It is no longer possible to leave the topic of surrogacy “out of legal attention,” Prime Minister Dmitry Medvedev said at the St. Petersburg International Legal Forum in mid-May. Legislators have already responded and promise to deal with the state registration of children from surrogate mothers so that they are not left without proper protection and medical care. It is possible that surrogate mothers will lose the opportunity not to give the child to their parents. But there are still more legal and ethical questions than answers, experts admit.
There is no unequivocal attitude in the world towards surrogate motherhood - assisted reproductive technology, in which a woman bears a genetically alien child for her parents. It is completely banned in Germany, Austria, France, Italy, Sweden, Norway, partially in the UK, Canada, India, where the use of this technology for commercial purposes is not allowed. In the UK, for example, a woman can carry a child for her relative. Russia is one of the few European countries where it is not prohibited, including for commercial purposes. But there is one limitation - a surrogate mother cannot be an egg donor at the same time.
Russian legislation in this area turned out to be the most democratic, but internally contradictory and practically does not answer many complex not only ethical, but also legal issues. Moreover, the practice has long been different from what is written in the laws. According to the Family Code of the Russian Federation, parents can only register married spouses and only with the consent of the surrogate mother. But the law "On the basics of protecting the health of citizens in the Russian Federation" gives such a right to assistive technology to single women and couples outside of marriage. In practice, both single mothers and fathers sought the registration of a child through the court.
Child as a Service
“We are working in a legal vacuum. For the first time, the concept of “surrogate motherhood” at the legislative level arose in 1995 when the Family Code of the Russian Federation was adopted,”confirms the existence of the problem, Alexander Klikushin, chairman of the judiciary for family matters and cases of protecting the rights of children of the Supreme Court. According to him, over the past three years, in St. Petersburg alone, 14 single fathers who turned to surrogate mothers were registered in their own name through the court.
“It is imperative to put things in order here. Indeed, these citizens go to court. The courts have established that he is the father of this child. And in the column "mother" what is it? Dash? It turns out people with an undefined legal status. He was born, but he has no mother. How can this be? This is nonsense,”Alexander Klikushin said at the forum. According to him, now the courts are faced with disputes about the refusal of single men in the surrogacy service.
Surrogacy is only permitted by law when using their sex cells, but people buy donor embryos for this purpose. That is, first they buy a "product", then a "service". “If this goes on, then the Law on the Protection of Consumer Rights will have to be extended to the birth of children. He gave birth to a poor-quality child - we will exact a fine, moral damage,”Alexander Klikushin was indignant and ironic.
Such situations are scandalous and ambiguous, but nevertheless they do not occur so often in practice, according to medical statistics. According to Vladislav Korsak, President of the Russian Association for Human Reproduction (RAHR), surrogacy accounts for only 1% to 1.7% of all assisted reproductive technologies. According to the annual reports of Russian reproductive clinics, more than 768 thousand cycles of assisted reproductive technologies have been performed in Russia since 1995, more than 120 thousand in the last year.
Nevertheless, the lack of clear regulation has led to the widespread use of assistive technologies in Russia, and admits. about. Lidiya Mikheeva, Chairman of the Council of the Private Law Research Center. Even reproductive tourism has emerged - for this, people come to Russia from abroad, in particular, from China.
The right to be parents
Legislators decided to start putting things in order in this area with the issue of registering children born as a result of surrogate motherhood. A group of senators has already submitted a draft to the State Duma allowing it to be unmarried couples and single women. Now for this they have to go to court, which takes a long time and effort, but they are almost always guaranteed success there. According to one of the authors of the project, the head of the Federation Council Committee on Social Policy Valery Ryazansky, the document was previously supported by the Ministry of Justice and the Ministry of Health.
The judicial path is not a panacea, since during the litigation the child is without rights, in particular, to free medical care, medical food and any state support, explains Valery Ryazansky. “There is a child, but in reality he is not,” he describes such situations.
Born under a contract
Senators also intend to streamline and conclude agreements between the clinic, genetic parents and a surrogate mother. In their opinion, such a document must be certified by a notary. Now this is not required, and there are no particularly strict requirements for it either.
“This is not an agreement on the sale and purchase, this is an agreement on the birth of a person, and it does not even have a mandatory notarial form. It's amazingly simple. The agreement protects the interests of not only the surrogate mother and genetic parents, but also the future person, - Alexander Klikushin agrees with the idea of the senators of the Russian Federation.
The lack of rules leads to attempts to abuse the parties. Surrogate mothers refuse to transfer children to genetic parents for various reasons, while the latter, on the contrary, sometimes refuse to take them. According to Alexander Klikushin, there were situations when a couple turned to several surrogate mothers and then took the child they liked most.
“The biggest problem with surrogate motherhood is the possible refusal of such a mother to give the child to genetic parents,” says Ksenia Ivanova, managing partner of the Ivanovy and Partners Bar Association. For the first time in the country, she managed to sue children from a surrogate mother in favor of their genetic parents.
Prior to that, the courts literally read the Family Code and left children to surrogate mothers if they insisted on it. But in 2017, the Supreme Court of the Russian Federation made a relief, admitting that in the event of a dispute, children can be passed on to genetic parents. To do this, he instructed the courts to approach such disputes individually, to find out all the circumstances of the conflict, and based on this determine who the children will be left with. This approach was enshrined in the resolution of its plenum.
According to Ksenia Ivanova, if surrogate motherhood is considered legal, then, as a general rule, such mothers should not have the right to refuse to transfer children, the priority should be given to genetic parents. Otherwise, this is a discrediting of the institution itself, she believes, but it is stipulated that in exceptional cases the courts should be able to leave the child and the surrogate mother.
President of the RAHR Vladislav Korsak said that lawmakers are also interested in this issue and are developing a bill that deprives surrogate mothers of the right to refuse to transfer a born child to his parents. This will allow avoiding cases of blackmail when a surrogate mother demands to pay her extra for a "service", deciding that the payment under the contract is too low.
But these problems are just the tip of the iceberg, experts admit. “We do not give a full report on what problems will arise,” says judge Alexander Klikushin. One of them is determining the date of birth of children, for example, from different surrogate mothers, to whom the couple turned at the same time. It should be borne in mind that if the actual date of birth of children is indicated in the birth certificate of children, then according to the documents it may turn out that they appeared in the mother with a difference from a few days to a couple of months.
A more difficult situation is with cryopreserved embryos during the life of a couple. In the event of their death, the embryo becomes an inheritance, but it can also become an heir in case of birth, says Lydia Mikheeva. “For this, other heirs of this married couple must accept the inheritance, find a surrogate mother, ensure manipulations, wait for the birth of the child, work with the registry office after his birth, explain to them how to register the deceased parents as father and mother and achieve the child's acceptance of the inheritance,” - she reasons. But this is not described in Russian legislation and, as a result, is not yet applied in practice.
There should be no "inheritance" of embryos, professor of the Ural State Law University Arkady Mayfat is categorical. Since the embryo was created for certain spouses, they should exclusively use it.
However, even in the case of the death of only one of the spouses, the story does not become less confusing, if the other spouse decides to use a cryopreserved embryo. Questions will surely arise with the registration of a child if he was born much later than the death of his parent. Among them: is he an heir, should he receive a pension for the loss of a breadwinner, says Alexander Klikushin. So far, lawmakers are not ready to provide answers to these questions. And experts agree on one thing - the regulation of issues of assisted reproductive technologies, and surrogacy in particular, should be complete.