Comparative Legal Analysis of the Legal Regulation of Surrogacy in the Russian Federation and CIS Countries

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

To date, due attention has not been paid to the legal regulation of the institute of surrogacy. Despite the existence of fundamental works devoted to this method of ART, the domestic legislator has not yet developed a set of measures to resolve existing problems arising from judicial practice, as well as scientific doctrine. In this connection, in order to improve legal regulation, it is necessary to refer to the experience of other countries that provide for the possibility of using surrogacy on their territory.

The legal definition of surrogate motherhood is fixed in Clause 9 of Article 55 of the Federal Law "On the Basics of protecting the health of citizens in the Russian Federation" dated 21.11.2011 No. 323-FZ. So, it means "bearing and giving birth to a child (including premature birth) under a contract concluded between a surrogate mother (a woman carrying a fetus after the transfer of a donor embryo) and potential parents whose germ cells were used for fertilization, or a single woman for whom carrying and giving birth to a child is impossible for medical reasons" ^[1]. Based on this definition , several signs of surrogacy can be distinguished:

- the presence of the process of carrying and giving birth to a child by a surrogate mother, including premature birth;

- the existence of a contractual relationship, i.e. the existence of a contract;

- exhaustive subject composition (surrogate mother, as well as potential parents or a single woman);

- the fact of using the germ cells of potential parents or a single woman and the inability for a woman to carry and give birth to a child for medical reasons.

To date, both in legislative acts and in the scientific community there is no clear understanding of the types of surrogacy.

Thus, I.A. Demina identifies two main types of surrogacy:

- "traditional" is a relationship at the biological level between a woman carrying a child for another couple and this child. It involves conception using the genetic material of the father and the egg of the surrogate mother. It is important to note here that in this case, the woman who is carrying the child is his biological mother;

- "gestational" – there is no connection at the genetic level between the surrogate mother and the child. She is simply carrying the embryo of the biological parents of the customers. The fertilized egg of the parents is injected into the uterus of the surrogate mother. This method is preferred among couples, because it allows one hundred percent genetic connection with the child ^{[2, p.154]}.

Paying attention to judicial practice, it should be noted that the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) has not bypassed the issue of the application of the rules on surrogacy by courts. Thus, the Plenum of the Supreme Court of the Russian Federation on 16.05.2017 ^[3] adopted a Resolution "On the application of legislation by courts when considering cases related to the establishment of the origin of children." Despite the fact that the provisions of the legislation are duplicated in the Resolution, recommendations deserve special attention when considering cases on establishing paternity. These recommendations relate to the spouse who has consented to the use of artificial insemination or embryo implantation. It has become impossible for such a person to refer to these circumstances when challenging paternity, but at the same time, as the Supreme Court of the Russian Federation pointed out, the existence of such an agreement does not prevent the spouse from challenging the paternity record on other grounds. In addition, the Supreme Court of the Russian Federation pointed out the circumstances that should be investigated when considering the issue of challenging paternity by a person registered as the father of a child when using surrogate motherhood. These should include the following circumstances:

- was the child born as a result of the use of artificial insemination or embryo implantation;

- was the consent of such a person voluntary and conscious;

- for how long such consent was given and whether it was withdrawn before the expiration of this period;

- has this period expired at the time of artificial insemination or embryo implantation;

- whether the plaintiff gave consent to the use of donor biological material in the application of these methods.

In defense of potential parents, the Supreme Court of the Russian Federation pointed out that if the surrogate mother refuses to consent to the registration of potential parents as parents, then these persons have the right to file a lawsuit with the court and such a circumstance cannot serve as an unconditional basis for refusing to satisfy the claim of these persons to recognize them as the parents of the child and the transfer of the child to them for upbringing.

Modern surrogacy in the Russian Federation is a phenomenon that is both positive and negative, both from the point of view of legal, religious, and moral and ethical aspects. Public, as well as scientific opinion on the use of surrogacy is of a dual nature.

Supporters of the non-use or prohibition of surrogacy believe that such practices affect at least the following aspects: moral, psychological and sociological.

So, one of the opinions comes from the fact that a child born from a surrogate mother is a kind of commodity. This practice can lead to situations in which rich people will be able to hire surrogate mothers to carry their offspring, not pursuing good intentions, but only commercial or other benefits. There may also be situations in which foreign citizens who decide to turn to surrogate mothers subsequently use children born on the territory of their own states to meet their personal goals, which are not always associated with the creation of a full-fledged family. Proponents of the ban believe that motherhood in such situations becomes a commercial duration, where the desire for great financial gain on the part of surrogate mothers may prevail over good intentions and considerations of benefit.

So, in June 2021, a group of deputies introduced a bill banning foreign citizens and stateless persons from using the services of surrogate mothers in the territory of the Russian Federation. In support of their position, they point out that "in general, in 2020, the investigative authorities initiated 25 criminal cases (in 2019 - 17) on the facts of committing crimes against minors under Parts 2, 3 of Article 127.1 and Article 127.2 of the Criminal Code of the Russian Federation ("Human trafficking and the Use of slave labor"), in particular 12 criminal cases were sent to the court (in 2019 - 9). In 2019, 10 minors under the age of 1 year were recognized as victims of completed cases of this category, in 2020 – 7. The investigation of a criminal case initiated in January 2020 under Part 1 of Article 109 of the Criminal Code of the Russian Federation ("Causing death by negligence"), pp. "b" caused the greatest public outcry. "g", "z" Part 2 of Article 127.1 of the Criminal Code of the Russian Federation ("Human trafficking") upon the discovery in one of the apartments in Odintsovo, Moscow region, of the corpse of a newborn baby born by a surrogate mother and transferred to representatives of an organization located in Moscow for possible subsequent sale outside the Russian Federation. Also, three young children without relevant documents were found in the specified apartment. These children were born by surrogate mothers S., M. and I. for citizens of the Republic of the Philippines" ^[4]. The existence of such terrible situations does not reveal the potential of surrogacy from the best side, as well as its benefits.

One of the methods of improving legislation is to borrow provisions from the regulatory legal acts of those states where surrogacy is allowed. Despite the fact that this method of infertility treatment is used in the countries of the western and eastern hemisphere, it is worth paying attention to countries close to the Russian Federation in legal terms.

These include the countries of the Commonwealth of Independent States (hereinafter referred to as the CIS). This choice is due to the similarity of the legal systems of the former Soviet republics, as well as their new own path of development, different from the Russian one, both in legal and ideological terms.

In this regard, we will consider the legal regulation of surrogacy in the countries of the European region (Ukraine, Belarus, Moldova).

The legal regulation of surrogacy in Ukraine is based on the following normative legal acts:

- The Family Code of Ukraine (articles 123, 133 and 139) ^[5];

- Law of Ukraine "Fundamentals of Legislation of Ukraine on Healthcare" dated November 19, 1992 No. 2801-XII (Articles 40 and 48) ^[6];

- Order of the Ministry of Health of Ukraine No. 787 dated September 9, 2013 "On approval of the Procedure for the use of assisted reproductive technologies in Ukraine" (Section 6) ^[7];

- Order of the Ministry of Justice of Ukraine dated October 18, 2000 No. 52/5 "On approval of the Rules of State Registration of acts of civil Status in Ukraine" (Chapter 3, paragraph 11) ^[8].

The main source of legal regulation is the Order of the Ministry of Health of Ukraine dated September 9, 2013 No. 787. The current Ukrainian legislation, as well as the Russian one, does not pay due attention to this method of ART. There are no concepts of surrogate motherhood, surrogate mother and potential parents in Ukrainian legislation, unlike the Russian one, to which the above concepts are slightly known.

Only a man and a woman who are in a registered marriage can act as potential parents, unlike in the Russian Federation, where both a man and a woman who are not in a registered marriage, and a single woman, and based on judicial practice, a single man can use this method of ART.

At the same time, an imperative rule is established that there must be a genetic link with the child between both future parents (one of them), as in Russian legislation. Similar is the provision that there should be no genetic connection between a surrogate mother and a child.

Separately, it should be noted that the legislation of Ukraine establishes the possibility for close relatives of future parents (sister, mother, cousin, etc.) to act as surrogate mothers for future parents, which is not provided for by Russian legislation.

Considering the criteria for a surrogate mother, it is worth noting that an adult capable woman who has her own healthy child, who has signed a voluntarily written application and has no medical contraindications, can become one. The list of criteria is similar to Russian legislation, with the exception of age (in the Russian Federation it ranges from 20 to 35 years) and obtaining a medical report on a satisfactory state of health, which is not provided for Ukrainian surrogate mothers.

Similar provisions include the fact that a married surrogate mother must obtain the written consent of her spouse. However, such consent must be notarized, which is not provided for in the Russian Federation.

Considering the indications for the use of surrogacy, it is worth noting that the legislation of both countries in this regard is quite similar, with the exception of certain points. So, in the Russian Federation, one of the indications is the absence of pregnancy after repeated attempts at embryo transfer (3 or more attempts at transferring embryos of good quality), in Ukraine the number of such attempts is four. At the same time, such an indicator as a habitual miscarriage, unrelated to genetic pathology, is not fixed in Ukraine. As for the requirements for potential parents, they are absent in Ukraine, as well as in the Russian Federation.

One of the provisions unknown to Russian legislation is the consolidation of the list of documents necessary for the surrogacy procedure. So, the surrogate mother is obliged to present:

- application for participation in the procedure;

- a copy of your passport;

- a copy of the marriage or divorce certificate (except for a single woman);

- a copy of the birth certificate of the child (children);

- notarized consent of her husband to her participation in the surrogacy program (except for single women).

Spouses must provide:

- application of the patient/ patients for the use of ART;

- a copy of passports;

- a copy of the marriage certificate;

- a notarized copy of a written joint agreement between a surrogate mother and a woman (man) or spouses.

It is assumed that such a package of documents is provided by the parties on the territory of the Russian Federation, however, such a requirement, unlike Ukrainian legislation, is not fixed at the legislative level.

One more distinctive feature of the Ukrainian legislation follows from the above requirements, namely, the need for notarization of the surrogacy contract, which is not provided for in the Russian Federation. In general, it is worth noting that the Civil Code of Ukraine, as well as the Russian One, does not contain provisions regulating relations arising from the conclusion of a surrogacy contract. As in Russian reality, such an agreement is based on the provisions of the service agreement (Chapter 63 of the Civil Code of Ukraine) ^[9].

An interesting point is that Ukrainian legislation establishes the possibility of potential parents to participate in partner childbirth together with a surrogate mother, which is not provided for in the Russian Federation.

Separately, it is worth noting the issue of registration of a born child. As in the Russian Federation, potential parents can be registered as parents of a child only with the consent of the surrogate mother, while a distinctive feature from the Ukrainian legislation is the notarization of such consent. In addition, potential parents must be provided with a certificate of their (mother or father) genetic relationship with the fetus, which is not provided for in Russia.

Considering the issue of establishing the origin of the child, then, here, the Ukrainian legislator, despite the need for the consent of the surrogate mother, clearly indicated that in the case of transferring into the body of another woman a human embryo conceived by the spouses as a result of the use of assisted reproductive technologies, the parents of the child are the spouses (Article 123 of the IC of Ukraine). Regarding the situation in which the conception of an embryo took place with the participation of a donor and one of the spouses, then the legislator stood aside, not settling this point in any way. At the same time, as in Russia, when challenging maternity (paternity), the parties do not have the right to refer to the fact of using ART methods.

After analyzing the Ukrainian legislation, we can come to the following conclusions. At the moment, it remains as insufficiently regulated as in Russia. The criteria for a surrogate mother, in particular the age and state of her health, as well as the inability of unmarried men and women, single women and single men to apply for surrogacy services, raise separate questions. However, in order to improve legal regulation, it would be possible to borrow the need for notarization of the surrogacy contract and the agreement of the surrogate mother's spouse, as well as securing the opportunity to act as surrogate mothers to mothers, sisters and other close relatives of potential parents. At the same time, at the legislative level, it is possible to fix the list of documents provided by potential parents (one of them) and a surrogate mother, setting out this list in accordance with the subject composition provided for by Russian legislation. As an additional right of potential parents, it would be possible to consolidate their participation in partner childbirth with a surrogate mother.

The legal regulation of the institute of surrogacy in Belarus is based on the following NPA:

- Code of the Republic of Belarus No. 278-Z of July 9, 1999 "On Marriage and Family" ^[10];

- Law of the Republic of Belarus No. 341-Z of January 7, 2012 "On assisted reproductive Technologies" (hereinafter – the Law of the Republic of Belarus No. 341-3) ^[11];

- Resolution of the Ministry of Health of the Republic of Belarus No. 124 dated December 24, 2019 "On the use of assisted reproductive technologies" ^[12].

One of the main distinguishing features of the Belarusian legislation is the creation of a single NPA dedicated to the issues of assisted reproductive technologies, including surrogacy. The law establishes the conceptual apparatus, conditions and procedure for the use of surrogacy, requirements for a surrogate mother, her rights and obligations, as well as general provisions on the surrogacy contract.

Based on Article 1 of the Law of the Republic of Belarus "On Assisted Reproductive Technologies," surrogate motherhood is "a type of assisted reproductive technologies consisting in the union of a sperm and an egg removed from the body of a genetic mother, or a donor egg outside the woman's body, the development of an embryo formed as a result of this connection, the further transfer of this embryo into the uterus of a surrogate mother, gestation and the birth of her child."

In turn, a surrogate mother is "a woman who, under a surrogacy contract, carries and gives birth to a child who is not a carrier of her genotype."

It is worth noting that there is a sufficient difference in comparison with the definition of surrogacy contained in Russian legislation. Thus, the Law of the Republic of Belarus No. 341-Z reveals the detailed process of creating and transferring an embryo into a woman's body, which is not enough in our law. In both terms, there is a subject - a surrogate mother, who plays a key role in surrogacy.

Thus, it is possible to identify the main features inherent in the definition of a surrogate mother in Belarus:

1) only a woman can be a surrogate mother;

2) the relationship arises from the surrogacy contract;

3) the purpose of a woman is to bear and give birth to a child;

4) the child does not have the genotype of a surrogate mother.

Having considered the conceptual apparatus, it is necessary to pay attention to the conditions and procedure for the use of surrogacy. These provisions are disclosed in Article 20 of the Law of the Republic of Belarus No. 341-Z.

As in the Russian Federation, the basis of legal relations arising from the use of surrogacy is a contract, which is concluded in writing, and unlike the legislation of the Russian Federation is subject to notarization. Such a measure is aimed at establishing transparency and legality of emerging legal relations.

The surrogacy service can be used by a woman for whom the bearing and birth of a child is impossible for medical reasons, or are associated with a risk to her life and (or) the life of her child. The list of such medical contraindications is contained in the Order of the Ministry of Health of the Republic of Belarus No. 124 and is similar to those that exist in the Russian Federation.

It is worth paying attention to the fact that the condition of the impossibility of bearing and giving birth to a child due to the possible risk to the life of the mother and (or) her child is not provided for in Russian legislation. The implementation of such a provision in domestic legislation would increase the number of potential parents applying for surrogacy services. However, this provision should apply only to women, excluding single men, who, as judicial practice shows, become single fathers for children born to surrogate mothers, but who, due to physiological characteristics, cannot perform a childbearing function.

As in the Russian Federation, potential parents can use donor materials, but there must be a genetic link between one of the parents, or both, and the born child. It is not possible to use only donor materials. In this, the legislation of the Russian Federation and Belarus are similar.

Having considered the general conditions and procedure for using surrogate motherhood, it is worth paying attention to the provisions on the surrogate mother. Article 22 of the Law of the Republic of Belarus No. 341-Z states that a surrogate mother can be a married woman aged 20 to 35 years, who has no medical contraindications to surrogacy, who has a child, and at the time of the conclusion of the contract was not recognized by the court as incapacitated, was not deprived of parental rights, etc. In contrast to the legislation of the Russian Federation, restrictions on Belarusian surrogate mothers were extended by analogy, established for adoptive parents. This measure is reasonable and fair and will allow to exclude undesirable and dangerous persons from the potential list of surrogate mothers.

Also, among the distinctive features, it is worth noting the need to find a surrogate mother in marriage, which is not provided for in the Russian Federation. The criterion of having a child also raises questions. From the current provisions of the Belarusian law, it is not clear whether this child should be healthy, whether he is his own, that is, born by a surrogate mother or can be adopted. In this regard, the law of the Russian Federation approaches the statement of the above criterion in more detail. In addition, the Belarusian legislation does not provide for a criterion related to obtaining written informed voluntary consent for medical intervention.

Paying attention to other conditions, it is worth noting that in Belarus, as in the Russian Federation, a surrogate mother cannot be an egg donor at the same time. In turn, the Belarusian legislator has not fixed any criteria for potential parents.

In general, the Belarusian legislator has made much further progress in the legal regulation of the institute of surrogacy. So, in article 23 of the Law of the Republic of Belarus No. 341-Z, the general rights and obligations of a surrogate mother were fixed, which is not provided for in the Russian Federation. Thus, the rights include the requirement to ensure living conditions and gestation, reimbursement of living expenses, travel, medical care, etc. In turn, the surrogate mother is obliged to undergo medical examinations within the terms specified by the contract, follow the instructions of the attending physician, keep secret information about the conclusion of the contract, etc. Accordingly, other rights and obligations are established by the agreement of surrogate motherhood.

One of the main innovations of the Belarusian surrogacy model is the consolidation of provisions on the surrogacy contract. Article 21 of the Law of the Republic of Belarus No. 341-Z, as in the Russian Federation, does not fix the concept of a surrogacy contract. The surrogacy contract itself is concluded between a surrogate mother and a genetic mother or a woman who has used a donor egg. Based on such regulation, it can be said that only a married woman or a single woman can apply to the services of surrogacy. For single men, as well as in Russia, such a service is not available.

It is important to pay attention to the fact that the range of subjects is clearly limited and does not provide for the participation of the potential mother's husband in the conclusion of the contract. At the same time, it should be said that married persons conclude a surrogacy contract with the written consent of their spouses.

The essential conditions of the surrogacy contract deserve special attention. These include:

1) provision by one woman (surrogate mother) to another woman (genetic mother or a woman who used a donor egg) of services for carrying and giving birth to a child (children) conceived (conceived) with the participation of an egg (eggs) removed (withdrawn) from the body of a genetic mother, or a donor egg (eggs);

2) the number of transplanted embryos;

3) the cost of the service;

4) the procedure for reimbursement of medical expenses and other conditions.

Two essential conditions are the most important for borrowing into Russian legislation:

1) establishment of the surrogate mother's obligation to transfer the child and the period during which the transfer will take place;

2) the obligation of a genetic mother or a woman who used a donor egg to accept a child (children) from a surrogate mother after his (their) birth and the period during which the child (children) should be adopted.

The above conditions would allow the Russian legislator to exclude problematic situations related to the non-transfer of a child by a surrogate mother after his birth, allowing him to protect the rights of potential parents and fulfill their purpose for which they turned to such a method of ART.

As in the Russian Federation, Belarusian surrogacy can be carried out both on a reimbursable and gratuitous basis.

At the same time, a relative of the genetic mother or a woman who used a donor egg, or a relative of the spouse of the genetic mother or a woman who used a donor egg, can act as surrogate mothers, subject to gratuitousness. In this, the Belarusian legislation is very similar to the Ukrainian one, while such a provision is not fixed in the domestic law.

The most problematic issue in Russian surrogacy is the issue of establishing the origin of the child. If the RF IC stipulates that potential parents can be registered as parents of a child only with the consent of the surrogate mother, then in Belarus this problem was solved as follows.

In Article 52 of the Code of the Republic of Belarus "On Marriage and Family", it is imperative that "the mother of a child born by a surrogate mother is recognized as a woman who has concluded a surrogacy contract with a surrogate mother, and the husband of a woman who has concluded a contract with a surrogate mother is recognized as the father." At the same time, if a woman who has concluded a surrogacy contract with a surrogate mother is not married, information about the child's father is entered into the record of the birth certificate by the mother's surname, the child's father's own name and patronymic are recorded at her direction, except in cases where there is a joint statement of parents on the registration of paternity or a court decision about establishing paternity.

The parties to the contract, as well as their spouses, do not have the right to challenge maternity and paternity, except in cases where it is reliably known that the child was born without the use of ART.

Having analyzed the institute of surrogacy in Belarus, we can say that it is more progressive in comparison with the Russian one. Borrowing certain provisions would make it possible to eliminate the problems existing in Russian legislation. Thus, the experience of creating a single NPA dedicated to reproductive technologies shows how much more convenient this option of legal regulation is than fixing provisions in many legislative acts, which undoubtedly should become an example for the Russian legislator.

In addition, it is necessary to implement provisions in Russian legislation on the contract, in particular its notarization, fixing essential conditions, the possibility of participation as surrogate mothers of relatives, securing the rights and obligations for surrogate mothers and potential parents, especially those related to the mandatory transfer of a child by a surrogate mother and the adoption of a child by potential parents. It also seems logical to extend restrictions for adoptive parents as a criterion for preventing women from acting as surrogate mothers. One of the most important provisions necessary for consolidation in domestic legislation are the moments with the establishment of the child's origin. In general, this model is fair to both sides, and at the same time, it avoids many gaps existing in Russian law.

To date, there is no institute of surrogacy in Moldova. In 2012, when the Law of the Republic of Moldova No. 138 "On Reproductive Health" was adopted on June 15, 2012 ^[13], the provisions concerning surrogacy were excluded. Neither the above-mentioned law nor the Family Code of the Republic of Moldova ^[14] contain any mention of this ART method. The only indirect mention is found in Article 22 of the Law of the Republic of Moldova of April 26, 2001 No. 100-XV "On Acts of civil status" ^[15], which states that "when applying for the birth of a child who was born as a result of embryo implantation to a woman for the purpose of carrying a child, the spouses, together with a medical certificate stating birth, submit a document issued by a medical institution that confirms the fact of obtaining the consent of the woman who gave birth to the child to record the spouses making the application in the relevant documents as the parents of this child."

Thus, having analyzed the institute of surrogacy in the countries of the European region, I would like to note that in most of them surrogacy is more progressive than in the Russian Federation. Despite the presence of common features, it can be noted that in each of the countries, a certain model of surrogacy has developed. If the legislation of Ukraine regulates the requirements for potential parents in more detail, then the Belarusian legislation approaches in more detail the regulation of requirements for surrogate mothers, as well as contractual provisions.

In general, it should be noted that borrowing many provisions from the legislation of these countries would allow to develop the institution of surrogacy in the Russian Federation to unprecedented heights. In particular, fixing the provisions on the origin of the child, on the need for a notarized form of consent of husbands and a surrogacy contract, fixing the essential terms of the contract, establishing additional requirements for surrogate mothers and potential parents would allow to properly regulate the emerging relations, clearly define the rights and obligations of the parties, as well as create effective mechanisms for the protection of violated rights.