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an article by Rosjurconsulting Director General Konstantin Svitnev, legal expert with the European Society for Human Reproduction and Embryology

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17.12.2018

Franco Antonio Zenna on the international problems of surrogacy

Franco Antonio Zenna, founder of the law firm Intraius in Barcelona, ??is well-known outside of Spain and has given interviews on various television programs and print media on various aspects of surrogacy. Recently, Mr. Zenna gave an interview to the leading Swiss Newspaper “Tages Anzeiger” and shared his thoughts on the problem of surrogacy in the world, on the positive dynamics in the changes of public opinion on this phenomenon, on his experience of legal support of this process in various countries. Surrogacy often raises many questions concerning the moral and ethical aspect of the question, but the strict, clear and professional answers of the lawyer dispel any doubts.

Surrogacy is forbidden in almost all countries in the EU, particularly in Switzerland. But there are rare territories whose jurisdiction in this sense is extremely liberal. Such a territory, for example, can certainly be called  a state of California in the US. There, surrogacy is allowed without any age or gender restriction for the hopeful parents. In addition, neither parent has to contribute any genetic material. In essence, a couple can use an anonymous sperm donation from a man and an anonymous ovules donation from a woman and allowing the expectant mother to carry the embryo and register the child as their own. Canada also has some liberal provinces.

In Europe surrogacy is allowed for example in Greece and Portugal, but with restrictions. In Greece, only heterosexual couples are allowed to, although mothers cannot be over 50 years of age and have to prove that they cannot have children for health reasons. In the Netherlands and Great Britain, surrogacy is only permitted if the woman carrying the child has no financial interest. Russia is also relatively liberal, although there the pregnant woman can decide to keep the child after giving birth. As for UkraineIt, although there it’s only consented to married heterosexual couples and at least one of the parents has to contribute genetic material. On top of that, the mother to be must  prove that she can’t get pregnant due to a medical condition or because pregnancy would pose a serious risk to her health.

In Spain the ban on surrogacy should be understood as not having any legal standing, that is to say contracts lack any legal validity rather than being illegal. Providing legal counsel to a couple that wants to make their dreams come true by having a child through surrogate parenthood is totally legal – even in countries in which simply putting couples in contact with potential surrogate mothers is punishable. An attorney advises and represents criminals without being criminals themselves.

Arguing that the prohibition of surrogate motherhood in most countries has ethical, moral and social motives, it should first be borne in mind that this is about a method of reproduction in which all three parties are in agreement and doing so on a voluntary basis, ergo the intended parents and the gestational surrogate. The procedure is regulated and overseen legally and results in the creation of a new life. The parents could be married, for example, fifteen years and have tried to have children using every medical procedure possible. In some cases, the idea of having a child becomes an obsession and ends up causing a strain on the relationship. Surrogate motherhood is therefore a great help for all people involved.

Society’s ethical attitude towards such issues changes constantly. Up until recently, homosexual marriage was unthinkable and nowadays in most places it’s the most normal thing in the world. Ovule donation is still banned in Switzerland but in Spain it’s been allowed for a while now. What’s missing for surrogate motherhood is the legal recognition that a mother can be just that, even if another woman has given birth to her child. It’s only a matter of time that the legislation adapts itself around the ever changing medical and social circumstances.

Surrogacy is not exploitation because the woman is doing a job for which she is being paid and that isn’t detrimental to her in any way. Bodily exploitation is when someone sells an organ because they need money, someone who signs up to medical trials or when a woman is forced into prostitution. From my point of view, using a woman’s body to carry a child seems like something natural, if and when she is fully aware of what she’s doing and she does it of her own accord. Besides, there are many unpleasant jobs that people only do for the money. Being a surrogate mother is not unpleasant.

In both developed and underdeveloped societies worldwide there are rich and poor people. The rich pay the poor for jobs they either can’t or don’t want to do. If this is the reason people want to ban surrogate motherhood then they should also ban many other jobs. From my perspective, all these so-called moral and ethical qualms regarding the surrogate mother seem highly hypocritical.

If the surrogate changes her mind after giving birth and decides to keep the child, in the majority of countries this isn’t possible. Before or during the pregnancy, a contract is signed that irrevocably states who the parents of the child are. One of the few countries where this only happens after childbirth is Russia. There, the surrogate can change her mind. So far there haven’t been any cases like this, which isn’t unusual.

In countries where this business is highly regulated and is taken seriously, there’s a clear criterion when the time comes to pick the surrogate.  She must already have children of her own; she must be a stable person, be both physically and mentally healthy and must come from a good social background. Obviously, the surrogate does it for financial reasons. If she then decides she wants to keep the baby, her finances will be shattered and she will take the risk to face legal consequences.

What happens if the surrogate dies during labour? It would be a tragedy, but it can also happen during normal childbirths. As a general rule, in the contract between the future parents and the surrogate mother, a compensation to her family is agreed. Luckily, I’ve never experienced a situation like this.

The cost of surrogacy for a couple looking to do it depends in what country the surrogacy takes place and which country the child is born in. In the United States it costs between 100 000 and 140 000 USD. In Canada it’s between 70.000 and 100.000 dollar, in Russia and Greece perhaps slightly less. In Ukraine it’s even cheaper. Then there are countries such as India or Georgia where surrogacy is financially more than affordable, although it is less regulated and the conditions of the clinics are quite unsustainable.

Based on Tages Anzeiger

Information service Rosjurconsulting


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