The Constitutional Court of the Russian Federation dealt with the subject of surrogate motherhood

Advocate Tatiana Starikova, Head of Private Clients Practice
Ekaterina Shestakova, Lawyer

The supreme court instance of Russia has for the first time approached the delicate theme of surrogate motherhood by considering a dispute between a child’s genetic parents and the surrogate mother. One of these days, the decision was published on the website of the Constitutional Court of the Russian Federation, dismissing the complaint by the claimants – a married couple – against an alleged violation of their constitutional rights concerning the upbringing of children by the provisions of the Family Code of the Russian Federation.

The case was the following. The spouses were unable to have children and resorted to the so-called surrogate motherhood procedure: they entered into an agreement with a woman, who agreed to bear the child genetically issued by the parents, and give it to them after the birth. However, after the delivery, the surrogate mother registered the child with the Civil Registry Office as her own, and the genetic parents, deprived of any other ways to protect their rights, resorted to court.

The Constitutional Court decided that the Family Code provisions, which require an obligatory consent by the surrogate mother to the registration of the genetic parents with the Civil Registry Office as such, violated no constitutional rights of the claimants. In this connection, their complaint was dismissed.

The Court alleged that such “model of legal regulation is not the only possible one, but does not lie beyond the scope of lawmaking authority of the federal lawmaker” and allows the woman, who bore the child, to exercise the rights and duties of a mother.

Special opinion

However, two judges did not agree with the position of the Constitutional Court of Russia as a whole. They noted that the Court was able to consider the claim, since the provisions of the Family Code and of the Federal Law on Registration of Civil Cases “are inconclusive in the matter of their compliance with the Constitution of the Russian Federation”.

As stipulated by the Civil Code of the Russian Federation, rights and duties of parents and children are based on the origins of the children registered according to the legally fixed procedure, that is – according to the procedure of birth registration with the Civil Registry authorities. If the surrogate mother’s right to determine, at her own discretion, who is to be the child’s father and mother, is acknowledged, this will disrupt the balance on the constitutional values and bring “the denial of rights and legal interests not only the genetic parents, but also of the child born as the result of a respective auxiliary reproduction technology”.

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Full version of the publication is available here.