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    Legal aspects in European countries

    Legal aspects in European countries

    A Global View of Surrogacy Law

    Most western countries’ governments vote for the complete prohibition of all surrogacy arrangements, and in some jurisdictions civil and criminal penalties apply for the people, who enter in these kinds of arrangements. All surrogacy arrangements are prohibited, despite whether they are based on the altruistic or commercial purposes. But another point of view is to release the law that would accept the surrogacy, based purely on the altruistic purpose, and prohibit commercial surrogacy.

    Surrogacy in Italy

    Italian legislation in the field of assisted reproductive technologies is quite conservative. Italian law of February 19, 2004, № 40 “On norms of assisted reproductive technologies” not only totally prohibits surrogacy, but also greatly limits other reproductive technologies.
    According to the Law № 40 “On norms of assisted reproductive technologies” of 19 February 2004, Italians have the right to use methods of artificial insemination only providing medical certificate about infertility. In addition, reproductive programs that involve a third party, that is, surrogacy and donation, are prohibited. In the case of use of such methods violating the law, gametes’ donor, for example, does not have any parental rights.

    Italian legislation provides imprisonment for a term from three months to two years and a fine from 600,000 to 1 million euro to those who in any way produce, organize and promote donation or surrogacy in Italy, but Italian citizens are not prohibited to use such methods abroad.

    It should be noted that use of the IVF procedure in Italy is absolutely legal, though, it applies only to married couples. Moreover, most of reproductive programs are made at the expense of the state.

    Surrogacy in Germany

    In Germany, surrogacy is strictly prohibited. In 1991 the “Law on the Protection of embryos” was passed. According to it, any attempt to make IVF of a woman who is to give up a child after his birth (surrogate mother), or implant a human embryo is a crime. According to Section 1 of the Act, operations related to surrogacy, should be punished with imprisonment up to 3 years (or fine). However, this rule does not concern surrogate mothers and customers, but medical staff. In addition, “Law banning the mediation in surrogacy” prohibits mediation in surrogacy (Section 13) and advertising of surrogate motherhood (paragraph 13).

    Surrogacy in France

    Most national laws restrict surrogacy because of numerous ethical and religious aspects that concern this issue. In France, it is forbidden completely. For residents of France surrogacy is illegal because it is contrary to the law on adoption. It is not allowed in countries with traditionally strong Catholic Church.

    Surrogacy in Azerbaijan

    There is no law on surrogacy in Azerbaijan. Today, hardly any married couple in Azerbaijan can use services of a surrogate mother. The reason is the lack of such notion as “surrogate mother” in Azerbaijan legislation. In this regard, many Azerbaijan couples who can not have children and for whom surrogacy is the only way to solve this problem have to go to other countries where this procedure is legal. For most Azerbaijan citizens, the best solution is to look for a surrogate mother in Ukraine, where surrogacy is prescribed by law and which subsequently have no problem with a view to make the child as their own.

    Surrogacy in Spain

    According to the law on assisted reproductive technologies in Spain it is allowed the following methods:

    • Donation of sperm and egg cells;
    • application of these technologies for single women;
    • change (decrease) the number of embryos in the uterus in the case of triple pregnancy;
    • money reward to donors of sperm and egg cells;
    • conducting of genetic diagnosis of embryo before its transfer into the uterus.

    It is prohibited on the territory of Spain:

    • Arbitrary selection of sperm/ egg cells donor, as medical staff has a right for choice, taking into account looks of patient and compatibility of blood groups;
    • in the case of donation anonymity is preserved bilaterally. Relatives, friends and acquaintances of the patient can not be donors;
    • baby’s sex selection, except cases of genetic diseases prevention associated with sex;
    • use services of a surrogate mother;
    • destruction of frozen embryos that were not used for the patient during in-vitro fertilization. These embryos can stay frozen during patient’s reproductive life, given to other patients or intended for research purposes.

    Surrogacy is prohibited in Spain, although it is not criminally liable.

    Surrogacy in the USA 

    Surrogacy laws in the United States of America are different, depending in what state you are in. At the moment, only in eight American states surrogacy is a legal procedure. They are Nevada, Utah, Texas, Florida, Tennessee, Illinois, New Hampshire and Virginia. As for the other states, laws on surrogacy differ from each other in some ways.

    Alabama No direct laws. In one of the cases legal rights of intending parents have been recognized.
    Alaska Law Silent
    Arizona Prohibits all kinds of surrogacy-gestational, traditional and commercial
    Arkansas Legal recognition to Surrogacy contracts. But no specifications for homosexual couples.
    California Recognizes surrogacy agreements and state’s Uniform Parentage Act is used to solve cases.
    Colorado No direct laws
    Connecticut No laws but cases decided have been surrogacy supportive
    Delaware Silent law and cases decided have been unfavorable
    District of Columbia All types of surrogacy agreements are prohibited
    Florida Allows both traditional and gestational surrogacy, but only to heterosexual couples.
    Georgia No laws and no published cases pertaining to surrogacy
    Hawaii No laws and no published cases pertaining to surrogacy
    Idaho State laws silent. Case laws suggest acceptance of surrogacy for heterosexual couples.
    Illinois Gestational surrogacy is allowed. Traditional surrogacy and surrogacy for same sex couples is not recognized.
    Indiana All kinds of surrogacy agreements are unenforceable by law.
    Iowa Implicit acceptance of surrogacy but no direct laws. Surrogacy agreements for homosexual singles and couples have not yet been considered.
    Kansas Law Silent
    Kentucky No direct laws. Supreme court case suggests acceptance of non-commercial surrogacy. Surrogacy agreements for homosexual singles and couples have not yet been considered.
    Louisiana Paid traditional surrogacy agreements are void and other types of surrogacy agreements have not been recognized.
    Maine No laws and no published cases pertaining to surrogacy.
    Maryland No direct laws. Indirect laws suggest commercial surrogacy agreements as enforceable. Surrogacy agreements for homosexual singles and couples have not yet been considered.
    Massachusetts Laws silent. Published cases have surrogacy supportive. Surrogacy agreements for homosexual singles and couples have not yet been considered.
    Michigan All surrogacy agreements are prohibited.
    Minnesota No laws and no published cases pertaining to surrogacy. But an unpublished case suggests that law would be favorable toward surrogacy.
    Mississippi No laws and no published cases pertaining to surrogacy
    Missouri No direct laws. Surrogacy agreements for homosexual singles and couples have not yet been considered.
    Montana No laws and no published cases pertaining to surrogacy.
    Nebraska Commercial surrogacy is prohibited. Surrogacy agreements for homosexual singles and couples have not yet been considered.
    Nevada Law permits surrogacy to married couples. Nevada Domestic Partnership Act however implicitly legal enforceability of surrogacy agreements for homosexual, bisexual and transgender couples.
    New Hampshire Surrogacy agreements are allowed. But no clarity on issue of enforceability surrogacy agreements for homosexual, bisexual and transgender individuals.
    New Jersey Allows altruistic surrogacy but surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    New Mexico Allows altruistic surrogacy but surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    New York All types of surrogacy agreements for all kind individuals are void and unenforceable.
    North Carolina No direct laws. Other laws seem to accept altruistic surrogacy agreements. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    North Dakota Laws prohibit traditional surrogacy but gestational surrogacy is allowed. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    Ohio Undecided laws. Some court decisions indicate legal acceptance of surrogacy.
    Oklahoma No direct laws. But opinion of an Attorney general indicates non-acceptance of commercial surrogacy and a favorable review of altruistic surrogacy with reasonable expenses to surrogate. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    Oregon Altruistic surrogacy is allowed. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    Pennsylvania Ambiguous laws.
    Rhode Island No direct laws. But approval of some forms of surrogacy is suggestive from the laws. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    South Carolina No laws pertaining to surrogacy. Case law suggest acceptance of surrogacy contracts. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    South Dakota No laws and no published cases pertaining to surrogacy
    Tennessee Law seems to give legal recognition to surrogacy agreements. Surrogacy is defined as when a surrogate bears a child for a married couple. So approval of surrogacy agreements for bisexual, homosexual and transgender individuals is ruled out.
    Texas Law allows gestational surrogacy, but not to same sex couples.
    Utah Law allows gestational surrogacy, but not to same sex couples.
    Vermont A case indirectly suggests acceptance of surrogacy. The same case also suggests allowance of surrogacy to homosexual, bisexual and transgender individuals and couples.
    Virginia Altruistic surrogacy is allowed, but to heterosexual couples only. Homosexual couples are not allowed to enter surrogacy agreements.
    Washington Commercial surrogacy is prohibited. Altruistic surrogacy is permitted and with payment of certain expenses to the surrogate. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    West Virginia No direct laws. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    Wisconsin No direct laws. A court decision has been supportive. Surrogacy agreements for homosexual, bisexual and transgender individuals have not yet been considered.
    Wyoming No laws and no published cases pertaining to surrogacy

     

    Surrogacy in the United Kingdom of Great Britain

    Officially, surrogacy procedure is not illegal in the United Kingdom of Great Britain but it is restricted by different official rules and norms which allow only informal and non-commercial surrogacy agreements. It is strongly prohibited to advertise in Great Britain that you are looking for a surrogate mother, willing to be a surrogate mother or a third party willing to facilitate the making of a surrogacy arrangement.

    Clinics of reproductive medicine in the United Kingdom cannot help citizens find a surrogate mother, and there are no professional surrogacy agencies there. It is not an offence to agree to make or receive a commercial payment if you are an intended parent or a surrogate mother but it is an offence to profit by helping someone else to make surrogacy agreements.

    Surrogacy in the UK is not subject to regulation, although, if you go through the IVF procedure or other treatment at a licensed clinic of reproductive medicine, your fertility treatment is regulated by the Human Fertilization and Embryology Authority. But surrogacy agencies in the UK are not currently licensed or regulated.

    Surrogacy in China

    Ministry of Health of china banned surrogacy in 2001, stipulating that medical institutions would be warned and fined for illegal conducting of surrogacy procedures. As a result this ban made it impossible for women struggling with infertility to legally have a long-awaited child with a help of surrogate mother. After numerous discussions, surrogacy was found as a technique that embodies unavoidable social and ethical issues, since the newborn baby belongs to the individuals who provided their gametal sells, from genetic point of view, but it is deemed to be very difficult to judge who the real legal mother of the child is. Nowadays there are approximately 500 surrogacy agencies across China, and many of them are recruiting surrogate mothers. However it is not legal and doing such procedure in China will not provide you official security, safety and legally correct documents and agreements.

    Surrogacy in Russian Federation

    There is the Federal law “On Basics of Health Protection of Citizens of the Russian Federation”, which grants couples (including those who have not been officially married) and single women the right to participate in the surrogacy program.  At the same time, the surrogacy law does not stipulate that same-sex couples can take part in such program.  In addition, Article 51 of the Family Code of the Russian Federation states that “Couples, who have given their written consent for the implantation of an embryo to another woman for the purpose of carrying it to term, can be registered as parents of the child only with the consent of the woman who gave birth to that child (the surrogate mother)”.

    Article 52 of the Family Code of the Russian Federation states that “neither the spouses, who have given their consent for the implantation of an embryo to another woman, nor the surrogate mother have the right to invoke these circumstances when contesting the parentage after the parents have been entered into the register of births.”

    The law “On Civil Status Acts” states that “During the official registration of the birth of a child on application of the spouses, who had given their consent for the implantation of an embryo to another woman for the purpose of carrying it to term, a document, issued by a medical organization in confirmation of the consent obtained from the woman, who gave birth to that child (the surrogate mother), for registering said spouses as the child’s parents must be presented concurrently with the document confirming the birth of the child.”

    In addition, the surrogacy procedure is also regulated by the Order of the Ministry of Health of the Russian Federation, which, among other things, includes a number of requirements placed on surrogate mothers, as well as the scope of the required examinations that a surrogate mother and genetic parents must undergo.

    Surrogacy in Kazakhstan

    In Kazakhstan, there is no ban on conducing of a “surrogate motherhood” program, but there is no still legal framework regulating this relationship. There are only two articles in the Law “On Marriage and Family” on this subject, and they bear only reference nature.

    Thus, in accordance with the Article 49 of the Law “On Marriage and Family” legal regulation of surrogacy and artificial insemination methods determined by the laws of the Republic of Kazakhstan. That is why the bill on reproductive rights and guarantees of their implementation contains a special article 15, on surrogacy.

    Article 15. Surrogacy

    1. Surrogate motherhood: involves conceiving, bearing and birth under the contract between the surrogate mother and the potential genetic parents with fee or without it.
    2. Surrogacy contract: is an agreement between persons who wish to have a child and a woman, which gave its consent to the use of artificial insemination or embryo implantation.

    Surrogacy agreement must contain: information from anyone wishing to have a child and women who wish to become a surrogate mother; terms and conditions of payment of material cost of the surrogate mother; rights, duties and responsibilities of both parties; conditions and measures for a surrogate mother in the case of not sending her child born persons to enter into the contract, as well as to those persons in the event of non-acceptance of the child; other conditions determined by agreement of the parties.

    Surrogacy contract must be in written form and notarized. Termination of the surrogacy is possible in case of abuse surrogate regime of pregnancy.

    Surrogacy in Belarus

    According to the Belarus law 53 “Code of marriage and families”,Belarus women can be a surrogate mother and the right regulations gives a possibility to provide such services on the same conditions for a foreigners. The list of concrete medical activities, contract signing with surrogate mother, managing the relationship of genetic parents and surrogate mother and all other juridical aspects connected with IVF is based on resolution of Ministry of health of the Republic of Belarus №71.

    Today in Belarus artificial insemination and surrogate motherhood is allowed. Virtually all issues are resolved at the legislative level, a separate law and a whole list of different regulations. However, this situation does not suit everybody. Catholic and Orthodox churches have put forward a proposal to the draft law “On the protection of health” add to ban abortion, surrogacy and sex change operations in order to strengthen demographic security. Roman Catholic Church and the Belarusian Orthodox Church offer a level of legislation to prohibit surrogate motherhood, abortion and sex change operations at the request of the patient.
    In addition, the Orthodox and Catholics propose that the law “On the protection of health” rule of inadmissibility of sterilization as a method of contraception – it can only allow for medical reasons, if there is a threat of a woman’s life. And the possibility of surrogacy (even on non-profit basis) proposed to exclude from the bill. Representatives of religions advocate the complete exclusion of the possibility of abortion (abortion), and the use of any reproductive technology, contrary to moral principles.

    Surrogacy in Romania

    In Romania, there are no specific laws concerning surrogate mothers. The very concept of surrogate mothers makes way for moral debates: the mother that has given birth to the child would consider the baby to be her own, while the biological mother might live under the impression that, in a way, it’s not her child. From a legal point of view, the birth mother has all legal rights over the infant (the mother’s name in the birth certificate, according to the Family Code, must be that of the woman who has actually given birth – and this aspect cannot be argued with, by law). Legally, only reproductively challenged women have the right to use a surrogate mother.

    Surrogacy in Bulgaria

    Surrogacy was previously illegal in Bulgaria, but as the procedure is still practiced illegally, the government decided to sanction it. Instead of using the term surrogate, though, Bulgaria calls it the “substitute mother.” It is reported by few of the newspapers that Bulgaria is all set to amend its presently existing Health Act allowing surrogacy. Surrogacy is illegal in Bulgaria with the presently existing legal system. It is stated that the amendments would enable women aged between 25 and 45 years of age to be surrogate mothers. It was also decided that any woman would not be able to act as a surrogate mother more than twice and the amendment also provides for a register of the surrogate mothers in Bulgaria. According to the proposed legislation, surrogacy can be chosen only for medical factors resulting in infertility.