The surrogate motherhood: law, morals, and policy

WORLD ACADEMIC JOURNAL OF BUSINESS & APPLIED SCIENCES-MARCH-SEPTEMBER 2013 EDITION

Journal of Politics & Law

JULY 2013 VOL.1, No,5

The surrogate motherhood: law, morals, and policy
Alexey Anisimov
Professor, Chair of Civil Law and Procedure, Volgograd Institute of Business, Russia
Accepted 30 July 2013
Abstract
The surrogate motherhood implies bearing and delivering of a child (premature delivery included) under the
contract concluded between a surrogate mother (a woman bearing a child after a donor embryo transfer) and
potential parents, whose germ cells were used for the fertilization, or a single woman, who cannot bear and
deliver a child for medical grounds.
The article focuses on the number of legal, political, moral, and ethical problems arising when implementing
surrogate motherhood. The author analyzes laws of various countries in the world as well as the court practice.
The author distinguishes the following legal problems in this sphere: ensuring rights of a married infertile couple
that concluded a contract with a surrogate mother; ensuring rights of children born by a surrogate mother; and
the necessity to clarify the content of a contract with a surrogate mother.
Within the study of the moral and ethical aspect of surrogate motherhood two issues are under consideration –
secular and religious. In the first sense, representatives of medicine considering the problem of surrogate
motherhood from a pragmatic point of view adhere to the up-to-date reproductive technologies and support them.
Lawyers also don’t see here any particular ethical problems. They suppose that the right to physical and mental
integrity involves a legal power of a citizen to independently use and dispose of his own body and freely commit
acts in accordance with his consciousness and will.
The position of religious communities on this problem is controversial. Islamic theologists admit the application
of this method provided that it is the only way to bear a child. The Russian Orthodox Church has a very negative
attitude toward the idea of surrogate motherhood. Its representatives sometimes compare surrogate motherhood
with prostitution. They claim that if the God did not give children to a married couple, it is inadmissible to
correct it with medical remedies (by means of reproductive technologies).
In conclusion the attention is drawn to the necessity of political solution of this problem by developing and
providing government financing for a special program to support those women, who got into a tight real-life
situation. It is expected that the solution of this range of existing problems will diminish the acuteness of public
discussions.
Keywords: surrogate motherhood; reproductive technologies; contract; infertility; child; human rights; medicine;
policy.
1. Introduction
At the end of the 1970s the number of infertile couples in the world amounted to 5%. At the present time,
their number has increased up to 10-15%. According to some reports, they are now up to 30%. In the meanwhile,
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even the 15% figure proves that this is the nationwide problem (Malinovskaya, E.G.,2007).
To cure infertility, modern medicine uses assisted reproductive technologies (ART), i.e. the methods of treatment,
when some certain or all stages of conception and early fetation are implemented out of the body. One of the
ART methods is surrogate motherhood based on in vitro fertilization (IVF), i.e. the conception out of the human
body and further transfer of the fertilized ovum into the uterus of another woman (a surrogate mother).
The surrogate motherhood implies bearing and delivering of a child (premature delivery included) under the
contract concluded between a surrogate mother (a woman bearing a child after a donor embryo transfer) and
potential parents, whose germ cells were used for the fertilization, or a single woman, who cannot bear and
deliver a child for medical grounds (Item 9 of Article 55 of the Law of the Russian Federation passed on
November 21, 2011 “On the fundamentals of the Russian Federation citizens’ health care”).
This method of artificial fertilization was first applied in Great Britain in 1978. The first child properly
carried by a surrogate mother was born in the USA in 1986. Shortly after the wide-scale application of this
method, it became evident that this medical problem has some serious legal, political, ethical, and other aspects.
2. The attitude of different countries in the world toward the legality of this procedure
The surrogate motherhood was prohibited by the Brussels Declaration of the World Medical Association in
1985. The draft resolution about the legislative recognition of surrogate motherhood was rejected by majority of
voters of the Social, Health and Family Affairs Committee of the Council of Europe on December 16, 2005. The
prohibition was supported in Austria, Norway, Sweden, France, some states of the USA, Italy, Switzerland, and
Germany. Its violation involves sanctions up to imprisonment. In some countries only non-profit surrogate
motherhood is permitted (Australia, Great Britain, Denmark, Spain, Canada, the Netherlands, and some states of
the USA). In Israel an agreement for surrogate motherhood is to be approved by a special committee consisting
of social workers, doctors, and religious figures. In Belgium, Greece, Ireland, and Finland the engagement of
surrogate mothers for infertility treatment is not regulated by law but exists in practice. In most states of the USA,
the Republic of South Africa, Russia, Georgia, Ukraine, Belarus, and Kazakhstan the surrogate motherhood on a
commercial basis is allowed (Besedkina, N., 2011; Vonsovich, K.I., 2013).
In those countries, where the surrogate motherhood is allowed, there are two legal approaches: 1) all the
rights for a child born by a surrogate mother belong to his/her genetic parents; 2) genetic parents can be
registered as parents of a child only with the consent of a surrogate mother (Khazova, O.A., 1996). For instance,
in the Russian Federation the second approach is used.
3. The legal aspect of surrogate motherhood
The legal aspect of the problem of surrogate motherhood in those countries, where this medical procedure
has been legalized, has the following issues:
1) ensuring rights of a married infertile couple that concluded a contract with a surrogate mother. In this regard,
the main problem is the standards of laws of some countries, according to which a surrogate mother has a right to
keep her child. And there is no way to prevent it. As a result, the rights of the married couple, who gave their
consent for an embryo implantation and concluded a contract with another woman to bear their child, will be
violated. Undoubtedly, the deceived customers will be able to seek reimbursement for their expenses and return
of an advance (and even compensation for moral damage). However, taking into account that women, who agree
to become surrogate mothers, in most cases suffer financial hardship, it will be hard to enforce the court decision.
Such an ambiguity makes it possible for a surrogate mother to abuse the law. As a vivid example, one can
consider a case that took place in the Russian city of Chita. In 2004 a married couple entered into an agreement
with a surrogate mother, who then refused to give them a born child. Moreover, she filed a lawsuit against the
child’s father to recover child support and won it. In this case, as O.Y. Lebedeva points out, “there is an obvious
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violation of rights of the man being the child’s natural father as well as legal principles of reasonableness and
justness.” (Lebedeva, O.Y., 2012).
To prevent such situations, it is necessary to legislatively enshrine that if a surrogate mother refuses to register a
married couple as parents, legal relations of surrogate motherhood cease to exist, because its main purpose was
not implemented, i.e. the couple did not get a child. It is recommended to apply the RF Family Code standards
concerning an artificial fertilization. Then a husband will get a donor status and won’t be acknowledged as a
father under these circumstances (Mitryakova, E.S., 2005).
The following case from the Russian court practice can serve as another striking example. On February 8,
2010 the married couple Ch. being genetic parents and Mrs. R. concluded a contract for surrogate motherhood,
according to which a surrogate mother after the implantation of an embryo obtained by means of in vitro
fertilization of the genetic parents’ germ cells, in case of pregnancy commits herself to bear, deliver and give a
born child to the genetic parents.
On February 19, 2010 Mrs. R.’s pregnancy was clinically confirmed. On June 15, 2010 she took her application
for participation in the surrogate motherhood program from the clinic. On November 4, 2010 she delivered a
baby. On December 14, 2010 she registered the child in the civil registry office and indicated herself as his
mother and her ex-husband as his father with his consent. According to the general jurisdiction court decision
made on March 11, 2011 that was left unchanged by the cassation court (court ruling, April 19, 2011), the
married couple Ch.’s claims toward Mrs. R. and her ex-husband in order to establish the fact of origin of the
child born by the surrogate mother, cancel the birth statement in the civil registry office, and oblige them not to
create obstacles in registering the claimants as the child’s parents were dismissed, because the surrogate mother
(defendant) hadn’t given her consent to indicate the claimants, the child’s genetic parents, in the official register
of births as parents of the child born by her. Judges of superior authorities as well as the RF Constitutional Court
didn’t find any violations of the Russian Constitution in the RF Family Code standards.
However, Judge of the RF Constitutional Court S.D. Knyazev pointed out in his special opinion that when
enshrining the exclusive prerogative of a surrogate mother in vesting genetic parents with “maternal and paternal
rights, the legislator remains indifferent to the interests of those individuals, whose germ cells were used to
fertilize a woman bearing a child. In such a way, it creates a legal framework for violating the balance of
constitutional values and diminishing the rights and legal interests not only of genetic parents, but also of a child
born as a result of application… of assisted reproductive technology.” (The decision of the RF Constitutional
Court made on May 15, 2012. No. 880-O “On the refusal to accept for consideration a claim of Mr. and Mrs. Ch.
about the violation of their constitutional rights by provisions of Item 4 Article 51 of the Russian Federation
Family Code and Item 5 Article 16 of the Federal Law “On the acts of civil status”).
The practice of other countries regarding this issue can also seem ambiguous. Thus, in 1987 in New Jersey
“the Sterns against Whitehead” case was considered. The genetic parents were claimants, while the surrogate
mother, who decided to keep the child after the birth, was a defendant. When solving the problem of parental
rights, the court took the genetic parents’ side. In such a way, the first judicial precedent was created. At the same
time, in November 1997 the first legal proceedings on surrogate motherhood in Australia finished in favor of the
surrogate mother. The court found the agreement for child-bearing to be invalid (Dikova, I., 2009).
In laws of some countries of the former USSR (Armenia, Kyrgyzia, etc.) it led to the appearance of
standards, that a surrogate mother has no right to refuse to give a born child to those individuals or married
couples who used assisted reproductive technologies and entered into an agreement in the manner prescribed by
law. Special laws of these countries include standards related to responsibility of a surrogate mother for failure to
execute a contract.
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2) ensuring rights of children born by a surrogate mother. In practice sometimes there can be situations, when a
child is delivered with some genetic defects, and his natural parents refuse to take him (or divorce during the
period of a surrogate mother’s pregnancy). Thus, in 1998 in the case In re marriage of Buzzanca (USA,
California) a married couple concluded an agreement with a surrogate mother using ova and spermatozoa of
anonymous donors. The husband filed his documents for divorce six days before the child was born. He refused
him and stated that he was not his genetic father. However, the court came to a conclusion that both parents that
entered into the agreement with the surrogate mother are his legal parents (Pestrikova, A.A., 2006). In this
respect, the development of a mechanism to protect such children’s rights is required.
3) establishing a legal essence of a contract with a surrogate mother. In Russian civil law there are contracts that
are directly indicated in the Civil Code of the Russian Federation as well as contracts that are not directly named
in the RF CC. As for the second ones, law prescribes that such contracts must not contradict the fundamentals of
civil legislation. An agreement between an infertile couple and a surrogate mother also belongs to this category
of contracts. Unlike other contracts, it has a substantial specific character. The subject matter of such a contract is
related to rendering specific services connected with child-bearing and further waiver of parental rights. The
subject matter of this contract is property (civil) relations and closely related to them non-property (family)
relations. It would be reasonable to include provisions about this contract (indicating its substantial terms, rights
and obligations of the parties) in a special chapter of the Civil Code of the Russian Federation acknowledging the
possibility of its conclusion.
There are also some other legal aspects that are not still completely solved:
- the period of time, during which a surrogate mother must make a decision whether to give or not a born child to
genetic parents, is not determined (in those countries, where laws allow her to make such a choice);
- apart from the age, having her own child or state of health, is it allowed to impose restrictions of non-medical
character (criminal record, deprivation of parental rights, hereditary diseases, alcohol abuse, etc.) on a woman
being a surrogate mother?
- what guarantees of rights of genetic parents in good faith must be stipulated by law? And what penalties should
be provided for a surrogate mother, who refused to perform a contract?
- can the parties dissolve a contract for surrogate motherhood at the stage of a woman’s pregnancy? And if it is
possible, then in what cases can they do it?
- does a surrogate mother have a right to her remuneration (or part of it) if a child was still born through no fault
of hers?
- should the secret of adoption be extended to these relations?
- is it possible to put a limit on the number of times for a surrogate mother to carry out her functions (or will it
turn into a commercial activity)?
- what form of consent of a surrogate mother’s husband to her participation in an agreement is required? What
are the consequences of his refusal? If they cause the impossibility to conclude a contract, does it violate the
surrogate mother’s rights?
In various countries in the world, which admit the possibility of surrogate motherhood, there are answers of
different extent of completeness to these questions. However, the lack of clear regulation causes the controversial
court practice.
4. The moral and ethical aspect of surrogate motherhood
This aspect of the matter has two issues – secular and religious. In the first sense, representatives of
medicine considering the problem of surrogate motherhood from a pragmatic point of view adhere to the
up-to-date reproductive technologies. As for the ethical aspect of the problem, a lot of medical workers suppose
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that surrogate motherhood does not contradict to ethics, if it “comes from medical grounds and excludes social
reasons, when a woman is lazy to bear a child or she is afraid of the very act of delivery or doesn’t want her
pregnancy to be an obstacle to her career.” (Shilova, S.D., 2012).
Representatives of legal science also don’t see here any particular ethical problems. They suppose that the right
to physical and mental integrity involves a legal power of a citizen to independently use and dispose of his own
body and freely commit acts in accordance with his consciousness and will. The use and disposal of his own
body by a person is carried out by exercising his legal powers as a proprietor. The citizen’s legal power to
independently dispose of his own body is considered as the expression of his own will. That is why when a
woman gives her consent to participate in the surrogate motherhood program possessing all the necessary
information about possible complications, she can weigh the risks and make a reasonable decision toward her
own health.” (Maleina, M.N., 1993).
Beyond any doubt, such technologies are supported by childless couples wishing to have a baby that would be
genetically “theirs”. Their only chance is to conclude a contract with a surrogate mother. Along with this,
infertile couples’ relatives quite often agree to be surrogate mothers in order to exclude the commercial aspect
condemned by society.
Opponents of this medical technology consider surrogate motherhood as a form of women’s exploitation
and an unnatural phenomenon traumatizing a mental state of a surrogate mother and violating her dignity. In their
opinion, children turn into goods in this case. (See the review of such a point of view: Reznik, E.S., 2007).
Religious communities take a significant part in the discussion. Thus, Islamic theologists admit the application of
this method provided that it is the only way to bear a child (a detailed report on this issue was made in the
document No. 6/6/57 of the theological conference that was held on March 14-20, 1990 in Jiddah (Saudi Arabia).
(Dronova, Y.A., 2007)
The Russian Orthodox Church has a very negative attitude toward the idea of surrogate motherhood. As its
representatives point out, “surrogate motherhood just as well as prostitution humiliates a human being – whether
a man or a woman.” (Smirnov D., 2011). Therefore, if the God did not give children to a married couple, it is
inadmissible to correct it with medical remedies (by means of the mentioned type of reproductive technologies).
However, such an approach cannot be acknowledged as convincing. First, the comparison of surrogate
motherhood with prostitution is not really relevant, because these are absolutely different social phenomena. The
prostitution at all times had been morally condemned by all the peoples and considered as unlawful, while an
agreement for surrogate motherhood involves nothing illegal or immoral in terms of secular morals. Second, the
ethical prohibition of phenomena and processes existing within the country and not presenting a big social
danger doesn’t often give positive results.
For instance, the attempts to pass a “dry law” and impose restrictions on alcohol sales in different countries
throughout the world didn’t give positive results anywhere. In Russia several years ago a gambling business was
completely prohibited. All the casinos and other similar establishments were closed down. To develop a
gambling industry, the special reservations far from major populated areas were allocated. It led to the
appearance of underworld gambling business and caused a high-profile corruption scandal, in which leaders of
the Prosecutor’s Office of the Moscow region were involved. As a result, instead of legal gambling business and
payments into the budget, the country got the growth of crime and corruption. Fighting against prostitution is
equally inefficient in Russia and many other countries of the former USSR. The existence of legal components of
offences (crimes) in criminal and administrative codes in no way helps to eliminate it. It only criminalizes the
problem. A much more sober approach was implemented by the authorities of Amsterdam that legalized this
oldest profession and put its representatives under medical and tax control of the state.
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The situation with the prohibition of surrogate motherhood is just the same. The attempts to condemn and
prohibit this type of social relations can only cause their criminalization within the corresponding country or the
appearance of “reproductive tourism” The “reproductive tourism” in scientific literature implies visiting another
.
country that doesn’t prohibit but regulates these social relations by rule of law. (Rusanova, N.E., 2009). It seems
that the wisest decision was made by legislators of those countries, which regulated actual in-demand relations of
surrogate motherhood, put them under state control, and provided a legal framework for them.
The existing legal or moral prohibition to use reproductive technologies by the same-sex couples creates one
more problem in the context of human rights. In the former Soviet Union this issue is not even under discussion,
while in Europe the attitude toward it is rather negative.
5. The political aspect of surrogate motherhood
The political aspect of this problem has two issues:
1) The state policy can be directed at creating legal conditions for surrogate motherhood, can ignore this problem
or create various obstacles. When the state power has a positive attitude toward surrogate motherhood, the
question about the necessity to provide conditions to support women, who got into a tight financial real-life
situation, inevitably arises. It is clear that in most cases a woman takes such a step because of money. But if there
were consulting centers and governmental programs to help these women, there would be less surrogate mothers
for financial reasons. The creation of appropriate conditions for a woman to take reasonable and completely
voluntary steps to enter into an agreement for surrogate motherhood would diminish the acuteness of discussion
about morals and ethics. The foundation of such centers could promote fighting against prostitution. In Russia
and some other countries of the former USSR there is no such a policy even at the level of plans and concepts. In
more developed European countries such a deliberate state policy is just a matter of time.
2) in Russia the possibility to create and register political parties appeared only in 2012. There aren’t so many
radically different political forces expressing the interests of various groups of society and distinguished by
propagandized values. It seems that in the near future there will be a political party standing up for conservative
values and proclaiming a fight against all the visible social follies. The surrogate motherhood will probably be
included in their number. If this party wins the election, it will very likely lead to changes in state policy in order
to prohibit such reproductive technologies as surrogate motherhood.
3) in many European states there are objective demographic problems related to the birth rate decrease and
impossibility to increase it by paying allowances for born children. In this case the legalization of the mentioned
new reproductive technologies at the governmental level can diminish the acuteness of the problem.
6. Conclusion
The theory and practice of surrogate motherhood prove that various representatives of society are uncertain
about this reproductive technology. Regardless of the objectively existing moral and ethical problems, this
medical technology gains momentum each year. In the near future society will inevitably have to accept it.
However, it is important to prevent indifference toward the evaluation of those reasons which make women serve
as donors. In all the countries in the world that legalized surrogate motherhood appropriate measures should be
taken to support women involved in a tight financial real-life situation. It must be done in order to diminish the
social condemnation of this reproductive technology. In those countries, where its application is prohibited, the
understanding of the necessity to develop a special state policy in the sphere of regulation of reproductive
technologies is yet to come.
The analysis of laws of the countries which legalized surrogate motherhood proves that there is a different
attitude toward the rights of married couples and donor women. The choice of a certain model of legal status of
subjects of a contract for surrogate motherhood mainly depends on the national specific character of a state.
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6. Bibliography
[1] Malinovskaya E.G. Legal regulation of surrogate motherhood in the Russian Federation and the Republic of
Belarus, Family and housing law. 2, 29-31, 2007.
[2] Besedkina N. About the surrogate motherhood, Law and life. 7-8, 2011.
[3] Vonsovich K.I. Assisted reproductive technologies as a method to increase the birth rate: legal aspects,
Electronic journal “Vestnik of Novosibirsk State Pedagogical University”. 1, 2013. // www.vestnik.nspu.ru
[4] Khazova O.A. The RF Family Code Comment, Moscow: BEK, 1996.
[5] Lebedeva O.Y. Some problems of legal regulation of assisted reproduction in the context of the new Federal
Law “On the fundamentals of the Russian Federation citizens’ health care”, Medical law, 2, 16-20, 2012.
[6] Mitryakova E.S. Contestation of parental rights when applying the method of surrogate motherhood, Family
and housing law, 2, 2-3, 2005.
[7] Dikova I. Establishing paternity and maternity when applying assisted reproductive technologies, Law and
life. 2, 2009.
[8] Pestrikova A.A. Problems of an agreement for surrogate motherhood, Civil law, 2, 14-17, 2006.
[9] Shilova S.D. New medical technologies in reproduction and their legislative support, Protection of maternity
and childhood, 1, 8-10, 2012.
[10] Maleina M.N. The right of an individual to bodily (physical) integrity, State and law. 4, 97-106, 1993.
[11] Reznik E.S. The right to life: civil-legal aspects: Candidate’s thesis in law, Ekaterinburg, 2007.
[12] Dronova Y.A. What one should know about surrogate motherhood, Moscow, 2007.
[13] Smirnov D. Surrogacy is akin to prostitution
http://www.pravmir.ru/protoierej-dimitrij-smirnov-surrogatnoe-materinstvo-srodni-prostitucii/
[14] Rusanova N.E. The “reproductive tourism” in Russia: possibilities and problems, The Service Plus scientific
journal, 3, 83-86, 2009.

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