Legal Aspects of Surrogate Motherhood under Russian Law
With the adoption of the new Family Code in 1995, the legislator allowed a practice of surrogacy, making albeit casual mention about it in arts 51-52 (on registration of parenthood and on its eventual contestation). According to these provisions, the commissioning parents can be registered as the legal parents of a child only if the surrogate mother consents to it. The Civil Status Act (art. 16) contains further details in this regard. Protection of the Health of Citizens Act was the first Act dealing with the issue of artificial insemination in art. 35.
4.1. Entering into Surrogacy Arrangements: the Right to a Child
Neither the Acts referred to above, nor the Civil Code mention the surrogacy arrangement or contains its definition. This choice of non-definition is illustrative and reflects the difficulty of reaching a consensus; it also implies the wish of a legislator to postpone the achievement of such a consensus till a certain time in the future.
There are several parties involved in a surrogacy contract.
Commissioning couple: The State seeks to evaluate their suitability, and provides for certain requirements which must be met. These requirements are minimal and concern the marital status of a commissioning mother and the impossibility for her to become a mother. According to the Family Code (art. 51, para. 4) the commissioning parents must be married. Besides, there must be a strong medical reason dictating the resort to surrogacy, so the commissioning mother either is unable to become pregnant or to carry a pregnancy to term.
These provisions are not sufficient, and the medical centers sometimes have to look for any pretexts to reject the evidently abusive applications.
Surrogate mother: She must be aged 20-35, be physically and mentally healthy, and have at least one healthy child.
Child: Its position is not clear. Although the Family Code proclaims that ‘the rights and interests of minors are given priority’ (art. 1 para. 3), it seems that the values predominating in society allow to say that there is a right to a child. The Health Act, f.e. declares artificial procreation as a right for any woman of childbearing age (art. 35 para. 1).
Surrogacy Contract: Contract Law and Family Law Implications
Just as in the context of marriage agreements, introduced for the first time by the new Family Code, in the context of surrogacy contracts the existence of the Family Code and Civ. С casts into sharp relief the question of correlation between them. The Family Code in art. 4 allows the application of civil legislation to the matters fallen under the scope of family law, if two cumulative conditions are met:
- the particular matter is not covered by the family law legislation and
- the eventual application of civil legislation will not be contrary to the essence and spirit of family relations.
Regarding surrogacy contracts, it is quite clear that the first condition is met since the Family Code itself makes only a casual mention of surrogacy. On the other hand, the second condition gives rise to a difficult question: whether the eventual application of civil legislation to the surrogate contracts will undermine the internal consistency of family relationships? The question is difficult to deal with, as it stems from a range of concerns about the family and parenthood. But it seems that there is clear tendency towards application of civil law to the surrogate contracts.
Family Law Implications
The issues related to the implantation of an embryo, the pregnancy, delivery and the consent to hand over a child are regulated by the family law.
Contract Law Implications
Although the Civ. C. does not explicitly mention surrogacy contract, it allows persons to conclude an innominate cojntract that is a contract not specially designated under the Code (art. 421 para. 2). The principle that what is not forbidden is allowed is applied in such cases. As there are no mandatory rules concerning the terms of a surrogate contract, the parties are free to include the terms as they see fit. The second option is to draw an analogy between a surrogacy contract and a contract of the rendering a service (chapter 39 Civ. C). Hence by obliging herself to carry and give birth to a child in order to hand it over to the commissioning couple, the surrogate undertakes to perform a service.
There is a clear discrepancy between the current situation and policy considerations which motivated the legislator to allow surrogacy. The mere look at either the internet sites concerning surrogacy in Russia or the legal literature on the topic, clearly shows that surrogacy contracts are entered against a fee received by the surrogate mother and intermediaries.
However it is not clear whether the court would ratify the payment of such a fee, if it adjudicates a dispute between the parties.