State Regulation of Surrogate Motherhood: Liberal or Restrictive Approach

1. State Regulation of Surrogate Motherhood: Liberal or Restrictive Approach Full Professor Dr. Gordana Kovaček-Stanić Faculty of Law, University of Novi Sad, Serbia

2. Family jurisprudence • Surrogate motherhood, as one of the procedures of bio-medically assisted reproductive technologies, provokes different questions which has to be answered by family legislation of a particular countries, but also, even before by family jurisprudence. • One of them is issue of a biological origin of a person • The basic interest of an individual to know his/hers genetic origin is psychological need for identity • Medical interest, as well

3. The right to know one’s biological origin • The right to know one’s biological origin is considered as a human right and a personal right. • Personal rights might be subject to limitations. In the jurisprudence of civil law, one speaks of a procedure for balancing values and interests, so that the legislator in a number of situations limits the exercise and disposal of personal values, estimating that the realization of some other values and interests is more important then the realization of the particular personal value.

4. The right to know one’s biological origin • The procedure of balancing values and interests has an exceptional importance when the right to know one’s biological origin is concerned, as this right generally concerns the rights of other people, and in particular the rights of the genetic, gestational and legal (social) parent. • The genetic parent(gestational mother) has interest to privacy and non-disclosure of information. The sociological parents, as a well-functioning family, have an interest to protection of the family’s stability and integrity.

5. The right to know one’s biological origin • The legal impossibility to find out one's origin, as a consequence of the principle of anonymity, is an impossibility of primarily legal nature. It can be factual as well, conditioned by the inexistence of data about the donorship of the genetic material. The factual inability is only the consequence of the legal one, because data can be saved by keeping registers. • Concerning the data showing which woman has given birth to the child are difficult to hide because the commissioning couple and the surrogate mother are acquainted, they sign a agreement, and the commissioning couple then participates in the process of pregnancy and child birth.

6. The right to know one’s biological origin • At this moment, a conflict is evident between the right to find out one's origin and other rights, the right to privacy of the biological parent or the surrogate mother, and the security of a social family. The approach to this problem primarily consists of evaluating the significance of the conflicting rights, whether the solution of wider or narrower possibilities to realise the right to know one's origin depends on whether the significance of one or the other right will prevail.

7. The right to know one’s biological origin • On the other hand, one might ask a question if it is necessary that the right of the child to know his/her genetic origin and the right to privacy and family stability be in conflict. • Another possible approach would be to attempt to eliminate the existing conflict of rights. • This solution assumes a radical change of the legal, social and individual view to parenthood.

8. The right to know one’s biological origin • It would be necessary to accept and aprove of the fact that the child may have more than two parents with different roles (biological, i.e. genetical parents, the gestational mother, and the social or legal parents). • This theoretical solution is the closest to the real circumstences. Whether family law will go in this direction or not is left for the future to decide.

9. Forms of surrogate motherhood • A surrogate mother gives birth to a child who is genetically hers (partial, genetic s.) • A surrogate mother only carries and delivers the child, the child genetically belongs to the couple who wants the child, either the egg cell of the third woman (donor) is fertilised or the embryo is donated (full, total gestational s.)

10. Forms of surrogate motherhood • Family surrogacy (between relatives) • Friend surrogacy • Surrogacy in which there is no prior relationship betweeen the surrogate mother and the woman who wants the child.

11. Family surrogacy • Mother for her daughter (becoming at the same time the mother and grandmother) • Dughter for her mother and stepfather (becoming the mother and half-sister of the child, and her children half-brothers and half-uncles of the child) • Sister for her sister are relatively frequent (becoming the mother and aunt) • Sister gave birth for her homosexual brother and his partner by fertilisation of her egg cell with the sperm of the partner (becoming the mother and aunt)

12. Family surrogacy • The positive sides: no complications concerning the concession of the child;family relation assumes that surrogation came about exclusively for altruistic reasons • Negative sides: a confusion between relatives, double relations. This fact can have different significance in different social circumstances, depending on how much a society gives importance to family relations. • A danger that the woman who cannot give birth to a child asks a relative to be sm, and if a relative refuses or consents against her wishes, the relatioship between them may be disrupted.

13. Friend surrogacy • Friend surrogacy: Similar positive sides as the sur. between relatives, but it does not have the essential negative side related to the confusion of family relations. • Negative side is connected to the different understanding of the acceptability of surrogate motherhood as a manner of childbirth which can lead to disruption in the relationship between the parties connected by friendly relations.

14. Surrogacy- no prior relationship • Positive side is that there is no disruption in family or frindship relations • Negative side is that it includes the commercial element • In the countries in which surrogacy is allowed and regulated, only a sum of money given that is considered reasonable is generally accepted, such as medical expenses, pregnancy expenses, and lost income • Commercialization in the sense of buying the child is forbidden

15. Surrogacy- no prior relationship • Negative side the surrogate mother decides after childbirth to keep the child • The opposite situation can happen as well, that neither the surrogate mother nor the couple who commissioned the child want to raise the child, because it does not fulfill their wishes. A child with defects can be born, or twins are born, and the couple wants only one child, sometimes the child is of inadequate sex – legal proceedings

16. Comparative law • Legislations that permit surrogate motherhood: Greece, the United Kingdom, Israel, Ukraine, Georgia, Romania (in draft). • Some countries, like the Netherlands and Russia, do not have legislations about surrogate motherhood, but this practice is considered permissible.

17. Legislations which not permit surrogate motherhood • In a certain number of European countries surrogate motherhood is not permitted (Sweden, Norway) and in some it is expressly prohibited (Germany, Austria, France, Italy, Spain, Switzerland, Slovenia).

18. Serbian legislation • Serbian Constitution: everyone has the right to freely make decisions about childbirth. • Nowdays legislation of Serbia does not permit surrogate motherhood. Relevant acts are the Family Act of Serbia 2005, and the Act of Treatment of Infertility with Bio-Medically Assisted Procedures 2009 • Draft Civil Code:sm would be permitted - alternative solutions

19. Serbian legislation • Considering that in Serbia surrogate motherhood has not been permitted up until now, and the question remains how it would be received if permitted, we think the law should start from more restrictive solutions. • Permit only full surrogacy • The genetic material should originate from at least one of the persons who want the child, and perhaps it would be simplest to start with surrogate motherhood only if the genetic material originates from both persons. • Not allow posthumous fertilisation combined with sm. • Not allow surrogacy between relatives, considering the social and legal importance of family relations in Serbia.

20. Serbian legislation • At this moment, only married or heterosexual extramarital partners should be considered as subjects of surrogate motherhood, since in Serbia there is no regulation for same-sex partnership, and it seems clear that the rights of homosexual partners should not start from reproductive rights. • A woman without a permanent partner should only under special conditions, and only out of medical reasons, with the permission of the court, have access to surrogate motherhood.

21. Serbian legislation • The important condition: residency of the parties. • The condition the surrogate mother has already had children. • Mandatory psycho-social counseling

22. Serbian legislation • In positive Serbian law, the child does not have the right to know his/her origins according to the Act of Treatment of Infertility with Bio-Medically Assisted Procedures. The Draft of the Civil Code provides a more contemporary solution, according to which a child would have this right.

23. Thank you for the attention