CC BY
3УДК 347.63 Uronov V.U., Vakhitova G.V.
Uronov V.U.
Ufa University of Science and Technology (Ufa, Russia)
Vakhitova G.V.
Ufa University of Science and Technology (Ufa, Russia)
REGARDING THE ISSUE OF INHERITANCE RIGHTS OF A CHILD BORN THROUGH A SURROGATE MOTHER
Аннотация: in the article, the author highlights the main problems that arise during the calling for inheritance of a child born as a result of the surrogacy program. The study is based on a systematic analysis of legal norms, the integrated application of legislation of various industries, and the consideration of the fundamental principles of law. The conclusions contained in the work, presented ways to solve legal problems are of practical value and can be the basis of modern law enforcement.
Ключевые слова: hereditary law, surrogacy, assisted reproductive technologies, child protection.
Infertility is a major issue in the field of reproductive health. Modern advancements in medicine allow for the resolution of reproductive health problems through the use of assisted reproductive technologies, one of which is surrogacy. The increasing popularity of this method has presented a series of unresolved questions to legislators and legal practitioners. In particular, the conservative branch of Russian law, namely inheritance law, has not been reformed with the emergence of assisted reproductive technologies, leading to difficulties in legal application.
Surrogacy, as defined by law, involves the gestation and birth of a child (including premature birth) through a contract between a surrogate mother (a woman carrying a fetus after the transfer of a donor embryo) and prospective parents whose gametes were used for fertilization, or a single woman for whom gestation and birth of a child are not possible for medical reasons [1]. It should be noted that under the surrogacy agreement, the clients can also be a single man, as confirmed by the relevant judicial practice [2].
Thus, the clients have a genetic connection with the child, unlike the surrogate mother, and therefore should be recognized as the parents of such a child, following the rules of logic. However, according to paragraph 2 of article 51 of the Family Code of the Russian Federation, spouses who are married to each other and have given their written consent to the implantation of an embryo into another woman for the purpose of gestation can only be registered as the parents of the child with the consent of the woman who gave birth to the child (the surrogate mother) [3]. During the state registration of a child's birth upon the application of spouses who have consented to the implantation of an embryo into another woman for the purpose of gestating the child, a document issued by a medical organization confirming the woman who gave birth to the child's (the surrogate mother's) consent to register the aforementioned spouses as the child's parents must be submitted along with the document confirming the child's birth [4]. However, the law does not provide for the obligation of genetic parents to accept the child, which may result in the child being left without parents.
Based on the above, it is not possible to accurately determine who will be registered as the parents of the child until the state registration of birth is completed -the surrogate mother or the genetic parents (parent). At this stage, problems arise in connection with the child's inheritance, born through a surrogate mother. There are several scenarios for the emergence and resolution of such issues.
Option 1: The surrogate mother passes away after the birth of the child, but before giving consent to register the genetic parents as the child's parents. In fact, the lack of such consent automatically makes the surrogate mother the legal mother of
the newborn, including the child in her circle of heirs. If the genetic parents do not file a lawsuit to establish parental rights regarding the child in this case, in our opinion, interested parties (other heirs or potential heirs) may file a lawsuit challenging maternity, based on evidence indicating the surrogate mother's intent to transfer the child. Successful challenging of maternity in this case excludes the child from the circle of heirs.
Option 2: The death of the clients under the contract occurred before the state registration of birth, but the surrogate mother's consent is available. According to the meaning of the law, only the genetic parents can apply for state registration of birth, therefore, their death leads to the automatic registration of the surrogate mother as the mother of the child, hindering the child's inheritance rights from the genetic parents. Comparing the interests of the child in receiving any property and the interests of the child in having a family, it can be concluded that the latter takes priority. Therefore, in this case, it is impossible for the surrogate mother to register the child administratively or judicially as the child of the genetic parents. This violates the child's legal rights and interests. Consequently, such a child cannot inherit the property of the genetic parents. However, this does not prevent interested parties (for example, potential guardians with genetic ties to the child) from appealing to the court to challenge maternity, and only in this case will the child have the right to inheritance. If the deadline for accepting the inheritance is missed, it can be reinstated based on Article 1155 of the Civil Code of the Russian Federation [5].
Option 3. The child was conceived after the death of one of the genetic parents, with the consent of the surrogate mother. This situation is possible because the sexual cells of the genetic parents can undergo cryopreservation for a long time, and the IVF procedure for the surrogate mother can last for months. Article 1155 of the Civil Code of the Russian Federation states directly that in the presence of a conceived but unborn heir, the division of inheritance can only take place after the birth of such heir, meaning the mandatory condition is that the child was conceived at the time of the parent's death. In the situation we are considering, the child is still at the embryo stage in the test tube. The question arises whether the scope of Article
1155 of the Civil Code of the Russian Federation can be extended to apply to an embryo in a test tube. In our opinion, this question should be answered negatively, as it contradicts the law and could be a means of intentional unfair redistribution of inheritance shares.
Option 4. The death of one of the two genetic parents occurred before the state registration of the child's birth. In this case, one should follow the rule that in the presence of a conceived but unborn heir, the division of inheritance can only take place after the birth of such heir, even though the registration of the child as the child of the genetic parents may not take place at all. In this case, the fact of the state registration of the child's birth reopens the division of property.
Option 5. There is a problem of interpreting the will of the surrogate mother or genetic parent. The main question is how to interpret the concepts of "son", "daughter", "my child", "my children" used in the will. Do they exclusively refer to blood relation (such as between genetic parents and the child), legal relation (state registration as parents of genetic parents or surrogate mother), or does the fact of descent from a specific woman imply kinship between her and the child? In this case, a situation may arise where a child whose only legal parents are one gets inheritance from other "parents" (genetic or by descent) according to the will. We believe that in this case, the interpretation of the will should be literal, based on the provisions of the law, taking into account legal kinship. This should be clarified by a notary at the stage of making the will [9, p. 204].
At the current stage of legal regulation development of surrogacy, the stated problems can be resolved in the manner we indicated: through systemic interpretation and comprehensive application of legislation, as well as by applying fundamental legal principles. However, it should be noted that avoiding such situations could have been much simpler by withdrawing the right of the surrogate mother to keep the child and clearly defining parental rights and obligations for genetic parents, which is the direction modern practice is moving towards [6].
СПИСОК ЛИТЕРАТУРЫ:
1. Federal Law of 21.11.2011 No. 323-FZ "On the Fundamentals of Health Protection of Citizens in the Russian Federation" // Official Internet Portal of Legal Information. URL: http://www.pravo.gov.ru/ (accessed on: 10.10.2022);
2. Decision of Babushkinsky District Court of Moscow dated August 4, 2010, in civil case No. 2-2745/10. The document has not been published. Access from the legal system "ConsultantPlus.";
3. Family Code of the Russian Federation of 29.12.1995 No. 223-FZ // Official Internet Portal of Legal Information. URL: http://www.pravo.gov.ru/ (accessed on: 10.10.2022);
4. Federal Law of 15.11.1997 No. 143-FZ "On Acts of Civil Status" // Official Internet Portal of Legal Information. URL: http://www.pravo.gov.ru/ (accessed on: 10.10.2022);
5. Civil Code of the Russian Federation (Part Three) of 26.11.2001 No. 146-FZ // Official Internet Portal of Legal Information. URL: http://www.pravo.gov.ru/ (accessed on: 10.10.2022);
6. Draft Resolution of the Plenum of the Supreme Court of the Russian Federation 2017 "On the Application of Legislation by Courts When Considering Cases Related to Establishing the Origin of Children" // Zakon.ru. URL: https://zakon.ru/discussion/2017/4/27/geneticheskim_roditelyam_dobavlyayut_zaschity_ot_surroga tnyh_materej_plenum_vs_obsudil_problemy_ust (accessed on: 10.10.2022);
7. Telegina E.G., Gratsko A.A. Problems of establishing parental rights and rights of children in the institution of surrogacy // Bulletin of Lobachevsky University of Nizhny Novgorod. 2018. № 5. P. 110-119;
8. Demina I.A. Legal issues of surrogacy // Science. Society. State. 2020. № 5. P. 344-352;
9. Chekashkina M.Yu., Subbotin E.O. The problem of determining the inheritance rights of children born through in vitro fertilization // Scientific research and developments of young scientists. 2016. № 9. P. 202-211
