"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

News

11/06/2011

Surrogacy in Russia to be Born in a New Legislation

Anna Kurskaya, RIA Novosti.

A registry office of Moscow and afterwards two judicial bodies, have denied the right of 58-year-old Muscovite Lamara Kelesheva to be called the mother of their grandchildren, born to the surrogate mothers after the death of her only son. The woman asked to put down her name in the field "mother" of the children and the name of her dead son as "father". The problem of official recognition of surrogacy, especially in such difficult cases, is not fully described by legislation and requires a resolution, experts state.

Infertility has become the sharpest social phenomenon all around the world now that changed the usual social, demographic and cultural constants. With the development of assisted reproduction technologies infertile couples in Russia have increasingly begun to take advantage of the surrogate mothers services.
The experts hope that many controversial issues of assisted reproduction technologies can be regulated by the new draft law "On healthcare of the Russian citizens" that has been already approved in its first reading in the State Duma.

Not Available for Everyone, Not Welcome to Everyone

Surrogacy is a human reproduction technology where a woman (surrogate mother) on their own free will intends to undergo the procedure of in-vitro fertilization (IVF), all stages of pregnancy and give birth to biologically non-related child, which is to be passed to his or her genetic parents.

Russia is one of the countries where surrogacy, including commercial, is allowed by law. A surrogate mother can only voluntarily be single or married woman (with spousal consent). She needs to go through the procedure of artificial insemination or embryo implantation in licensed medical facilities and participate in a surrogacy program.

Nowadays, this reproduction technique is not available to all infertile couples. The surrogate mother usually receives a significant compensation from the genetic parents, which limits the availability of this service.

Moreover, for example, the Christian are opposed to surrogacy, based on the fact that it is psychologically devastating for the child-carrying woman, whose mother's feelings are suffering after the separation from the baby which has been born by her.

Contract on Your Own Risk

According to the existing practice an infertile couple and a surrogate enter into a contract before the future IVF and in effect at their own risk.
"Whatever agreements concluded, there is much debate about whose child is that. According to the law the mother is the one who gave birth to a child and genetic parents suggest that she is not. The problem is not easy to resolve in court because we are talking about the underregulated activity, particularly in terms of rights of the child,” said Alexander Saversky, chairman of the League of Patients Protection.

Russian law now regulates only the procedure for registration of children born as a result of surrogacy programs. Mandatory condition of the registration is consent of the surrogate mother.

"Prior to the registration of the child his only parent is the surrogate mother. It is her who determines his fate. She can terminate her pregnancy, if they so wish, can refuse to pass the born child to genetic parents. She is the mother with all the ensuing civil and legal consequences," told Konstantin Svitnev, director of Center for Reproductive Law and Ethics.

This legal advantage allows some legitimate surrogate mothers to manipulate the infertile couple. There are known cases when a woman refused to pass the child to the genetic parents or demanded additional rewards.

"I have heard of several cases where the surrogate mother asked for a compensation increase, starting a kind of blackmailing. I do not know if such cases came to trial or not. As a general rule, the woman was not originally going to keep the baby but used it as a tool to influence the other party, put forward some demands not covered by the contract which the other party has to perform,” said Alexander Saversky.

At the same time, the expert noted that he never heard of known cases of a contract breach by the genetic parents.

Extramarital Surrogacy

Services of surrogate mothers in modern Russia, before the new legislation on healthcare is adopted, are available only to married couples. Single parents can be denied to be entered in the child's birth certificate by registry offices.

Experts believe that the current practice is false and cite examples of court actions regarding the refusal to register children born to the single parents. In their view, the law should create a chance to surrogacy to unmarried women and men.

"The traditional paradigm of childbirth, which always and in all countries was tied to marriage, have changed. Many couples are living without legal registration of the relationship. Formal registration does not currently meet the goals that were originally set before marriage. Therefore, there is a great number of people with limited reproductive potential who can only become parents through assisted reproduction technologies including surrogacy. Naturally, they have very different marital status," said Konstantin Svitnev.

The expert believes that the current legislation implies no prohibitions for unmarried people to take advantage of the surrogacy program for procreation. As evidence, he cited examples of the domestic court practice.

"The Russian courts stood up to protect those people who wish to become parents using assisted reproduction technologies, including surrogacy, regardless of their marital status. The only exception was the court's decision in the case of Lamara Kelesheva, which I believe to be an unfortunate misunderstanding. The right of people to be parents can not be restricted based on their marital status, and can not be limited," the director of Center for Reproductive Law and Ethics pointed out.

Uncertainty to be Over?

The draft law "On healthcare of the Russian citizens" that as of May 31st passed its first reading in the Duma on the federal level is to regulate many controversial issues of reproductive technologies.

In particular, Article 51 of the future law will grant the right to use surrogacy to the couples that are not legally married and single women and men. This will put an end to a series of lawsuits and litigations.

But, according to Alexander Saversky provisions of the bill will not be enough to secure the right of genetic parents to their unborn child. "We also need changes in the civil law because it remains the subject of surrogacy contract between the parties and will not be fully regulated by administrative law. The civil law is not adapted for it which remains the main problem of surrogacy in today’s Russia," said the chairman of the League of Patients Protection.


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