State Regulation of State Regulation of Surrogate Motherhood: Surrogate Motherhood: Liberal or Restrictive Liberal or Restrictive

ApproachApproach

Full Full Professor Dr. Gordana Professor Dr. Gordana Kovaček-StanićKovaček-Stanić

Faculty of Law, University of Faculty of Law, University of Novi Sad, SerbiaNovi Sad, Serbia

FFamily jurisprudenceamily jurisprudence

• Surrogate motherhood, as one of the procedures Surrogate motherhood, as one of the procedures of bio-medically assisted reproductive of bio-medically assisted reproductive technologies, provoketechnologies, provokess different questions which different questions which has to be answered by family legislation of a has to be answered by family legislation of a particular countries, but also, even before by particular countries, but also, even before by family jurisprudence.family jurisprudence.

• One of them is One of them is issue of a biological origin of a issue of a biological origin of a person person

• The basic interest of an individual to know his/hers The basic interest of an individual to know his/hers genetic origin is psychological need for identitygenetic origin is psychological need for identity

• MMedical interestedical interest, as well, as well

The right to know one’s The right to know one’s biological originbiological origin

• The right to know one’s biological origin is The right to know one’s biological origin is considered as a human rightconsidered as a human right and a personal right. and a personal right.

• Personal rights might be subject to limitations. In Personal rights might be subject to limitations. In the jurisprudence of civil law, one speaks of a the jurisprudence of civil law, one speaks of a procedure for balancing values and interests, so procedure for balancing values and interests, so that the legislator in a number of situations limits that the legislator in a number of situations limits the exercise and disposal of personal values, the exercise and disposal of personal values, estimating that the realization of some other estimating that the realization of some other values and interests is more important then the values and interests is more important then the realization of the particular personal value. realization of the particular personal value.

The right to know one’s The right to know one’s biological originbiological origin

• The procedure of balancing values and interests The procedure of balancing values and interests has an exhas an excceptional importance when the right to eptional importance when the right to know one’s biological origin is concerknow one’s biological origin is concernned, as this ed, as this right generally concerns the rights of other right generally concerns the rights of other people, and in particular the rights of the geneticpeople, and in particular the rights of the genetic, , gestational gestational and legal (social) parent. and legal (social) parent.

• The genetic parentThe genetic parent (gestational mother) has (gestational mother) has interest to privacy and non-disclosure of interest to privacy and non-disclosure of information. The sociological parents, as a well-information. The sociological parents, as a well-functioning family, have an interest to protection functioning family, have an interest to protection of the family’s stability and integrity.of the family’s stability and integrity.

The right to know one’s The right to know one’s biological originbiological origin

• The legal impossibility to find out one's origin, as a The legal impossibility to find out one's origin, as a consequence of the principle of anonymity, is an consequence of the principle of anonymity, is an impossibility of primarily legal nature. It can be factual as impossibility of primarily legal nature. It can be factual as well, conditioned by the inexistence of data about the well, conditioned by the inexistence of data about the donorship of the genetic materialdonorship of the genetic material.. The factual inability is The factual inability is only the consequence of the legal one, because data can be only the consequence of the legal one, because data can be saved by keeping registers. saved by keeping registers.

• Concerning the data showing which woman has given birth Concerning the data showing which woman has given birth to the child to the child are are difficult difficult to hide because the to hide because the commissioning couple and the surrogate mother are commissioning couple and the surrogate mother are acquainted, they sign a agreement, and the commissioning acquainted, they sign a agreement, and the commissioning couple then participates in the process of pregnancy and couple then participates in the process of pregnancy and child birth. child birth.

The right to know one’s The right to know one’s biological originbiological origin

• At this moment, a conflict is evident between the At this moment, a conflict is evident between the right to find out one's origin and other rights, the right to find out one's origin and other rights, the right to privacy of the biological parent or the right to privacy of the biological parent or the surrogate mother, and the security of a social surrogate mother, and the security of a social family. The approach to this problem primarily family. The approach to this problem primarily consists of evaluating the significance of the consists of evaluating the significance of the conflicting rights, whether the solution of wider or conflicting rights, whether the solution of wider or narrower possibilities to realise the right to know narrower possibilities to realise the right to know one's origin depends on whether the significance one's origin depends on whether the significance of one or the other right will prevail.of one or the other right will prevail.

The right to know one’s The right to know one’s biological originbiological origin

• On the other hand, one might ask a question On the other hand, one might ask a question if it is necessary that the right of the child to if it is necessary that the right of the child to know his/her genetic origin and the right to know his/her genetic origin and the right to privacy and family stability be in conflict.privacy and family stability be in conflict.

• Another Another possible approach would be to possible approach would be to attempt to eliminate the existing conflict of attempt to eliminate the existing conflict of rights. rights.

• This solution assumes a radical change of the This solution assumes a radical change of the legal, social and individual view to legal, social and individual view to parpareenthood. nthood.

The right to know one’s The right to know one’s biological originbiological origin

• It would be necessary to accept and aprove It would be necessary to accept and aprove of the fact that the child may have more of the fact that the child may have more than two parents with different roles than two parents with different roles (biological, i.e. genetical parents, the (biological, i.e. genetical parents, the gestational mother, and the social or legal gestational mother, and the social or legal parents). parents).

• This theoretical solution is the closest to the This theoretical solution is the closest to the real circumstences. real circumstences. Whether family law will Whether family law will go in this direction or not is left for the go in this direction or not is left for the future to decide.future to decide.

Forms of surrogate Forms of surrogate motherhoodmotherhood

• AA surrogate mother gives birth to a child surrogate mother gives birth to a child who is genetically hers (partial, geneticwho is genetically hers (partial, genetic s.)s.)

• A A surrogate mother only carries and surrogate mother only carries and delivers the child, the child genetically delivers the child, the child genetically belongs to the couple who wants the belongs to the couple who wants the child, either the egg cell of the third child, either the egg cell of the third woman (donor) is fertilised or the embryo woman (donor) is fertilised or the embryo is donated (full, total gestational sis donated (full, total gestational s..) )

Forms of surrogate Forms of surrogate motherhoodmotherhood

• Family surrogacy (between relatives)Family surrogacy (between relatives)

• Friend surrogacyFriend surrogacy

• Surrogacy in which there is no prior Surrogacy in which there is no prior relationship betweeen the surrogate relationship betweeen the surrogate mother and the woman who wants mother and the woman who wants the child.the child.

Family surrogacyFamily surrogacy

• MMother for her daughter (becoming at the same other for her daughter (becoming at the same time the mother and grandmother)time the mother and grandmother)

• DDughter for her mother andughter for her mother and stepfather stepfather (becoming (becoming the mother and half-sister of the child, and her the mother and half-sister of the child, and her children half-brothers and half-uncles of the child)children half-brothers and half-uncles of the child)

• SSister for her sister are relatively frequent ister for her sister are relatively frequent (becoming the mother and aunt)(becoming the mother and aunt)

• SSister gave birth for her homosexual brother and ister gave birth for her homosexual brother and his partner by fertilisation of her egg cell with the his partner by fertilisation of her egg cell with the sperm of the partner (becoming the mother and sperm of the partner (becoming the mother and aunt)aunt)

Family surrogacyFamily surrogacy

• The positive sides: no complications concerning the The positive sides: no complications concerning the concession of the child;family relation assumes that concession of the child;family relation assumes that surrogation came about exclusively for altruistic surrogation came about exclusively for altruistic reasonsreasons

• Negative sides: a confusion between relatives, double Negative sides: a confusion between relatives, double relations. This fact can have different significance in relations. This fact can have different significance in different social circumstances, depending on how much different social circumstances, depending on how much a society gives importance to family relations.a society gives importance to family relations.

• A danger that the woman who cannot give birth to a A danger that the woman who cannot give birth to a child askschild asks a relative a relative to be sm, and if to be sm, and if a relative a relative refuses refuses or consents against her wishes, the relatioship between or consents against her wishes, the relatioship between thethemm may be disrupted. may be disrupted.

Friend surrogacyFriend surrogacy

• Friend surrogacyFriend surrogacy: : Similar positive sides as Similar positive sides as the the sur.sur. between relatives, between relatives, butbut it does not it does not have the essential negative side related to have the essential negative side related to the confusion of family relations. the confusion of family relations.

• NNegative side is connected to the different egative side is connected to the different understanding of the acceptability of understanding of the acceptability of surrogate motherhood as a manner of surrogate motherhood as a manner of childbirth which can lead to disruption in the childbirth which can lead to disruption in the relationship between the parties connected relationship between the parties connected by friendly relations.by friendly relations.

Surrogacy- no prior Surrogacy- no prior relationship relationship

• Positive side is that there is no disruption in family Positive side is that there is no disruption in family or frindsor frindshiphip relations relations

• Negative side is that it includes the commercial Negative side is that it includes the commercial elementelement

• In the countries in which surrogacy is allowed and In the countries in which surrogacy is allowed and regulated, only a sum of money given that is regulated, only a sum of money given that is considered reasonable is generally accepted, such considered reasonable is generally accepted, such as medical expenses, pregnancy expenses, and as medical expenses, pregnancy expenses, and lost income lost income

• CCommercialization in the sense of buying the child ommercialization in the sense of buying the child is forbidden is forbidden

• Negative side the surrogate mother decides after Negative side the surrogate mother decides after childbirth to keep the child childbirth to keep the child

• The opposite situation can happen as well, that The opposite situation can happen as well, that neither the surrogate mother nor the couple who neither the surrogate mother nor the couple who commissioned the child want to raise the child, commissioned the child want to raise the child, because it does not because it does not fulfill their wishes. A child fulfill their wishes. A child with defects can be born, or twins are born, and with defects can be born, or twins are born, and the couple wants only one child, sometimes the the couple wants only one child, sometimes the child is of inadequate sexchild is of inadequate sex – legal proceedings – legal proceedings

Surrogacy- no prior Surrogacy- no prior relationship relationship

Comparative law Comparative law

• Legislations that permit surrogate Legislations that permit surrogate motherhood: Greece, the United motherhood: Greece, the United Kingdom, Israel, Ukraine, Georgia, Kingdom, Israel, Ukraine, Georgia, Romania (in draft). Romania (in draft).

• Some countries, like the Netherlands Some countries, like the Netherlands and Russia, do not have legislations and Russia, do not have legislations about surrogate motherhood, but this about surrogate motherhood, but this practice is considered permissible.practice is considered permissible.

Legislations which not Legislations which not permit surrogate permit surrogate

motherhoodmotherhood• In a certain number of European In a certain number of European

countries surrogate motherhood is countries surrogate motherhood is not permitted (Sweden, Norway) and not permitted (Sweden, Norway) and in some it is expressly prohibited in some it is expressly prohibited (Germany, Austria, France, Italy, (Germany, Austria, France, Italy, Spain, SwitzerlandSpain, Switzerland,, Slovenia). Slovenia).

Serbian legislation Serbian legislation

• Serbian ConstitutionSerbian Constitution:: everyone has the right everyone has the right to freely make decisions about childbirthto freely make decisions about childbirth..

• Nowdays legislation of Serbia does not Nowdays legislation of Serbia does not permit surrogate motherhood. Relevant permit surrogate motherhood. Relevant acts are the Family Act of Serbia 2005, and acts are the Family Act of Serbia 2005, and the Act of Treatment of Infertility with Bio-the Act of Treatment of Infertility with Bio-Medically Assisted Procedures 2009Medically Assisted Procedures 2009

•   Draft Draft Civil CodeCivil Code:: sm would be permitted - sm would be permitted - alternative solutionsalternative solutions

Serbian legislationSerbian legislation • Considering that in Serbia surrogate motherhood has Considering that in Serbia surrogate motherhood has

not been permitted up until now, and the question not been permitted up until now, and the question remains how it would be received if permitted, we remains how it would be received if permitted, we think the law should start from more restrictive think the law should start from more restrictive solutions. solutions.

• Permit only full surrogacy Permit only full surrogacy

• The genetic material should originate from at least The genetic material should originate from at least one of the persons who want the child, and perhaps it one of the persons who want the child, and perhaps it would be simplest to start with surrogate motherhood would be simplest to start with surrogate motherhood only if the genetic material originates from both only if the genetic material originates from both persons.persons.

• Not allow Not allow posthumous posthumous fertilisation combined with fertilisation combined with sm.sm.

• Not allow surrogacy between relatives, considering Not allow surrogacy between relatives, considering the social and legal importance of family relations in the social and legal importance of family relations in Serbia. Serbia.

Serbian legislation Serbian legislation

• At this moment, only married or heterosexual At this moment, only married or heterosexual extramarital partners should be considered as extramarital partners should be considered as subjects of surrogate motherhood, since in Serbia subjects of surrogate motherhood, since in Serbia there is no regulation for same-sex partnership, there is no regulation for same-sex partnership, and it seems clear that the rights of homosexual and it seems clear that the rights of homosexual partners should not start from reproductive partners should not start from reproductive rights. rights.

• A woman without a permanent partner should A woman without a permanent partner should only under special conditions, and only out of only under special conditions, and only out of medical reasons, with the permission of the court, medical reasons, with the permission of the court, have access to surrogate motherhood.have access to surrogate motherhood.

Serbian legislation Serbian legislation

• The important conditionThe important condition: : residency of residency of the parties. the parties.

• The condition the surrogate mother The condition the surrogate mother has already had children.has already had children.

• Mandatory psycho-social counselingMandatory psycho-social counseling

Serbian legislation Serbian legislation

• In positive Serbian law, the child does In positive Serbian law, the child does not have the right to know his/her not have the right to know his/her origins according to the Act of origins according to the Act of Treatment of Treatment of Infertility with Bio-Infertility with Bio-Medically Medically Assisted Assisted Procedures. The Procedures. The Draft of the Civil Code provides a more Draft of the Civil Code provides a more contemporary solution, according to contemporary solution, according to which a child would have this right.which a child would have this right.

Thank you for the attentionThank you for the attention