.

In the world the ambiguous relation to surrogacy. It is told about prohibition in the Bruxelles declaration of the World medical association (1985) . There is no consensus (on a global scale) that this way of fertilization is correct and lawful. Application of these methods of a reproduction is connected with many problems of ethical, medical and legal character. Somewhat it is dictated also by a position of church, including this method sinful. Nevertheless, having addressed the Scripture, we will see what even in it there is a speech about surrogacy. However, owing to backwardness of technologies in the field of reproductive medicine, it was necessary to resort to a natural insemination of the donor who at the same time was also substitute mother. At the same time from the legal point of view children of bible prophets were considered as own children of their lawful wives, but not biological mothers (for more details see. Old Testament, Life, 16).

Surrogacy is authorized laws of the majority of states of the USA, laws of Australia, Great Britain, Denmark, Israel, Spain, Canada, the Netherlands, Russia, Ukraine, Georgia, the Republic of South Africa. At the same time in a number of the countries only noncommercial use of EKO is authorized. In a number of the countries surrogacy is directly forbidden by the law (according to my data, it is Austria, Norway, Sweden, France, Italy, Switzerland, Germany, some states of America) or is not regulated by the legislation of the country (Belgium, Ireland, Finland) in any way.

In Russia commercial surrogacy is absolutely lawful. Questions of surrogacy are regulated by the following acts:

1) the Art. of Art. 51 - 52 Family codes of the Russian Federation;

2) Art. 36 ( Artificial insemination and implantation of an embryo ) Bases of the legislation of the Russian Federation on protection of public health from No. 5487 - 1 of June 22, 1993;

3) Art. 16 of the Act of the Russian Federation No. 143 - Federal Law of November 15, 1997 About acts of civil status ;

4) The order of the Ministry of Health of the Russian Federation No. 67 of February 26, 2003 About application of the auxiliary reproductive technologies (ART) in therapy of female and man`s infertility .

Despite variety of laws, legal regulation of this question it is imperfect. The main, in my opinion, defect of the legislator consists that of the spouse - customers are deprived of civil rights , and can be registered as parents only from consent of the woman who gave birth to the child . Such norm would be pertinent in society where commercial EKO is forbidden. But in the country where EKO exists only on a commercial basis, this norm, in my opinion, enters the deep conflict with standards of the Civil code of the Russian Federation, at least.

But the legislation is imperfect, and the legislation in this area - imperfectly doubly. So, for example, services of substitute mothers in Russia only officially registered married couples can use ; lonely men are deprived of access to auxiliary reproductive technologies at all. For comparison, in Ukraine customers (Art. 123 of item 2 of the Family code of Ukraine) will be anyway recognized parents, and by the legislation of Belarus has no legal value whether future parents in the registered marriage consist.

The Russian law does not stipulate a situation after divorce or in case of death of parents till the child`s birth. The contract is signed, the child is conceived whether but he will have the right for the alimony or inheritance? - this question the legislator left open and it must be assumed that the answer to it negative: no, the child will not be able to receive contents from the unaccomplished parent or to become the successor after his death.

Whether competently made contract will help to avoid possible problems? Yes and no. The child not of can be object of the contract therefore to oblige substitute mother transfer the child neither the contract, nor court can. The right to leave or transfer the child belongs only to substitute mother. And customers have only the right for an appeal to the court for compensation of the spent means which their expectations and hopes and which, most likely, will never receive back spent means even in the presence of the judgment will not pay off. However competently made contract will help though somewhat to oblige substitute mother to work honestly and to provide for this purpose financial awards and, respectively, sanctions.