Qualified help in the preparation of necessary documents, contracts with medical institutions and surrogate mother.
Making acquainted with laws in force (rights and obligations of genetic parents).
Consulting about registration of parental rights in the Civil Registry Office in Ukraine and in your country.
The relationship between the surrogate mother and the Customer shall be governed by the Contract to be entered into in accordance with the following legal documents:
A)Article 1 of the Civil Code of Ukraine, which stipulates that the civil legislation shall regulate personal non-property and property relations (civil relations) based on the legal equality, free will, property independence of the parties thereto.
Article 6 of the Civil Code of Ukraine, which stipulates the following:
The Parties shall be entitled to conclude a contract that is not provided for by the civil legislation acts but complies with the general principles of the civil legislation.
The Parties shall be entitled to agree upon their relationship, which is not provided for by the civil legislation acts, in the contract foreseen by the civil legislation acts.
The Parties may depart in their contract from the provisions of the civil legislation acts and establish their relationship at their own discretion.
The Parties to the Contract may not depart from the provisions of the civil legislation acts, if such requirement is expressly stated therein, as well as in those cases where the binding force of the provisions of the civil legislation acts for the Parties proceeds from their contents or basic relationship between the Parties.
The provisions of the first, second and third part of this article shall also be applicable to unilateral powers.
Article 627of the Civil Code of Ukraine, which stipulates freedom of the contract
Therefore, the conclusion of the contract under which one Party shall undertake to render the other Party the services for the carrying of a child to be conceived by the in vitro fertilization method, while the other Party shall undertake to accept the above services and effect payment for them complies in full with the requirements of the law.
Article 628of the Civil Code of Ukraine, which stipulates the contents of the contract
Article 629of the Civil Code of Ukraine, which stipulates the binding power of the contract
Article 639of the Civil Code of Ukraine, which stipulates the form of the contract
B)Article 123 of the Family Code of Ukraine regulates the matters concerned with the origination of a child that was conceived with the use of reproductive processes. Thus, part 2 of this article defines the spouses who conceived the child with the help of reproductive processes as the parents of the child.
In addition, subparagraph 2.2 of paragraph 2 of Order of the Ministry of Justice of Ukraine No. 140/5, dated May 18, 2003 establishes the procedure of documentation of parental rights of spouses on the grounds of the notarized consent for such action to be taken, which is to be given by the woman by whom the child was born.
Therefore, the above legal rules of the active laws of Ukraine define the spouses who act as the customers under the contract which was entered into between them and the surrogate mother as the parents of the child that was conceived by the method of reproductive processes.
The relationship between the surrogate mother, the customer and the medical institution shall be regulated by the contract, the subject of which involves the use of the in vitro fertilization procedure.
In this case, the Parties shall be guided by the legal regulations of the active legislation of Ukraine, which are set forth in p. A) above, as well as by the following documents:
Article 4of Law of Ukraine "Fundamentals of Health Legislation of Ukraine", according to which one of the basic health protection principles are as follows:
diversified nature of health economy and financing thereof, combination of state guarantees with de-monopolization, encouragement of entrepreneurship and competition;
decentralization of the state control, development of self-government of organizations and independence of personnel employed in the sphere of health protection on the legal and contractual bases.
Article 48of Law of Ukraine "Fundamentals of Health Legislation of Ukraine", providing for the use of artificial impregnation and implantation of embryos, which is carried out according to the terms and procedure established by the Ministry of Health of Ukraine, on the grounds of medical indications of an adult woman with whom any such action is to be taken, provided the written consent of the spouses is available, the donor's anonymity is maintained, and medical secrecy is kept.
Article 38of Law of Ukraine "Fundamentals of Health Legislation of Ukraine" defines the freedom of choice of a physician and medical institution by the patient.
Article 79 of Law of Ukraine "Fundamentals of Health Legislation of Ukraine", according to which health organizations, citizens and their associations shall be entitled, in accordance with the active legislation, to enter into agreements (contracts) independently with foreign legal entities and natural persons for any forms of cooperation, participate in activities carried out by appropriate international organizations, carry on foreign economic business.
Hence, the above-mentioned legal norms of the active legislation of Ukraine regulate the matters of potential establishment of contractual relationship between medical institutions and different natural persons and legal entities for the purpose of provision of main services, including in vitro fertilization services.
Order No. 24, dated February 04, 1997 of the Ministry of Health of Ukraine defines the terms and procedure of artificial impregnation services.
The above document contains the following provisions:
the artificial impregnation procedure shall be carried out in qualified medical institutions (p. 1.2);
the procedure is carried out on the grounds of the relevant application to be made by a woman having legal capacity, with whom such procedure shall be carried out, following documentation of the application made by the spouses and their medical examination (p. 1.3);
the age of the woman to be artificially impregnated shall not exceed 40 years.
In this case, neither article 48 of Law of Ukraine "Fundamentals of Health Legislation of Ukraine", nor provisions of Order No. 24 dated February 04, 1997 of the Ministry of Health of Ukraine contain references to the condition according to which the woman to be artificially impregnated on the grounds of her application must be one of the spouses who gave their consent with regard to this procedure and undertook obligations of parents in respect of a child.
Therefore, proceeding from the norms of the active legislation of Ukraine, it is quite evident that there exist no restrictions concerned with provision of in vitro fertilization services to medical institutions with the exception of personal medical contraindications with regard to this procedure.
The mention should also be made of the following:
The Convention on Protection of Human Rights and Dignity with Regard to Application of Biology and Medicine: the Convention on Human Rights and Biomedicine of April 4, 1997 provides for the following:
The interests and well-being of an individual shall prevail over the exclusive interests of the whole society or science (article 2) Considering medical needs and available resources, the parties shall take appropriate action for the purpose of provision of equal access to the proper-quality medical assistance within the bounds of their jurisdiction (article 3).
The provision regarding in vitro fertilization and transplantation of embryos, which was adopted at the 39th World Medical Assembly (WMA) (Madrid, Spain, October, 1987) says as follows:
In vitro fertilization and embryo transplantation represent the medical method used in many parts of the world for sterility treatment purposes. This method can serve useful means both for separate patients and the whole society for treatment of infertility and, besides, can contribute to disappearance of genetic diseases and stimulation of fundamental research in the field of human reproduction and contraception.
From the ethical and scientific viewpoints the medical assistance rendered in the sphere of human reproduction is justified in all cases of sterility, which is not subject to any classic drug or surgical therapy.
In all such cases medical practitioners can take action only with the complete and well-informed consent of donors and recipients. First and foremost, the physicians must act in the interests of a child who will be born as a result of the above-mentioned procedure.
With regard to the artificial impregnation procedure WMA welcomes and supports the method of in vitro fertilization. Further, the mention is made in the provision of potential ethical and legal conflicts concerned with the use of donor ovum, semen and embryos. However, basically, the use of donor matter in the process of in vitro fertilization is not prohibited and, instead, is supported by the provision. In this case, the necessity to observe the norms of the national law in the course of the procedure is taken into account.
Besides, the provision does not deny the potential use of the so called substituted parenthood, according to which a woman agrees to be artificially impregnated for the purpose of conception of a child that would be subsequently adopted by a husband or his wife.
WMA disapproves procedures connected with in vitro fertilization on the pay basis.
Therefore, the relationship between customers and surrogate mothers are not basically disapproved by WMA. And if a customer bears expenses connected with the maintenance of a surrogate mother during the pregnancy period, thus providing the most favorable conditions for fetus development, any such interpretation of expenses conforms in full to the fundamental principles of the provision.
Important Legal Information about surrogate motherhood in UK
Surrogacy is legal in the United Kingdom. There are however strict legal guidelines which must be followed. Under the terms of the Surrogacy Arrangements Act 1985, it is a criminal offence to advertise that you are willing to enter into a surrogacy arrangement.
Surrogacy UK does NOT initiate, negotiate, commission or facilitate surrogacy arrangements.
Most couples and surrogate do not use the services of a solicitor when they are going through a surrogacy arrangement. Some IVF clinics insist they employ a solicitor to take them through the law regarding surrogacy.
In Spain surrogate mothers do not suffer major emotional problems during or after their pregnancy, or when they hand over the baby to the commissioning parents, researchers told the annual conference of the European Society of Human Reproduction and Embryology today.
The latest results from a long-running study into surrogacy by researchers from City University, UK, led by Professor Susan Golombok, found that, contrary to anecdotal reports in the media, none of the surrogate mothers interviewed for the study reported any misgivings about handing over the baby. Any emotional problems that the women did experience after the birth appeared to lessen with time. The majority of surrogate mothers enjoyed good relations with their commissioning couples and did not suffer adverse reactions from their own friends and family.
In the largest and most representative study of surrogate mothers so far, the researchers interviewed many women approximately one year after they had given birth. The women gave information on their reasons for deciding to become a surrogate, the reaction of others to this decision, their relationships with the commissioning couple before and during the pregnancy, their experiences of handing over the baby, and how they felt towards the child.
The majority of the women (31 or 91%) said their main reason for being a surrogate was "to help a childless couple". Five (15%) gave "enjoyment of pregnancy" as a reason, two (6%) said they were doing it for "self-fulfilment" and only one said she was doing it for money.
Before the pregnancy all the mothers said they had a good relationship with the commissioning couple. At the start of the pregnancy, one woman reported "major conflict or hostility" with the commissioning couple, and one woman reported "dissatisfaction or coldness" with the commissioning father. All the other women had no problems. During the last few months of pregnancy none of the women reported having any major conflict or hostility with the commissioning parents; 33 of them said they had a harmonious relationship with the commissioning mother and 32 said the same of their relationship with the father.
The legal matter regarding the use of surrogate motherhood programs as one of the human reproduction methods is not raised by the active laws of Slovakia. Grounding on the Family Law, in particular, § 82, p. 1, only a woman who has given birth to a baby may be recognized as his/her mother, while any surrogacy contracts signed will be rendered as having no effect.
The surrogate motherhood activities are not allowed in Slovakia. However, should a man be a sperm donor, he would be able to prove his parenthood and assert his rights in respect of a baby born as a result of his sperm donation.
The surrogate motherhood law is not considered through many reasons, including, in particular, the following reasons:
1. There is no guarantee that a surrogate mothers will not wish to a baby born be her;
2. Genetic parents may change their mind to have a child, while the surrogate mother will not want to take care of the child;
3. Genetic parents may not have proper care of a child who was born by the surrogate mother.
The main minus existing legislation Russia is that the surrogate mother is not obliged to give their consent to the entry of the genetic parents' parental beared as her child and,
in principle, can leave the child himself. In Russia Commercial Surrogate motherhood is absolutely legitimate, because Russia is among the few fortunate countries where Surrogate
motherhood law allowed. Legal aspects of surrogate motherhood are governed by the Family Code of Russia, basic laws of the Russian Federation on health care. Implementation of
the medical component of surrogate motherhood is governed by 67 Order of the Ministry of Health of Russia. Questions surrogate motherhood in Russia are governed by the following
legislative acts: Article 51-52 Family Code Russia; Article 36 ( "Artificial insemination and embryo implantation) Fundamentals of Legislation on health care from № 5487-1 of 22
June 1993; Article 16 of Law Russia number 143-FZ of 15 November 1997 "On acts of civil status;> Order Ministry of Health of Russia number 67 of 26 February 2003 on the use of
assisted reproductive technology (VRT) in the treatment of female and male infertility; Family Code Russia and the Federal Law of 15 November 1997 № 143-FZ "On Civil Status Acts"
(edition of 31 December 2005). Under the current Family Code of Russia (from 8.12.95, Section 4, Chapter 10, Article 51, paragraph 4, Part Two): «... those who are married and which
gave its consent in writing to the use of artificial insemination or embryo implantation for in the birth of their child as a result of these methods are recorded his parents in the
book of records of births. And here are married to a person, which gave its consent in writing to the implantation of the embryo of another woman to his bearing, can be recorded
parents of the child only with the woman (surrogate mother), who gave birth to the child. In doing so, Paragraph 3 of Article. 52 Russian Family Code provides that the husband,
who in the manner prescribed by law, consent in writing to the use of artificial insemination or embryo implantation on, with no right to challenge paternity invoke these
circumstances. Do not entitled to invoke and wife, which gave consent to the implantation of the embryo of another woman, as well as the surrogate mother in defending motherhood
and fatherhood after the recording of parents in the book of records. Accordingly - Paragraph 5 of Article 16 of Law on Civil Status Acts of 15.11.97 N 143-FZ stipulates that if
the state registration of the birth of a child on the application of the spouses who agree to the implantation of the embryo of another woman to his bearing, together with a
document confirming is the birth of a child, should be submitted to a document issued by medical organizations, and affirms that the consent of women, who gave birth to the
child (surrogate mother), the record referred to the spouses parents of the child. Thus, Russian law gives preference to a woman - surrogate mother, who gave birth to the child.
It must be acknowledged that the legislation of many Country's surrogate motherhood perfect. For example, the services of surrogate mothers in Russia could take only officially
registered couples, single men and does not have access to assisted reproductive technologies. For comparison, in Ukraine, parents, in any case, customers will be recognized
(Article 123, paragraph 2 of the Family Code) and under the laws of the Republic of Belarus has no legal value, whether future parents in a registered marriage.
Thus, the legal regulation of surrogate motherhood in Russia imperfectly. The main shortcomings of legislation are that the genetic parents powerless, and may be
registered as parents only with the consent of surrogate mother, who gave birth to the child. Such a rule would be relevant in a society where prohibited commercial Surrogate
motherhood. But in Russia, where Surrogate motherhood exists solely on a commercial basis, the rule comes into deep conflict with the norms of the Civil Code of Russia. In Russia,
the law does not stipulate the situation after the divorce or the death of their parents until the child is born. Contract awarded, a child conceived but whether it will be entitled
to alimony or inheritance? The question lawmakers left open and must believe that the answer is negative: no, the child will not be able to receive content from a parent or failed
to become the heir after his death. By the white stains the law Russia on surrogate motherhood are the following, has not yet found a single decision: The possibility of surrogate
motherhood programs in pairs, not legally married; Use of surrogate mothers
in the treatment of infertility among single women; Reproductive and Surrogate motherhood for single men.
IFSW Draft Policy on Cross Border Reproductive Services
In Romania, impoverished young women recruited as egg “donors” by a clinic in Bucharest were subjected to hormone injections to maximize the number of eggs available for “donation” – around 20 - for which they received US$250.
The clinic made huge profits by charging recipients up to US$13,000 for each cycle of treatment using a fertilized “donated” egg. When the “donors” subsequently experienced medical complications, the clinic showed no interest in them.
Although the Bucharest clinic has since been closed by the authorities, the lack of regulation in many countries means that similar practices flourish in many parts of the world; women are also reported to be traveling abroad to “donate” their eggs in foreign countries.
While “donors” and surrogates are evidently at risk, the interests of the children who may be born as a result of these procedures and of the couples or individuals who pursue them may also be jeopardized. For example, inadequate screening of “donors” or surrogates may have adverse health consequences for children and egg recipients;
false or limited information may be provided about the “donors” or surrogate, compromising the child’s knowledge of their biographical, cultural and genetic heritage; the legal status of these procedures may be uncertain, resulting in legal and nationality ambiguities for children and families.
European Union member states are required to ensure that the donation of human tissue, including sperm, eggs and embryos, is voluntary, unpaid and altruistic, and that imports of human tissue into EU countries are subject to similar standards.
In 2005 the European Parliament supported a resolution prohibiting trade in human eggs and embryos. However, this is self-evidently not simply a European problem, but one that has global implications.
If this proposal gains support BASW would be pleased to take the lead in working with other members to consider the prevalence of “fertility tourism” in member countries and the ethical issues that arise from these and prepare a policy paper for the 2008 IFSW World Conference.
British Association of Social Workers
18th July 2006
The Catholic Church stands strong against the surrogate motherhood, although many Polish citizens support the opening of the first-ever agency in the country. The cagency has already released the price list for its services and even obtained its first clients, the Noviye Izvestia newspaper reports.
Surrogate mothers are obliged to undergo a series of profound medical examinations, which include tests for genetic diseases. In addition, the women will have to provide special medical certificates to prove that none of their relatives suffer from any genetic diseases either. To crown it all, they undertake not to drink alcohol or smoke tobacco during pregnancy.
Potential parents in their turn must guarantee that they will adopt a baby in any case, whether it is born as a healthy baby or not. A surr ogate mother also undertakes not to have any claims after the birth of a baby.
Surrogate motherhood has become a subject of vivid discussions in Poland recently. Recent opinion polls conducted in the country showed that the majority of the Poles approve the initiative, although the Catholic Church vehemently opposes it. Clergymen believe that it is not a surrogate mother, but God, whom childless people need to address with prayers.
Organizers of the center say that they decided to take up the initiative because of the serious demographic situation in Poland. To make matters worse, about 1.5 million Polish families cannot have children.
The parliament of Poland does not seem to be able to pass the law about artificial fertilization, hesitating between the official stance of the Roman-Catholic Church and the need to help citizens of Poland.
In Mexico firms represents the Intended Parents who arrange surrogacy agreements through CSP. This role includes drafting the appropriate contracts, providing legal counseling and assisting couples through the termination of the parental rights of the Surrogate Mother and/or Egg Donor. Surrogate Mothers are represented by independent counsel to assure that they fully understand the rights and obligations of entering into the agreement.
In Mexico it is critical that all parties to a surrogacy agreement have had an opportunity to properly evaluate the risks involved in selected infertility treatments prior to the commencement of any medical procedures. It is also critical that the parties have carefully considered the legal ramifications of entering into a written surrogacy agreement itself.
Because a surrogacy contract involves constitutionally protected parental rights and reproductive freedoms, obtaining legal representation is an important step to creating a valid surrogacy agreement with a Surrogate Mother and Intended Parents.
Comprehensive contracts should be executed prior to entering into any surrogacy arrangement to memorialize the intent of the parties. As two recent ground-breaking California cases, Johnson v. Calvert and Buzzanca v. Buzzanca, have illustrated, legal parental relationships may be established when Intended Parents initiate and consent to medical procedures intending to create a child they will raise, regardless of whether there is a genetic relationship between them and the child. The clearest manifestation of this intent is the contract.
Although few jurisdictions have passed laws on the legality of surrogate parenting, this burgeoning area is generating tremendous interest among legal scholars. Without question, surrogacy activity in both the legislative arena and in the courts is inciting both positive and negative responses and, in many instances, leaving the law in a state of flux.
Surrogacy programs in Italy are prohibited. It is still a matter of moral and ethical dispute whether it should be allowed that a woman carries a child not having any genetic connection with her. The catholic church is the main antagonist of such a method of human reproduction. It remains unclear who will be the mother of a child after its birth: the genetic mother or the woman who carried the child for many months. It is unknown how the surrogate mother will behave after the child is born. Will she agree to hand over the child to its lawful parents?
A bill legalising surrogate motherhood and setting down strict controls and limitations has been passed by Israel's parliament a day after regulations barring the practice expired by order of the High Court of Justice.
The controversial bill, which was several years in the making, was described by health minister Dr Ephraim Sneh as "a medical and legislative breakthrough." In an odd coalition, most of the opponents were Orthodox Jewish members of parliament (who did not like some of the provisions) and Israeli feminists (who argued that women would be turned into "wombs for hire").
Setting down a law on surrogacy was an urgent government priority as a group of infertile couples had persuaded the High Court to strike down "discriminatory" regulations that barred such arrangements. The petitioners had preferred no legislation at all to maintain complete freedom of action.
According to the new law, the commissioning father must supply the sperm, and the ovum must come either from the commissioning mother or from a donor who is not the surrogate mother. Therefore, the baby can be produced only by in vitro fertilisation. The surrogate who bears the child must be an Israeli resident and unmarried--unless a special committee approves a married surrogate "in special cases."
The surrogate mother may change her mind and ask to keep the baby, but only with a court's approval. If unmarried she could decide to abort the fetus.
Surrogacy arrangements will be strictly supervised by a seven member committee comprising doctors, a clinical psychologist, a social worker, a lawyer, and a clergyman of the same religion as the parties concerned. The committee will approve surrogacy contracts only if persuaded that all sides reached them freely and that the health of the mother and baby are not at risk. The mother will be paid only for legal and insurance expenses and compensation for her time, loss of income, and pain. The Israeli Women's Network has opposed the bill as immoral.
Childless couples look to India for surrogate mothers
By Anuj Chopra Correspondent of The Christian Science Monitor
ANAND, INDIA – Eight months pregnant, Reshma is like any other expecting mother, except that the child she's carrying isn't her own.
When Reshma gives birth next month in this small Indian town, the newborn will be immediately handed over to its biological parents, non-resident Indians who live in London and who have been unable to bear a child on their own. In return for renting her womb, Reshma will be paid a significant sum by Indian standards.
"I have two cherubic children of my own," says Reshma, who withheld her real name for fear of disapproval by neighbors. "That couple has none. Imagine how much happiness this baby will give them."
A year ago, the couple flew down from London to this dusty, unremarkable town to choose a surrogate mother . They are part of a growing number of childless foreigners beating a track to India, drawn here for many of the same reasons that have made India a top destination for medical tourism: low costs, highly-qualified doctors, and a more relaxed legal atmosphere.
The industry is estimated to be valued at $449 million, and the number of cases of surrogacy are believed to have doubled in the last three years based on newspaper classifieds and inquiries at clinics. But hard numbers remains elusive, partly because the practice is defused among small towns like Anand, where the lure of money is stronger than in wealthier cities.
The extent of the practice in the US is similarly unclear. One 1989 estimate by the Detroit News said that $33 million had been spent over the decade for surrogates. A 1992 estimate calculated that as many as 4,000 babies have been born to surrogate mothers in the US.
Dr. Nayna Patel, director of Anand's Kaival Hospital, cautions against seeing the trend in financially exploitative terms. "This is not the same thing as donating a kidney [for money].... A nine-month pregnancy can never be forced," she says. "Beyond the commercial angle, having a child is a deeply emotional issue."
She cites dozens of cases of couples that have spent a small fortune on failed in-vitro fertilizations or experienced repeated miscarriages and have had no option but to turn to surrogacy.
"These amounts are still nearly three times cheaper than what surrogacy in the UK would cost us," they say.
Their search put them in touch with several interested Indian mothers. Now the couple has started www.1-in-6.com, a website to help link up prospective parents and surrogate mothers from India.
Research at the Centre for Family Research at Cambridge University shows that British surrogate mothers did not suffer major emotional problems. "We did find that surrogate mothers did find the weeks following the handover difficult, but this became easier over time," says Vasanti Jadva, a researcher from the same university.
It's a view that resonates with fertility specialists like Dr. Patel: "Many surrogate mothers see this not as 'handing over' the baby, but as 'handing back' the baby, as the baby was never theirs to keep."
Anand's Kaival Hospital has up to 20 surrogate mothers. In the last two years since surrogacy began here, six babies have been delivered and two more are on the way. Some 75 percent of the clients are non-resident Indians from the UK, the US, Japan, and Southeast Asia.
Each day, dozens of inquiries from India and abroad inundate the clinic. Parents and prospective surrogates are carefully screened and counseled by the clinic, and both parties must sign an elaborate legal contract that signs over the surrogate mother's rights to the baby and underlines the financial terms.
Although all surrogates interviewed said that they would not get attached to the baby since they took up surrogacy for altruistic reasons, money does seem to be a motivator.
"How else will us uneducated women earn this kind of money, without doing anything immoral?" asks one of the surrogate mothers at the Kaival Hospital.
Reshma's husband Vinod - not his real name - says his paltry $50 montly pay as a painter would not be enough to educate his two children. He says the extra money will allow him to invest in his children's education and to buy a new home. But surrogacy is yet to be widely accepted here. For the past six months, Reshma and Vinod have been living in a neighboring village to keep the pregnancy a secret.
"Otherwise, we'll be treated like social pariahs," he says. "This isn't a respectable thing to do in our society."
Nor is it entirely accepted in other parts of the globe. Movements to allow for surrogate motherhood have been rejected by voters in places like Sweden, Spain, France, and Germany. Other nations that do allow it, including South Africa, the UK, and Argentina, employ independent ethics committees to evaluate surrogacy requests on a case-by-case basis.
Surrogate motherhood services are currently prohibited in Norway.
The subject of surrogate motherhood as a tool to help infertile married couples will be discussed thoroughly in the sphere of reproduction during the next years.
The reason for prohibition of surrogacy in Norway is that the ethical and legal aspects, as well as the status of a mother still remain unclear.
The present legal situation of surrogate motherhood in Germany is very restrictive. This is to such an extent, that it would barely be possible to conclude an agreement and go through with it within German jurisdiction.
Before going into details the development leading to this disastrous situation is to be summarized.
In the eighties a number of people entered into surrogate motherhood agreements in Germany.
This was certainly among other things due to cases from the US, which received extensive news coverage. Even a US attorney established a brokering-agency in Frankfurt/Main in 1987. This was prohibited by a German administrative court based on the grounds that such a business contradicts with public policy.
Unfortunately, after a reasonable start, the legal situation and the general public image of surrogacy in Germany deteriorated..
Only three cases came to court (in 1985/86). They mainly dealt with disputes over payments of money in connection with surrogacy contracts. The courts unanimously took a strong stand against surrogacy and found the contracts to be void( contradiction with public policy).
This was done without giving sufficient evidence mainly based on speculation regarding the best interests of the child.
Somehow a general view came into existence that surrogacy is to be considered a bad thing and should be banned. A detailed analysis of potential problems was never conducted.
A government report from 1985 (the so-called Benda-Report) covered surrogacy only superficially (four pages).Finally legislation was enacted, which governs surrogate motherhood up to this day.
Most prominently Art.7 I Nr.7 of the German Embryonenschutzgesetz (law for the protection of embryos, which came into force in 1990 and also prohibits egg-donation in Art. 1 I Nr. 1 and is in general very restrictive regarding reproductive medicine) provides that no medical practitioner should perform artificial insemination or embryo donation on a woman, who is willing to hand the child over to commissioning parents upon birth in accordance with a surrogacy agreement. Non-compliance is a criminal offence, with the consequence of a fine or imprisonment.
Moreover provision concerning the brokering of surrogacy contracts is made for in the German Adoptionsvermittlungsgesetz (law concerning the brokering of adoptions enacted in 1989).
Art.13 b states that no person should bring together a surrogate with prospective commissioning parents or vice versa.
Art.13 d prohibits commercials or announcements which seek to bring together such persons. Non–compliance is again a criminal offence.
This legislation is not based on reason and detailed analysis but on panic and misconception.
French Senate revealed Wednesday the contents of a closed-door hearing to propose guidelines pertaining to the legality of surrogate mothers , a practice that was banned in France in 1994. The talks are a precursor to a revision in bioethical law, slated for 2009.
Under the proposed reforms, the birth mother would retain “the right of repentance,” or the right to change her mind for up to three days after giving birth. On the other hand, the adoptive parents would not be permitted to “return” the baby on the grounds of its deformity or handicap.
Presiding over the Senate working committee charged with presenting the argument, Michèle André, a Socialist Party member and women’s rights activist, stressed the need to address the issue. This, she said, was necessary “to avoid merchandising women’s bodies,” and to avoid “procreative tourism” on the part of French would-be mothers who find surrogates in countries where the practice is legal, such as the USA, Canada, the UK, the Netherlands and Belgium.
Issues to be ironed out included the question of whether gay couples would be authorised to use surrogate mothers, and whether providing financial remuneration for the biological mother was legal.
The debate over surrogate motherhood resurfaced in October 2007, when a French court made a landmark decision allowing a French woman who used a surrogate in the US to register the children as her own in France. The case involved twin girls.
Under normal circumstances, French law would not recognise legal custody for a mother who had gone around the system and found a surrogate. The court stopped short of making a larger statement about the validity of surrogate motherhood, but the case nonetheless started a dialogue culminating in Wednesday’s Senate hearing.
The conference addressed to the beneficial effects of legalization of alternative methods for human reproduction, i.e. to the issues of surrogate motherhood was held on June 5, 2009, in the town of Konopiste, Czech Republic.
As it was agreed upon between the experts explicitly, such methods were to be solely used according to specific medical indications (such as inborn or evoked uterus damage, heart diseases, etc., since any such disease might pose a threat to the health of a pregnant mother, fetus, etc.), but not for the benefit of women who would prefer to have a recourse to surrogacy programs by any social reason: unwillingness to terminate their career, fear of labor (delivery), and so on.
Simultaneously, many people open fire against commercialization of surrogate motherhood programs. Motivations of a decision to become a surrogate mother must be taken into account.
At all events, final decisions in respect of babies will be made by surrogate mothers, even if they stand in contradiction to the interests of genetic parents.
The only bar to the application of such reproductive medicine method is that no laws have still been passed in the Czech Republic, which would regulate the aspects of surrogate motherhood, and childless couples may not find a way of getting a child of their own.
Canadian Surrogacy Options Inc. has a mission to create a balance in supporting both the Surrogate and the Intended Parents through this wonderful, yet highly emotional journey. We provide complete support and guidance throughout the process, as well as through the medical and psychological screenings and the drafting of legal contracts. We are also pleased to be available for continued assistance as needed throughout the pregnancy.
Surrogacy in Canada has been happening for a very long time, but, as with many issues dealing with infertility, has been kept very quiet. Certainly in the last few years it has come to the forefront for many reasons. One being the media, hopefully putting a positive spin on things, and secondly the Canadian government, who from time to time think that they should pass some sort of legislation.
Hopefully, through this web site, people can realize that surrogacy can not only help them with their dream of having a child, but also provide a positive and rewarding experience for everyone involved!
Surrogate parenting is a legal and wonderful family construction option for many families. It can be a joyous, fulfilling experience for the Intended Parents and the Gestational surrogate.
There is currently no specific legislation that encompasses reproductive technology. However clauses in the Human Tissue Act 1983 (NSW) do incorporate some aspects. The NSW government has released a discussion paper that canvases the need for legislation to govern reproductive technology practice and research. The report from the consultation around this paper is expected early in 2000.
NSW has no current legislation regarding surrogacy and it is thus not specifically prohibited but operates under the National Health and Medical Research Council ethical guidelines and the regulation of Institutional Ethics Committees. The NSW Law Reform Commission Report (1988) recommended commercial surrogacy be prohibited by law and non-commercial surrogacy not be encouraged. As in all states of Australia, when surrogacy agreements are made, the birth parents are lawfully deemed to be the legal parents.
Apart from these instances, New South Wales' reproductive technology units currently rely on the National Health and Medical Research Council's recommendations for rulings on reproductive technology issues.
The Victorian Government introduced their Infertility Treatment Act 1995 (Vic) in 1995 and it was fully proclaimed in 1998, following amendments which were passed by the Parliament in 1997.
The following legal opinion outlines legality and procedure of gestational surrogacy in TRNC and legality and procedure of foreign citizens seeking parentage of the child(ren), born by a surrogate mother and returning to their country of residence.
The legal basis of surrogacy in TRNC is determined by the Number of the law 57-2014, Law on the Rules of Human Cell, Tissue and Organ Transport Regulation Number: 607/2009, Date: 26.082009 Urea Treatment Centers and Methods Regulation
According to this regulation using a surrogate mother or gestational surrogacy is clearly legal. Research shows that Gestational Surrogacy legal within TRNC and there is no legislation which is contravened by entering into the surrogacy arrangement or leaving Cyprus with the children. There is no restriction in terms of foreign citizens.
According to the TRNC Law, Gestational Surrogacy is legal for same-sex, individuals or couples.
Birth certificates are issued in the name of the Intended parent(s) only upon court application. The surrogate name does not appear.
The National Constitution of Colombia states in Article 42-6: "Children born in or out of wedlock, adopted and procreated naturally or with scientific assistance, have the same rights and duties. The law shall regulate responsible descendants".
The legal precedent to include processes of surrogacy was defined by the Sentence of the Supreme Court and its Constitutional Tribunal T 968 of 2009 that expresses "In the Colombian legal system there is no express prohibition to make this type of agreement or convention. However, with respect to assisted reproduction techniques, within which the surrogate mother is included, the doctrine has considered that they are legally legitimized, in accordance with Article 42-6 of the Constitution, which states that "...children born in or out of wedlock, adopted or procreated naturally or with scientific assistance, have the same rights and duties...".
Colombia's constitution does not allow for discrimination, so all singles, heterosexual couples and same-sex couples can participate in the surrogacy process as long as there is a genetic link to the baby.
This was recognized by the Colombian Constitutional Court in a landmark decision in 2015 that ruled that excluding same-sex parents as possible adopters was a limitation on the right of children to have a family and not be separated from it.
Equal rights are also extended to aliens in Article 100 of the Constitution which grants aliens in Colombia the same civil rights and guarantees as those granted to citizens, so this includes international surrogacy.
After birth, there is a process to recognize the future parents on the birth certificate as the legal parents, but there is no prenatal order process as there is in several states in the United States.
Constitutional Court Ruling T 968 of 2009 describes the requirements and conditions necessary for a surrogacy program between the prospective parents and the surrogate, which include:
There is a physiological problem in conceiving
The surrogate mother does not provide the necessary gametes for conception (there is no biological link with her, so there is no traditional surrogacy as it is called, only gestational surrogacy)
The surrogacy process is of an altruistic nature, not a commercial surrogacy
The surrogate mother meets a number of requirements, such as adulthood, psychophysical health, having children, etc.
The surrogate must undergo relevant tests before, during and after pregnancy, as well as appropriate psychological evaluations and medical procedures
Pregnant women, once they have signed surrogacy contracts and
- Surrogacy Agreements with their legal representation, and implanted with the reproductive material, cannot be withdrawn from the child's birth
The biological parents cannot refuse the child under any circumstances once the baby is born
The death of the biological parents before birth does not leave the child unprotected
The surrogate can only terminate the pregnancy with a medical indication from her treating physician.
Article 43 of the Colombian National Constitution (1991) states that "women and men have the same rights and opportunities before the law and cannot be subject to any type of discrimination". This was recognized by the Colombian Constitutional Court in a historic decision in 2015 that ruled that excluding same-sex parents as potential adopters was a limitation on the right of children to have a family and not be separated from it.
In addition, in parallel, in ruling SU-214 of April 2016, the Constitutional Court ruled that same-sex marriage was legalized and that all judges and notaries would be obliged to perform that ceremony under the same conditions required for heterosexual couples. Therefore, same-sex couples have the same rights and obligations as heterosexual couples or singles, including the right to procreate.
Surrogacy laws are favorable and surrogacy contracts are valid. When the baby is born, the biological father will be placed on the birth certificate.