Ïðàâî/ 8. Êîíñòèòóöèîííîå ïðàâî
M.j. Koritnikova N.
A.Baitursynov Kostanai State University
Having
another woman bear a child for a couple to raise, usually with the male half of
the couple as the genetic father, is referred to in antiquity. Babylonian law
and custom allowed this practice and infertile woman could use the practice to
avoid the divorce which would otherwise be inevitable [1].
In general, surrogacy may be defined as an arrangement in which a woman
carries and delivers a child for another couple or person. This woman may be
the child's genetic
mother (called traditional
surrogacy), or she may carry the pregnancy to delivery after having an embryo, to which she has
no genetic relationship whatsoever, transferred to her uterus (called gestational surrogacy). If the
pregnant woman received compensation for carrying and delivering the child
(besides medical and other reasonable expenses) the arrangement is called a commercial surrogacy, otherwise the
arrangement is sometimes referred to as an altruistic surrogacy [2].
The
legal aspects surrounding surrogacy are very complex and mostly unsettled.
There is a default legal assumption in most countries that the woman giving
birth to a child is that child's legal mother. In some jurisdictions the
possibility of surrogacy has been legally allowed and as a result, the intended
parents may be recognized as the legal parents right from the birth of a baby.
Many states now issue pre-birth orders through the courts placing the name(s)
of the intended parent(s) on the birth certificate from the start. In other
states that do not issue such orders, the possibility of surrogacy is either
not recognized (all contracts specifying different legal parents are void), or
is prohibited.
Let’s
make a comparative review the legislation of some states.
In all states
in Australia
(except Tasmania which bans all surrogacy under the Surrogacy Contracts Act 1993), altruistic surrogacy has been the
only recently recognized surrogacy that has become legal. However, in all
states and the Australian Capital Territory arranging commercial surrogacy is a
criminal offense, although the Northern Territory has no
legislation governing surrogacy at all and there are no plans to introduce laws
on surrogacy into the NT Legislative Assembly in near the future [3].
Canada allows
surrogacy and it is governed by the Assisted Human Reproduction Act (AHRC) -
and it outlines that all expenses that are contributed to the surrogacy can be
paid to the surrogate by the intended parents. Expenses must be accompanied
with official receipts. In the province of Quebec, contracts that involve
surrogacy are unenforceable [4].
In France,
since 1994, any surrogacy arrangement that is commercial or altruistic, is
illegal or unlawful and is not sanctioned by the law (art 16-7 of the Code
Civil). The French Courts the Cessation already took this point of view in
1991. It held that if any couple makes an agreement or arranges with another person
that she is to bear the husband's child and surrender it on birth to the
couple, and that she is choosing that she will not keep the child, the couple
making such an agreement or arrangement, is not allowed to adopt the child. In
its judgment the court held that such an agreement is illegal on the basis of
articles 6 & 1128 of the Code Civil, together with article 353 of the same
code [5].
Commercial
surrogacy is illegal in Hungary.
All surrogacy
arrangements (both commercial and altruistic) are illegal in Saudi Arabia. Religious
authorities in this country do not allow the use of surrogate mothers, instead
suggested medical procedures to restore female fertility and ability to
deliver. To this end, Saudi authorities sanctioned the world's first uterus transplant
in an infertile woman [6].
Commercial
surrogacy is legal in India, as recognized by the Supreme Court of India in
2002. India is emerging as a leader in international surrogacy and a destination
in surrogacy-related fertility
tourism. Indian surrogates have been increasingly popular with
fertile couples in industrialized nations because of the relatively low cost.
Indian clinics are at the same time becoming more competitive, not just in the
pricing, but in the hiring and retention of Indian females as surrogates [7].
In March
1996, the Israeli government legalized gestational surrogacy under the
"Embryo Carrying Agreements Law." This law made Israel the first
country in the world to implement a form of state-controlled surrogacy in which
each and every contract must be approved directly by the state [8]. A
state-appointed committee permits surrogacy arrangements to be filed only by
Israeli citizens who share the same religion. Surrogates must be single,
widowed or divorced and only infertile heterosexual couples are allowed to hire
surrogates [9]. The numerous restrictions on surrogacy under Israeli law have
prompted some intended parents to turn to surrogates outside of the country.
All surrogacy
arrangements (both commercial and altruistic) are illegal in Japan. In March 2008, the
Science Council of Japan
proposed a ban on surrogacy and said that doctors, agents and their clients
should be punished for commercial surrogacy arrangements [10].
Altrustic
surrogacy is legal in Belgium and the Netherlands. Only commercial surrogacy is
illegal in Belgium and the Netherlands. Although altrustic surrogacy is legal,
there is only one hospital taking in couples and there are extremely strict
rules to get in. This makes a lot of couples seek their treatment outside the
Netherlands or Belgium [5].
According to the Code of the Republic of Kazakhstan on Marriage (Matrimony)
and Family (CM(M)F) surrogate maternity is defined as bearing and birth of the child (children), including
cases of premature delivery according the contract between the surrogate mother
and the spouses with the payment of repayment [11].
Surrogate
mother – a woman, nurtured the child after the application of assisted
reproductive techniques and technologies and having the child/children to
customers under the contract of surrogate motherhood. The main requirements to surrogate mother is specified in article 56 CM(M)F. The women willing to become a surrogate
mother shall be aged from twenty to thirty five years and have satisfactory
physical, mental and reproductive health confirmed by the conclusion of medical
organization and also have own healthy child. If the surrogate mother is married at the conclusion
of the surrogate maternity agreement it is necessary to present the written
consent of the spouse, which must be certified by a notary.
Surrogate maternity in the Republic of Kazakhstan is based on two contract:
- agreement between spouses (clients) and surrogate
mother (Surrogate maternity agreement),
- contract with the medical organization applying auxiliary reproductive
techniques and technologies that will provide appropriate services
Surrogate
motherhood contract – notarized certificate of a written agreement between
persons who are married and who wish to have a child and a woman who agrees to
bear and birth of the child (children) through the use of assisted reproductive
techniques and technologies.
This agreement shall contain the following
information:
1.
information about spouses (clients) and surrogate
mother;
2.
procedure, conditions and frequency of payment of
material costs for maintenance of surrogate mother;
3.
rights, obligations and responsibilities of the
parties;
4.
amount and procedure of compensations of the material
costs connected with medical examination of a surrogate mother, costs connected
with application of ancillary reproductive methods and technologies and the
costs for medical care of surrogate mother during the period of pregnancy,
childbearing and after childbearing within fifty six days, and in case of
complicated childbearing pay the costs within seventy days;
5.
other conditions, including force-majeure
circumstances.
When concluding the surrogate
maternity agreement the surrogate mother is obliged:
1) to submit to the clients a medical
certificate of her physical, mental and reproductive health;
2) to be followed up by a doctor
regularly and strictly follow his recommendations and prescriptions;
3) to inform the persons entered into
agreement with her about the course of pregnancy with regularity stipulated in
the agreement;
4) to pass the born child to the
persons entered into surrogate maternity agreement with her.
Besides that, the surrogate mother may not pass the
child to other persons.
As for legal consequences of surrogate maternity
agreement, they are following.
The spouses (clients) are acknowledged as parents of
the child born as a result of application of ancillary reproductive methods and
technologies. In case of birth of
more than one child as a result of application of these methods and
technologies, the spouses (clients) are responsible for each born child
equally.
Upon birth of the child, the spouse (client) entered
into surrogate maternity agreement is recorded as mother of the child in a
medical certificate of birth.
The refusal of spouses (clients) from the child is executed
within the legal terms after his birth registration in the civil registry
office of territorial justice agency. In
case of refusal from the child the spouses (clients) gave their consent to
application of ancillary reproductive methods and technologies or entered into
the surrogate maternity agreement may not require from the surrogate mother for
compensation of material costs. In case of
refusal of the spouses (clients) entered into the surrogate maternity agreement
from the child, the maternity right is remained with the surrogate mother at
her will and in case of her refusal the is handed for state care. In case of refusal of the spouses
(clients) from the child and his/her adoption by the surrogate mother, these
persons are obliged to pay compensation to the surrogate mother in the amount
and in the order stipulated in the agreement.
In case of dissolution of marriage (matrimony) of
spouses (clients), the responsibility for the child born according to the
surrogate maternity agreement is imposed on both spouses (clients).
In case of death of one of the spouses (clients), the
responsibility for the child born according to the surrogate maternity
agreement is imposed on survived ones.
In case of
death of both spouses (clients) and refusal of their close relatives to adopt
the born child, the child, at surrogate mother’s will, can be passed to her,
and in case of her refusal – for state care. Transmission of the child to surrogate mother or state
organizations as a guardianship doesn’t interfere with his rights as a heir of
spouses (clients).
Even
when the surrogate cases are successful in providing couples with children,
there are serious ethical issues of surrogate maternity.
Literature:
1Postgate, J.N.Early Mesopotamia Society andEconomy at the Dawn of History. Routledge. , 1992., p. 105.
2"Assisted Reproductive Technology (ART) Glossary".Reproductive Technology Council. http: // www.rtr.org.au/glossary
3. http: // www.dcm.nt.gov.au
4 Civil Code of Quebec, 1991, c.64, article 541
5 Hugh Beale, Arthur Hartkamp, Hein Kotx, Dennis Tallon, Cases, materials and
text on contract law, ius commune casebooks on the Common Law of Europe, Hart
Publishing, 2002, p. 302
6 http:// www.query.nytimes.com/gst/fullpage.html
7 The Associated Press (2007-12-30). "India's
surrogate mother business raises questions of global ethics". Daily News.
8 Teman, Elly "Birthing
a Mother: The Surrogate Body and the Pregnant Self". Berkeley:
University of California Press, (2010).
9 Weisberg, D.
Kelly.. The Birth of Surrogacy in Israel. Florida: University of Florida Press,
2005
10 Kyodo News http://www.japantoday.com
11 Code of the Republic of Kazakhstan on
Marriage (Matrimony) and Family, N518-IV, 26 December, 2011