The only Mommy in the world?

Tatiana Starikova, Advocate, Head of Private Practice of the Law Firm "YUST"

While the method of surrogacy was developing, it gave birth to a much larger number of moral and legal problems than of medical ones. Of course, natural childbirth is absolutely necessary, but alternative methods and their regal governing also need to develop, and that development should be based on the principles of humaneness, reasonableness and fairness.

Having studied the results of a survey on surrogacy, Dmitry Nikitin, author of the article “Surrogate care” (New Advocate’s Newspaper, № 9, 2013), suggests expanding the existing family legislation with the following provisions:

- Paragraph 2 of clause 4 of Article 51 of the Family Code of Russia – by the provision: “Spouses may be registered as the parents of the child, who was born by a surrogate mother, on the latter’s consent as well as upon a judgment by a court”;

- Paragraph 3 of Article 52 of the FCRF – by the paragraph: “Spouses may contest their paternity and maternity, if there are circumstances, which prevent the due upbringing of the child by the surrogate mother”.

The author’s initiative to provide the genetic parents with the possibility to be registered as the parents of the child born by a surrogate mother on her consent as well as upon a judgment by a court is aimed at the expansion of legally ensured possibilities of the spouses, who agreed to the implantation of the embryo into another woman for carrying, to formalize the due legal connection to the child, who is their own biologically (genetically).

According to the current Russian legislation, the mother may refuse to deliver the child to the genetic parents without explanations. The author, referring to the special opinion of D.Knyazev, Judge of the Constitutional Court of Russia, who did not agree with the conclusions of the CCRF given in the determination No. 880-O dated May 15 of 2012 “On the refusal to accept for consideration the complaint by the citizens Ch.P. and Ch.Yu. of violations of their constitutional rights by the provisions of clause 4 of Article 51 of the Family Code of the Russian Federation and clause 5 of Article 16 of the Federal Law “On civil status acts”, the Court draws a motivated conclusion that the current legal regulation of surrogacy “does not provide for the possibility to balance the interests of the child, genetic parents, surrogate mother and her family members”.

The author’s suggestion to establish legal connection between the child and the genetic parents not only administratively (by obtaining the surrogate mother’s consent to deliver the child to the genetic parents and by subsequently filing a request with the civil registry office) but also on the basis of a court judgment is a reasonable proposition aimed at protecting the genetic parents from possible consequences of the surrogate mother’s unmotivated refusal to deliver the child to them.

However, the next initiative appears less thought-over and requiring additional analysis.

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The full text of the article is available at the printed version of the New Advocate’s Newspaper, No. 10, 2013.