Legal Aspects of Surrogacy

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A newborn child always brings a bit of happiness into this world. However, not everyone is entitled to this happiness. Extraordinary success in the development of reproductive technologies gave hope to those people who had already lost hope in having a child of their own.

However, as it often happens, development of science leaves behind legal and formal regulations of the scientific achievements.

Legal norms are far from being flawless and they always drag behind the development of society.

Nowadays legal support of surrogacy and of other reproductive technologies programmes is one of the most complicated legal issues. Generally, people tend to think that surrogacy is carrying your baby by another woman at your request. From the legal point of view and in terms of common sense; that’s not quite right.

This article will cover surrogacy itself as well as “pseudosurrogacy”. To discriminate between these two notions, it would be reasonable if we introduced a broader notion of “reproductive maternity” here.

First of all, we’d like to say that the modern Russian legislation is one of the most liberal ones in the world in terms of reproductive technologies.

Konstantin Svitnev

“Rosjurconsulting” CEO. Konstantin Nikolayevich Svitnev is a member of the Russian Association of Human Reproduction (RAHR) and the American Society for Reproductive Medicine (ASRM) and a legal expert with the European Society for Human Reproduction and Embryology (ESHRE).

Let’s have a look at the Russian law.

The Healthcare Act of 22/06/1993 #5487-1, Article 35 ‘Artificial Fertilization and Embryo Implantation’ states:

— ‘Any major woman of the fertile age is entitled to the right to artificial fertilization and embryo implantation;
— Artificial fertilization and embryo implantation can be carried out in medical institutions that have obtained a licence for medical practice with written consent of parents (or of a single woman);
— Any information concerning artificial fertilization or embryo implantation, as well as the donor’s name are confidential and constitute a medical secret;
— Woman is entitled to the right to be aware of the procedure of artificial fertilization and embryo implantation, of medical and legal consequences, of the genetic examination results, of the donor’s appearance and ethnic origin. All this information must be provided by the doctor in charge’.

Thus, any woman, married or not, with her own or her husband’s consent (in case she’s married) can now be artificially fecundated and have an embryo implanted in specialized medical institutions with a licence and thus become a surrogate or reproductive mother.

Here we should add though, that according to law, surrogacy means carrying a baby only for a married couple (i.e. for people who are officially married at the moment of the embryo implantation). In no way is this baby biologically related to the gestational carrier.

For a married couple to implement a surrogacy programme, they have to obtain certain medical prescriptions. Certain prerequisites should be taken into account when implementing a surrogacy programme.

Medical prescriptions:

  • Absence of uterus (acquired or innate);
  • Uterus deformations;
  • Incurable uterus synechia;
  • Somatic diseases that could impede pregnancy;
  • Numerous IVF failures.

It should be noted that it is not every woman that can become a surrogate. The Russian law states that ‘only those women who have given their consent to participate in surrogacy programmes can become surrogate mothers’.

Here are the requirements for surrogate mothers:

  • age 20-35;
  • at least one child of her own;
  • good somatic and mental health.

Thus, according to law, only woman conforming to the requirements mentioned above can be treated as surrogate mother.

So, according to the Russian law, all other programmes on the basis of reproductive technologies but different from the one described above are not surrogacy programmes. In this case, as we have already mentioned it, it would be better to use terms ‘reproductive maternity’ and ‘reproductive mothers’.

The main problem that might expect biological (intended) parents when they decide to implement a surrogacy programme is that the surrogate mother might decide to keep the baby upon delivery and not to give her consent to put the intended parents’ names on the baby’s Birth Certificate.

To avoid this, we strongly recommend you to consult an experienced lawyer for him or her to make up the correct contract for you. We can cite you numerous examples when a couple fell victim to a surrogate who refused to give up the baby for the intended parents.

As the Russian legislation stipulates that surrogates can keep the babies they deliver, it is vitally important to make up correct contracts and agreements and discuss all the details of the affair in advance. However, even the correct wording of the contract sometimes fails to save the baby.

The thing is that you can only sign a contract that would stipulate the transfer of the civil rights and obligations. You cannot sign a contract of ‘giving up the baby for intended parents’ because a baby cannot act as an object of the contract. The contract you sign only states that you contribute to creating favourable conditions for the period of pregnancy and after it by paying the surrogate a certain remuneration. However, a correct contract should contain an article saying that the surrogate reimburses all the intended parents’ expenses in case she decides to keep the baby.

Here we could give you some advice:

  1. Turn to qualified legal counsels for them to draw up a correct contract between you and the surrogate or reproductive mother.
  2. Ask the surrogate mother to give her written consent for participating in this programme.
  3. Send the document for a legal expertise at the medical centre where the medical part of the programme will be implemented.
  4. Talks with the surrogate or reproductive mother should be arranged by qualified lawyers or in their presence.
  5. Have all the necessary documents signed by the surrogate or reproductive mother prior to the birth of the baby.
  6. Work through the family law agency you have turned to from beginning to end for it to represent you in court in case of a dispute.

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