On the Need to Expand the Legal Regulation of Surrogacy Relations in Russia

Purge Anna Rolandovna PhD in Law Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, office 5502 a.purge@mail.ru Other publications by this author

Murtazozoda Dzhamshed Saidali Doctor of Law Chairman of the Commission on Regulations and Organization, Majlisi Namoyandagon Majlisi Oli of the Republic of Tajikistan 42 Rudaki str., Dushanbe, Tajikistan, 734001 jamshed_1972@mail.ru

The year 2022 turned out to be largely anti-record for the national demography. The drop in the birth rate for the first six months (i.e., children conceived in a completely prosperous period of 2021) amounted to more than 6% in relation to the same period of 2021 ^[1]. At the same time, both the technical analysis of the current trend (the birth rate chart based on data from the RSFSR and Russia from 1956 to 2022) and the fundamental analysis of the prerequisites for its further movement – already in July clearly indicated the prospect of its further decline. Indeed, as of October 2022, Rosstat stated that the number of children born is 10.7% less than in October 2021 ^[2]. Needless to say, October 2022 does not yet bear the information burden of a Special military Operation, which the following months will inevitably show.

The Ministry of Labor of Russia undertook to analyze the current demographic situation in order to prepare measures to increase the birth rate based on the "set of data on the demographic situation in all regions of the Russian Federation", however, it is already known that the main factors of the demographic pit are considered such as the consequences of the Second World War and the social crisis of the early 90s of the last century ^[3]. This point of view, of course, has its reasons, but it is obvious that the Russian state has not done everything possible to increase the birth rate.

According to some authoritative estimates, as of 2016, about 6 million women of reproductive age and 4 million men suffered from infertility in Russia. "About 15% of couples in Russia are infertile according to various data today" ^[4]. Based on these statistics, it can be concluded that the reduction in the number of citizens who, according to objective (medical) indicators, are not capable of reproducing offspring is one of the significant directions of increasing the birth rate.

In such circumstances, it would seem that the state should provide all possible assistance to Russian citizens who want to overcome the problem of infertility through assisted reproductive technologies and, in particular, on the basis of a surrogacy service agreement. This assistance is possible primarily by a thorough, detailed, systematic regulation of the entire field of these relations, which meets both the private interests of surrogacy market participants (infertile citizens and surrogate mothers) and the national interest (the interest of the people of Russia) and is the duty of the Russian Federation as a legislator. However, with all the scientific and technical possibilities of assisted reproductive technologies provided to our citizens by modern medicine, there is practically no legal regulation of these technologies in Russia.

In accordance with the current demographic situation, the State Duma of the Federal Assembly of the Russian Federation has adopted a number of laws in this area, including a ban on the transfer of children born from surrogate mothers – citizens of the Russian Federation - to foreign citizens, even if they were their genetic parents ^[5]. Serious law enforcement opposition to surrogate motherhood carried out in the interests of foreign citizens can be seen in the case of Rosyurconsulting LLC, in which not only (already convicted) employees of LLC, but also two surrogate mothers and four doctors turned out to be defendants ^[6].

However, all these measures look palliative and one-sided, since they do not directly affect the regulation of private (private-legal) surrogacy relationships. By themselves, the prohibitions and sanctions created do not help citizens in any way in the realization of their rights to create a family. Ensuring only the public and legal interests of the Russian Federation, these measures do not eliminate the infinite number of problems and conflicts that arise in the real social practice of Russian surrogacy and the prevention and resolution of which is the direct responsibility of the state. Although, with regard to the relations under consideration, their settlement would not only reduce the number of legal conflicts, but also expand the use of reproductive technologies and would obviously contribute to the overall increase in the birth rate, the Russian legislator, despite the increasingly aggravating demographic situation, is in no hurry to create a mechanism for such regulation. Due to the anarchic state of this market, a lot of conscientious citizens who are ready to finance surrogacy suffer.

A legal analysis of situations arising in the surrogacy services market, conducted based on the materials of Internet sites (for the purpose of objectivity of the study, the author believes it is possible to trust the reports about the most common, typical facts presented on these sites by the participants of surrogate relationships), shows that, although in the general mass (or as a general rule) potential genetic parents, considering the child as the highest value for themselves, we are ready to offer surrogate mothers all the necessary conditions, and the amount of payment to the latter is determined solely on the basis of their free will, the current law and order practically does not protect the interests of any of the parties to these contractual relations.

So, the following stories are typical for the stage of preparation for entry into the surrogacy program: "in fact, she turned out to be a fraud, they sent her money for a ticket, so she disappeared with them... she found a thousand excuses and convinced us to buy a ticket on her own" ^[7]; "the biological parents paid for her journey, doctor's appointment, tests, ...placed her in a good apartment, offered excellent payments..., the girl left I went home happy with everything... and just stopped responding after a while" ^[8]. The characteristic of a fraudster in this market is also typical: "she will offer her candidacy as a CM, pass all the examinations at your expense, ask for money to solve her problem and refuse to sign a contract under any pretext" ^[9].

Of course, the provisions of paragraph 3 of Article 434.1 of the Civil Code of the Russian Federation ^[10] are quite applicable to such situations of sudden refusal, which assesses "sudden and unjustified termination of negotiations on the conclusion of a contract under circumstances in which the other party to the negotiations could not reasonably expect it" as a civil offense and obliges the party that conducts or interrupts negotiations on conclusion of the contract in bad faith, to compensate the other party for the losses caused by this. However, the insignificance of losses does not stimulate potential biological parents to contact the police, which, in turn, leads to impunity for imaginary surrogate mothers, further expansion of fraud in this area and, most significantly, to an increase in the disappointment of potential biological parents in the effectiveness of this form of realization of the right to create a family. As a result, the number of people willing to use assisted reproductive technologies is decreasing, which directly affects the birth rate.

It seems that the most effective measure in this direction should be the activation of the work of police agencies aimed at monitoring and detecting fraud in the surrogacy market. Most often, the actions of "surrogate" fraudsters fall under the scope of part two of Article 7.27 of the Code of Administrative Offences of the Russian Federation ^[11], however, acts that qualify under part one of Article 159 of the Criminal Code of the Russian Federation are also possible ^[12].

Taking into account the specifics of surrogacy relations, as well as the need for special state protection of relations in the field of assisted reproductive technologies, it seems appropriate to include in Chapter 21 of the Criminal Code of the Russian Federation Article 159.7 "Fraud in the field of assisted reproductive technologies", the offense of which could be stated in the following wording: "Fraud in the field of assisted reproductive technologies, then if there is theft of someone else's property or acquisition of the right to someone else's property by misleading potential parents about their intentions to participate in the assisted reproductive technologies program, it is punishable...".

Such measures are unlikely to exclude fraud in this market completely – due to the initially fiduciary legal nature of the relationship that arises between potential parents and a surrogate mother, but it allows you to significantly limit fraudulent activity and speculation on people's hopes.

For the next stage of the use of assisted reproductive technologies – the stage of entry into the medical program – it is also possible to state the almost complete absence of legal regulation of relations between potential parents and surrogate mothers. This situation leads to the fact that the parties strive independently, to the best of their own legal awareness, to settle their relations with a contract that is far from always accurate, unambiguously interpreted and covering all significant aspects of the surrogate pregnancy process.

However, even in contractual regulation, the problem that requires state intervention is quite clear.

On the one hand, the monitoring study shows that potential parents strive in every possible way to put under their own supervision or even direct their own control all the pastime and even the personal life of the future surrogate mother, which, taking into account their interest in conception on the basis of a certain - their own embryo, is quite understandable. The refusal of potential parents from such control is fraught with situations described in many ways on websites about surrogacy: "during the entire time of nursing the child, I used alcohol, smoked. Three days before the reception, I restrained myself from using. The fact that she was given money for medicines, she kept them for herself. After the birth of the child, she stole property from the apartment where she lived" ^[13], etc. Moreover (and this is the most important): monitoring of surrogacy websites indicates that after joining the program (and, of course, receiving payment), fraudsters used various kinds of "folk remedies" that prevent pregnancy. In the existing conditions of personal freedom of a surrogate mother, potential parents do not have legal means to counteract such manipulations.

On the other hand, future surrogate mothers cannot be satisfied with excessive, excessive restriction of their personal freedom. So, in response to the reproaches of an already established parent, one of the surrogate mothers said: "Complete restriction of freedom, are these gorgeous conditions? Is a moral crush a posh condition? A personal nurse is a personal supervisor and a snitch for bio. Who herself said that she was told to report everything she sees and hears" ^[8]. As can be seen, excessive or inappropriate control on the part of biological parents also does not contribute to the normalization of surrogate–maternal relations.

The solution of all these problems is possible, as it seems, only in the case of intervention in the surrogacy programs of the state. It seems necessary to create inpatient surrogacy departments at maternity hospitals, whose functions would include maintaining a hospital regime and inpatient, i.e. constant medical monitoring of the reproductive health of surrogate mothers.

The reason for placing a woman in the surrogate mother's department of the maternity hospital should be recognized as her entry into the surrogacy program and her consent to the medical regime of the medical organization. On the other hand, her obligation to enter the hospital may be provided for by a surrogacy agreement with potential parents.

The organization of surrogate mother's offices in maternity hospitals will allow the performers of surrogacy services to be placed under double: administrative-legal (the functions of which are performed by the attending physician) and civil-legal (on the part of potential parents interested in a positive outcome of all medical procedures carried out) control.

The extension of the general hospital regime of a medical institution to the future surrogate mother will allow timely response to the complications of the initial stage of pregnancy, as well as to identify with a greater degree of certainty the specific biological reason why the surrogate mother, despite the complex of medical procedures carried out by a private medical organization, cannot become pregnant. In particular, the conclusion of the attending physician about the passage or refusal of a potential surrogate mother from undergoing the necessary procedures, about compliance or non-compliance with the general medical organization (hospital) and recommended individual (program) medical regimes may, as a statement of fact, become a strong judicial evidence in a dispute between her and potential parents.