Legal regulation of surrogacy

Increasing the birth rate is a priority task of state importance. That is why the Concept of Demographic Policy was developed, which is valid until 2025. It, among other things, implies assistance and all possible assistance to couples who need the use of reproductive assistive technologies. Since surrogacy is one such technology, it is also supported at the state level. However, in practice, many problems and “white spots” are revealed in the legislation, which presents serious difficulties for both surrogate mothers and those who intend to use their services in order to achieve the cherished goal of becoming parents.

The surrogate motherhood program involves the participation of three - the biological parents of the future baby and the performer - the surrogate mother, which, on the recommendation of the WHO, is more correctly called "gestational courier". The sex cells of the spouses are used for in vitro fertilization, after which the resulting embryos are transplanted into the uterine cavity of the gestational carrier in a certain amount.

Surmama will have to bear and give birth to a baby, which, due to certain medical and other reasons, cannot be borne and given birth to the biological mother itself (the woman who owns the egg used for IVF).

Unfortunately, in Russia there are no special regulations that would clearly regulate the relations of these three - the genetic father, mother and gestational courier. The law on surrogacy is not adopted in our country. Anyway, bye. However, legal regulation is still possible due to the fact that certain articles and paragraphs of existing sources, such as:

• Family Code of the Russian Federation;
• Order No. 107 of the Ministry of Health of Russia “On the Procedure for Using Assisted Reproductive Technologies” (adopted on August 30, 2012, edited version - June 11, 2015);
• Federal Law "On the Basics of Health Protection of Russian Citizens";
• The Constitution of the Russian Federation.

The regulation of the program is based on individual articles and provisions of these documents. However, it is practically impossible to foresee all situations and risks with which participation in the program, both for biological residents and gestational courier, can be associated. Much depends on how and how the contract will be drawn up between the “customers”, which are biological parents (either a single woman or a single man) and a gestational courier who gave voluntary informed consent to participate in the program.

A woman who intends to become a surrogate mother, on the basis of the list of studies provided for by the order of the Ministry of Health No. 107-n, undergoes a detailed and extensive medical examination. After receiving the opinion of doctors, including a psychiatrist, a narcologist, she must provide the clinic or intermediary agency with her passport details, SNILS, copies of birth certificates of children, as well as a written notarized consent of her spouse to participate in the surrogate motherhood program, if the woman currently officially married.Only after that it is included in the registry of surrogates.

As soon as there is a couple who is satisfied with the candidacy of a surrogate mother, the most important document is signed - the surrogacy agreement. As a rule, it is not found among the template samples, it does not exist in legal registries.

The surmaturism treaty is a matter of constant dispute. Some lawyers consider it family-legal, and others - compensated, similar to contracts for the provision of any paid services. It is important to understand that the gestational courier assumes the obligation to bear, give birth and hand over the child to the biological parents within a certain period after the birth (usually it is 1-3 days from the moment the baby is born). However, the child himself is a completely separate person, he cannot be the subject of a contract, this is contrary to the constitutional rights of the child.

Under the same contract, biological parents undertake to pay the agreed and specified (up to a penny) amount on time. It is usually assumed that an advance payment in the amount of 10% of the fee is paid, and after giving birth, the remaining 90% of the sum is paid when the child is transferred to the woman.

To avoid problems with the registration of the newborn in the registry office after his birth, as well as unforeseen difficulties during pregnancy The following points should be described in the contract:

• the deadline for signing the written consent of the woman in childbirth to register the child at the registry office with biological parents;
• the embryo belongs to a certain father and a certain mother;
• rejection of claims for a newborn by the gestational courier;
• the consent of both spouses to IVF using surrogate motherhood;
• affiliation of the embryo to one of the spouses in case of their divorce during pregnancy of the gestational courier;
• consequences for the surrogate mother’s violation of the recommended medical regimen, safety rules and a healthy lifestyle while carrying a baby;
• consequences for refusing to give up the baby after childbirth;
• consequences for violation by the biological parents of the terms of the contract.

Lawyers warn that even the most detailed and detailed contract cannot, alas, provide for all the nuances of such a delicate matter, and, in fact, does not guarantee that the surrogate will surrender the child. Her refusal to give the baby after childbirth, if she became attached to it wholeheartedly, is morally condemned, and is also considered an abuse of the right, but is not imprisoned for it. Until recently, the courts considered convincing and giving birth more convincing than the biological nature of the child.

In 2016, the State Duma made a proposal to amend some norms of the Family Code so that the triumph of genes for the fact of childbirth was considered a priority. In 2018, lawmakers are preparing to adopt an appropriate bill that will significantly simplify the registration of a baby born by a gestational courier, as well as protect the rights of biological parents if they have to prove their right to a child in court.

Also, a surrogate motherhood contract in the form in which it exists today (in fact, in an arbitrary) does not guarantee the biological parents that they will not become victims of a fraudster who takes a prepayment and disappears with her.Often, you can find complaints about blackmailers, who, having become pregnant, begin to demand from the "customers" an increase in the fee, purchase of a car or apartment over the contract, threatening abortion.

A woman who decided to become a gestational courier should understand how important her decency, commitment and accuracy in all matters are for people who expect her to fulfill their most cherished dream. Her main responsibilities are to comply with the regimen, visit a doctor, take medications, if they are prescribed, do not smoke, do not take drugs and alcohol; all emerging questions should be solved by the surrogate or with biological parents or with the curator (reproductive agencies provide this mediation service).

Independently make decisions regarding the unborn baby, the gestational courier has no moral or legal right. A woman should not claim a child - he is not her mother.

The rights of surrogates are not prescribed anywhere, legal acts do not say anything about them. According to the established practice, a woman can count on the payment of the advance part after the conclusion of the contract and the remaining amount of the fee immediately after delivery. After confirming the transfer of the amount, she gives a written consent to register the child in the registry office.

The gestational courier has the right to independently assess the amount of the fee, as well as set the amount of monthly cash payments. If the candidate's requests are higher than the financial capacities of bioregents, they may refuse to cooperate, but it is important to resolve this issue before signing the contract. The average size of the fee in Russia in 2018 is from 1 to 3 million rubles.

A woman may ask instead of cash remuneration for childbirth to buy her an apartment. This must be taken into account when drafting the contract. A surmama, in consultation with bioregents, may demand that she rent an apartment during pregnancy, provide her with food and pay for the cost of all medicines, vitamins, as well as her clothing costs (pregnant women have to change their wardrobe).

In some cases, surrogates are asked, and bioregents do not refuse them to pay for trips to a sanatorium or stay at a resort, as this is very useful for the unborn child. This possibility is also worth providing in the contract.

The biological mother (and father too) have the full right to receive all the detailed medical information regarding pregnancy and the upcoming birth. They can accompany the surrogate on an appointment with a doctor, or they can authorize a curator to do so. In this case, you will need a written and notarized consent to receive information by a third party (curator).

Parents who are genetically related to the unborn child are entitled to establish reasonable control over the surmum, and ask her to report on her diet and medication.

All decisions regarding issues and problems arising in the process of gestation, the biological mother must and can solve. In some cases, bioregents insist that the surmum live in their home before giving birth, so it is easier for them to monitor her condition, well-being and compliance with the recommendations and prohibitions.

The biomama should respect the human dignity of the gestational courier, treat it politely. The cost of services, if it is already negotiated and recorded in the contract, cannot be reduced by biological residents unilaterally.A woman who has to raise and raise a child has the full right to insist that the surrogate mother observe her requirements regarding personal hygiene, food rations and walks.

Lawsuits on surrogacy in ours are not as common as in the United States or a number of other countries. Several processes that have added and supplemented the Russian judicial practice and which are recommended by the Supreme Court of the Russian Federation as a legal basis have become widely known.

In 2009, a decision was made in St. Petersburg on the “Natalia Gorsky case”. A woman who could not have children, used the services of a gestational courier, but could not register the child at the registry office as her own. The court sided with the biomaterial, allowing the registration of the infant with the indication of Gorska in the line “Mother” and a dash in the line “Father”. This decision gave the "green light" to many single women who had the opportunity to experience the joy of motherhood, despite the diagnoses, age and lack of a permanent sexual partner.

A year later, a similar process took place in Moscow, but only the plaintiff was made by a single man who also could not register a child at the registry office. Registrars refused to put a dash in the column "Mother". But they had to do this by a court decision. Similarly, men who do not have a wife or life partner have been given the right to IVF using donor oocytes and their own sperm and the subsequent recognition of their right to be single fathers.

The concept of “surrogate motherhood” has yet to be finalized at the legislative level. Given the growing number of infertile couples, such a need has matured, because the gestational couriers who participate in the program, and people who expect the appearance of long-awaited offspring, should be as protected by law as possible. Lawyers emphasize that it is necessary to fix not only the Family Code and the Federal Law "On the Registry Office", but also the Criminal Code, in particular, articles on fraud and kidnapping, if the child is not given to biological parents.

On the legal aspects of surrogacy in Russia, see the following video.