LEGAL REGULATION OF ART IN THE C.I.S. AND CROSS-BORDER REPRODUCTIVE CARE. Konstantin N. Svitnev

1. LEGAL REGULATION OF ART IN THE C.I.S. AND CROSS-BORDER REPRODUCTIVE CARE.Konstantin N. Svitnev Rosjurconsulting, Reproductive Law & Ethics Research Center, Moscow, Russia P-068 Abstract Cross-border reproductive care Results The comparative study of legislation of 11 C.I.S. republics shows that new independent states that emerged on the map after the collapse of the USSR share common “soviet” history, but nevertheless reveal considerable differences in approach towards legal regulation of assisted reproductive technologies (ART). The legislation varies widely from one country to another, leaving sometimes blank areas (i.e. legal status of embryo, sex selection, gametes ownership issue, surrogacy for single intended parents, post-mortem reproduction), avoiding these potentially conflictive issues. Unclear legal situation, differences in legal regulation of ART lead to cross-border reproductive travel. 5 countries (Armenia, Kazakhstan, Kirgizia, Moldova, Tajikistan) view assisted reproduction through a wider context of reproductive rights and reproductive health. Special legislation regulating most, but not all aspects of ART is in place. In 5 countries (Azerbaijan, Belarus, Russian Federation, Turkmenistan, Ukraine) there are no any specific laws on ART. Assisted reproduction to some extent is regulated by various laws – i.e. Family Code, Health law and directives of Health ministries, leaving some “grey” areas. In Turkmenistan for instance egg/sperm/embryo donation, as well as genetic material storage are not covered by law, surrogacy is considered human trafficking. One country (Uzbekistan) still lacks any legislation concerning ART, it’s not mentioned in the law at all. There are no specific regulating authorities, registries for ART procedures – if any – are voluntary. In spite of lack of a “special” law on ART the country with most liberal related law-applying practice is Russia, where courts follow the rule “what’s not prohibited, is permitted”, making it possible to become parents through surrogacy even for unmarried couples and single men and women. Russia is working on a special bill to make its liberal legislation on ART more clear. Controversies There are controversies in national legislation and in law applying practice. Surrogacy is perfectly legal in Azerbaijan according to the Family Code, but according to the law against human trafficking the same surrogacy is considered exploitation and so is against the law. To avoid any further scandals when foreign citizens who become parents through surrogacy in Ukraine and were unable to leave the country with their newborn children, a bill stipulating a total ban on medically assisted reproduction techniques for all foreigners was sent to the Parliament of Ukraine (Ukraine, 2011). If passed by the Parliament, access to IVF would be permitted only to Ukrainian citizens over 21 years old with proven infertility. People who are not infertile but nevertheless wish to use assisted reproduction techniques to become parents would be denied access to the IVF clinics. Luckily the bill was turned down by a profile committee as contradicting national legislation. Armenia is the only C.I.S. country were traditional surrogacy programs with surrogate’s oocytes are explicitly allowed, though in this case the surrogate might keep the child (Armenia, 2002). The law also stipulates that medically assisted reproduction including surrogacy is an option for any intended parent regardless of marital status, including single intended parents of both genders. There is no other C.I.S. country that would explicitly allow surrogacy for single intended parents, though it is not explicitly forbidden either (except Turkmenistan). Some IVF clinics nevertheless reject single patients applying for surrogacy programs. So everything depends on existing practice. Russia remains a country where reproductive programs for single intended parents are successfully implemented. Due to the absence of direct norms children born through surrogacy to heterosexual couples who are not officially married or single intended parents are registered in accordance to analogy of jus (Svitnev, 2010). On 5 August 2009, a St Petersburg court obliged the State Registration Authority to register a 35-year-old single woman as the mother of her “surrogate” son. On 4 August 2010, a Moscow court ruled that a single man who applied for gestational surrogacy (using donor eggs) could be registered as the only parent of his son, becoming the first man in Russia to defend his right to become a father through a court procedure. The surrogate mother’s name was not listed on the birth certificate. After that a few more identical decisions concerning single men who became fathers through surrogacy were adopted by different courts in Russia listing men as the only parents of their “surrogate” children and confirming that prospective single parents, regardless of their sex or sexual orientation, can exercise their right to parenthood through surrogacy in Russia. Unclear legal situation, differences in legal regulation of ART lead to cross-border reproductive travel. Patients have to cross national borders trying to get access to techniques prohibited or not available for them in their native countries because of their sex, marital status or age. So, intended parents from the countries where surrogacy is not regulated (e.g. Moldova, Tajikistan, Uzbekistan) or is against the law (Turkmenistan) go to the states where it’s legal to become parents through surrogacy, preferring countries where a gestational surrogate can’t legally keep the child she delivered (Armenia, Belarus, Kazakhstan, Kirgizia, Ukraine). Reproductive tourism exists even between countries with similar legislation. Some Russian couples head for Ukraine to arrange for their surrogacy program as a Ukrainian surrogate by law can’t keep the child. At the same time Ukrainian couples who need surrogacy in combination with embryo donation, couples who are not officially married and single Ukrainians of both sexes who want to become parents through surrogacy come to Russia as genetic link, marital status and sex are irrelevant when arranging a surrogacy program there. Intended parents who would like to save on egg donation when arranging a surrogacy program might go to Armenia where it’s explicitly allowed to use surrogate’s eggs, in spite of the fact that she might keep the resulting child. Conclusions One of the main principles of modern bioethics is that interests and welfare of the individual should have priority over the sole interest of science or society (Universal Declaration on Bioethics and Human Rights, 2005).” Refusing to allow people with limited reproductive possibilities to become parents if they can have children through assisted reproductive ttechniques incl. surrogacy means discrimination. Depriving reproductively disabled people of existing reproductive technologies we exclude them from reproductive process, washing out their unique genes from the gene pool of humanity. There is a clear need for harmonization of legislation and equal standards, as all patients willing to become parents through ART should have equal access to required techniques at home. The patients should have at least access to information as for possibilities existing in neighboring countries, as well as legal peculiarities and disadvantages in the country where their reproductive program might take place. Legislators should do their best to save their compatriots travelling abroad from potential dangers and to avoid any harm for the children born through ART. References Armenia 2002. Art. 15-5 of the Law of the Republic of Armenia «On reproductive health and reproductive rights of a human” №474 of 26.12.2002 Svitnev K. Legal regulation of assisted reproduction treatment in Russia. Reprod BioMed Online. 2010;20:892–894. Ukraine 2011. On Amendments to Legal Acts of Ukraine Concerning Limitations on Use of Assisted Reproduction Technologies. Draft № 8282, registered on March 23, 2011. http://gska2.rada.gov.ua:7777/pls/zweb_n/webproc4_1?id=&pf3511=39973. Accessed March 2011. Universal Declaration on Bioethics and Human Rights, adopted by UNESCO's General Conference on 19 October 2005, art. 3.2. http://portal.unesco.org/en/ev.php-URL_ID=31058&URL_DO=DO_TOPIC&URL_SECTION=201.html. Accessed April 2011. www.jurconsult.ru e-mail: svitnev@jurconsult.ru Printed by