"Without Respect to one's Belly: to give birth to and immediately give away a child - is this possible?"
an article by Rosjurconsulting Director General Konstantin Svitnev, legal expert with the European Society for Human Reproduction and Embryology

"ART Regulation in Russia and Elsewhere"
IV International Congress, Current Assisted Reproductive Technologies Issues: Problems and Solutions


Lamara Kelesheva. Photo by Irina Pulya ("Rossiyskya Gazeta")

Albert Likhanov, Head of the Russian Children's Fund, supported our lawyers’ position regarding the third Russian surrogate grandmother Lamara Kelesheva, who has been denied to register her children which came into the world three years after the death of their father. June 9, 2011, Mr. Likhanov sent a letter to Russian President Dmitry Medvedev requesting to take measures for the speedy resolution of the situation.

There is probably no such a woman in Russia who would not know about the heroism of the grandmother Lamara Kelesheva. All television channels told her story to people, as did "Rossiyskaya Gazeta" publishing an article by the well-known journalist and writer Irina Pulya (her notes are given below).

As of June 8, Moscow City Court denied to register four of her grandchildren.

As of June 9, Head of the Children's Fund appealed to the President of Russia Dmitry Medvedev sending him a special letter in defense of the heroic grandmother (appeal’s text is given below).

Appeal’s text:
To the President 
of the Russian Federation
D. A. Medvedev

Mister President,

I am writing to you with regard to the unprecedented story of the 58-year-old Russian woman Lamara Feokharovna Kelesheva: she became a grandmother of four surrogate-born grandchildren which came to the world three years after the death of their father and is now denied to register the babies.
In January 2008, her 26-year-old son Michael died of acute leukemia complications. Michael dreamed of having children and frequently told his mother of his desire to become a father. Before the chemotherapy treatment, he arranged cryopreservation of his genetic material in order to become a father - albeit posthumously.

Wishing to recreate her family, Kelesheva took advantage of the gestational surrogacy program involving two surrogates in conjunction with an oocyte donation program. As a result, January 6, 2011 Kelesheva got four children born on her behalf: Ioann, Feokharis, Michael and Maria.

However, until now Kelesheva could not get birth certificates for their grandchildren - Babushkinskiy District Registry Office of Moscow denied to register the four newborn Russians, referring to the fact that supposedly only married couples are allowed to take advantage of a surrogate mother services in our country.

She went to Babushkinskiy District Court, the court that last year passed ​​a first landmark decision in Russia obliging the district registry office to register a child born as a result of gestational surrogacy program with donor oocytes for a single man. The court found that under Russian law, “there are no prohibitions or restrictions on the possibility for women or for men who are not married, to realize themselves as a mother or father, using methods of assisted reproduction."

However, at this time, the District Court adopted a polar opposite decision, finding that "the legislation contains a pre-requisite for the spouses, intending to make use of a surrogacy program, to be married." The Moscow City Court also failed to recognized the right of Kelesheva to register her children.
Previously, several Russian courts have affirmed the right of the single unmarried women to procreation through surrogacy program.

The corresponding articles of the law on the issue have been already applied in practice in Russia - till now our courts settled such cases in favor of citizens who took advantage of the surrogacy program to become parents and their children. Registry offices’ failures to register children were recognized as illegal more than once. But, despite the court cases, civil registry offices with a persistence worthy of a better keep withholding unmarried people from birth registration; this position has been recently supported by the Babushkinskiy District Court of Moscow, putting the possibility of surrogacy program in dependence on the marital status, which is clearly illegal and contrary to earlier judicial decisions in such cases.

There is a striking and highly inhumane situation where citizens starting complex and expensive reproductive program can not be sure of the position of law enforcer that they eventually will be written by parents of their children. Newborn Russians do not have any documents, including medical insurance policy, and in fact hang in the "legal vacuum".

June 8, Moscow City Court heard the cassation appeal of Lamara Kelesheva. The court denied her in her demands.

The reason is that there is no specific law on assisted reproduction technologies (ART) in Russia, one of which is surrogacy. Current standards of the Family Code of the RF and the Law on Civil Status Acts exclusively define a procedure for registration of surrogate-born children. A pre-requisite for making entries about the parents in the Register of Births is a prior consent of a woman who carried the baby during surrogate pregnancy. At that, this situation is considered in terms of a married couple.

Therefore, the law refers to one of several possible cases in practice. And the meaning of this provision is not that the services of surrogate mothers in Russia is only available to spouses, but that in order to be recorded as parents newfound dads moms need to get formal approval of surrogate mother. That is the surrogate mother - until making entry of the parents in the Register of Births - is seen as the only legitimate mother of the carried baby and can determine his fate; she has right to keep the child or even terminate her surrogate pregnancy.

This special legal standard defining the registration procedure of surrogate children for married couples is misleading, sometimes resulting in absurd conclusion that those who are not married are not allowed to have children! This is not true. Over the last three years various courts of Moscow and St. Petersburg passed at least eight decisions confirming the right of the single unmarried people - both women and men - to procreate through surrogacy programs. Russian courts stand up for people who have become parents through surrogacy, and their infants.

So that all the people could easily take advantage of such programs, while the newborn Russians do not hang in legal vacuum, we need to urgently change not completely correct language of the laws and clearly stipulate that all adult citizens regardless of their marital status could make use of the surrogate mother services.

It should be noted that the requirement of surrogate mother’s consent who has no genetic relationship to the carried ​​child of the commissioning parents to make entry of the parents in the Register of Births opens the possibility of using children as tools of blackmail and extortion; it is clearly outdated and does not correspond to the day-to-day realities. For instance, in Belarus, Kazakhstan, Ukraine, the consent of the surrogate mother is not required; she must give the child to his parents at birth. We need think about such changes in Russian legislation, in order to protect the interests of commissioning parents starting surrogacy programs and the children themselves.

Russian Children's Fund would like to draw your attention to the fact that, in our opinion, L. F. Kelesheva has ​​in the literal sense accomplished a parental feat. Her decision was a decision of biologist, Doctor of Science, supported by her academic readiness for this feat. The authorities should pinnacle the name of this Russian citizen, stressing her willingness to self-sacrificing using world-renowned technologies to extend the life of his son in his sons. You can not think of a best moral monument for a person.

Knowing your indifferent attitude to the fair statutory construction of the national legislation, the Russian Children's Fund asks you to rush orders to the bodies of law, in order to recover the meaning of maternal heroism.

Since the four little Russians now aren’t recognized as people!

Have you ever seen anything like this?

Looking forward, A. A. Likhanov

original article

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