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1УДК 347.6
SURROGACY MODEL IN ACCORDANCE WITH THE LEGISLATION OF THE
REPUBLIC OF BELARUS
ALENA BASALAI
Lecturer at the European Humanities University, Vilnius, Republic of Lithuania
Annotation. The article discusses the main provisions of the legislation of the Republic of Belarus on surrogate motherhood. The main normative legal acts that fix the general provisions on surrogate motherhood are set out. The concept of surrogate is considered. motherhood, its main features are stated. A list of entities that have the right to apply for surrogacy services is indicated. The concept of a surrogate mother is considered and the main criteria for her are indicated. The provisions of the legislation regulating the storage and use of gametes and embryos, including unclaimed ones, are analyzed. The analysis of the model of legal regulation of surrogacy in the Belarusian legislation shows the strictness and consistency of the prescriptions and allows us to conclude that there is legal certainty on a number of debatable issues.
Keywords: assisted reproductive technologies (ART), infertility of citizens, surrogacy, genetic parents, ART method, genetic material, gamete donation, embryo storage.
The Republic of Belarus is one of the few countries in which surrogacy is not only allowed, but also a special law on the use of assisted reproductive technologies has been adopted [1]. Of all the existing methods of assisted reproduction, surrogacy remains the most controversial method, which is confirmed by a wide variety of approaches to legal regulation in national legal orders, from a complete ban (Germany, France) to an extended one regulation and development of the relevant sphere of medical services (Ukraine, Israel). In Belarus, surrogacy is legalized on a paid and gratuitous basis, which creates additional research interest and the need to assess the national order of legal regulation.
In the Republic of Belarus, for the first time at the legislative level, surrogacy was enshrined in 2006 in the «Code on Marriage and Family» (hereinafter referred to as the Marriage and Family Code), amendments were made, and a corresponding Article 53 - „Surrogate Motherhood" appeared in it. Subsequently, this article became invalid and the main norms on surrogate motherhood were concentrated in a special law.
The concept of surrogacy is given in Article 1 of the Law of the Republic of Belarus «On Assisted Reproductive Technologies», dated 07.01.2012 № 341-3 (Law of ART), according to which it is a type of assisted reproductive technologies, consisting in the union of a sperm and an egg extracted from the body of a genetic mother, or a donor egg outside the woman's body, the development of the embryo formed as a result of this connection, further transfer of this embryo into the uterus of a surrogate mother, gestation and birth of a child. A surrogate mother is a woman who, under a surrogacy agreement, carries and gives birth to a child who is not a carrier of her genotype.
The definition of the concept of surrogate motherhood is one of the most controversial. This is primarily due to the presence of very different approaches on the part of the national legislator to the problem. In England, surrogacy is the process of bearing a child by a woman who has entered into an agreement with spouses who cannot have or carry a child. This definition contains a medical criterion, the right to use this method can be given to spouses who cannot conceive or carry a child.
In Australia, the concept of surrogacy is seen as an agreement whereby a woman (surrogate mother) agrees to carry and give birth to a child for another person/people (future designated parents) who will receive the child after its birth. The approach of the Australian legislator considers surrogacy as an agreement where there is no medical criterion.
The main differences in legal regulation are based on the criteria regarding the conditions for the use of surrogate motherhood (infertility, social criterion), the range of persons who can resort to
the use of the method (persons who are married, in other forms of marital unions, unmarried persons), and the limit of admissibility of the use of donor gametes [3].
In the Belarusian legislation, the approach to determining the circle of persons who can use surrogacy can be called balanced. A child born from a surrogate mother must have a genetic relationship either with the future mother or with the father [1, Article 20]. Both married and unmarried women can resort to the procedure. In the scientific literature, gender imbalance is repeatedly mentioned due to the lack of opportunities for a single man to exercise the right to fatherhood through surrogacy.
The main criteria for the use of this type of ART are medical indications, the inability to carry and (or) give birth to a child on your own [1, Article 6]. The Decree of the Ministry of Health of the Republic of Belarus dated 24.12.2019 № 124 established a list of medical indications for the use of assisted reproductive technologies, approved the Instruction on the procedure for conducting a medical examination of a patient in respect of whom assisted reproductive technologies are supposed to be used [4].
The ART Law provides for the use of donor cells in surrogacy. The donor in relation to the patient can be anonymous and non-anonymous. Only a patient's relative can be a non-anonymous donor (in relation to the patient - her female relative, in relation to the patient - his male relative). A sperm donor can be a man aged 18 to 50 years inclusive, who has no medical contraindications to sperm donation and has undergone a medical examination. An anonymous egg donor can be a woman aged 18 to 35 years inclusive, who has a child, has no medical contraindications to egg donation and has undergone a medical examination [1, Article 9].
A non-anonymous egg donor can be a woman aged 18 to 49 years inclusive, who has a child, has no medical contraindications to egg donation and has undergone a medical examination. This norm cancels the general approach of the legislator on the anonymity of gamete donation T.E. Borisova notes that there are cases when mothers carried children for their childless daughters [5]. This exception really creates conditions for the possibility of participation in surrogacy relations of the mother of an infertile woman. It is this resolution of the issue that raises the least number of questions from an ethical point of view.
A person who has committed a grave, especially grave crime against a person is deprived of the right to be a donor.
The selection of an anonymous donor is carried out according to the catalog containing a description of anonymous donors, information about which is included in the unified register of germ cell donors. The description of an anonymous donor contains information that does not constitute medical confidentiality: age, height, weight, hair and eye color, race and nationality, education, blood type, Rh factor. It is assumed that the possibility of choosing according to a number of these criteria makes it possible to ensure the external similarity of the child with potential parents, which is aimed at protecting the interests of the minor [1, Article 17].
The procedure for medical procedures, requirements for a surrogate mother, the terms and content of the surrogacy agreement are regulated in sufficient detail by law.
The procedure can be carried out in a health care organization provided that it obtains a special permit (license), which is designed to ensure proper control during the implementation of procedures. The process of medical procedures is carried out on the basis of protocols and documentation of information.
The patient's rights in the use of surrogacy extend to obtaining complete and reliable information about the state of his reproductive health, about the ART used, effectiveness, optimal timing of their use, possible risk, side effects and complications, medical and legal consequences, as well as about alternative methods of medical care. Also, the patient retains the right to use donor germ cells, to choose a surrogate mother [1, p. 9-11].
For the use of donor cells (both male and female) in surrogacy, the legislator establishes a restriction: germ cells of one donor can be used in no more than 20 attempts at fertilization [1, Part 2, Article 9]. The norm is aimed at preventing in the future, for example, the risk of consanguineous
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marriages by children born from one anonymous donor. The recent statement by the founder of the social network Telegram about the possible paternity of at least 100 children requires the legislator, in addition to limiting the number of attempts at ART using gametes from one donor, to take other effective measures [6]. Such an example, unfortunately, is not an isolated one.
Donor germ cells can be used to provide medical care to a patient for whom assisted reproductive technologies are used. With regard to the fate of donor germ cells that are not claimed as a result of the use of assisted reproductive technologies, a norm has been established on the possibility of their use for research purposes [1, Part 2, Article 9]. In case of non-anonymous donation, his consent is required. The consent of an anonymous donor for the use of his germ cells for research purposes is not required.
The general approach, which considers gamete donation as anonymous, involves the presence of provisions for the protection of information about persons whose genetic material was used in the use of a certain type of ART, for this there is the concept of reproductive secrecy. Reproductive secrecy, which includes information about ART, as well as the identity of the patient, the donor, is not subject to disclosure, which contradicts the child's right to know about his genetic origin, but provides the task formulated by law [1, Article 7].
The use of the surrogacy method involves the formation of a bank of genetic material, with the need to store genetic material and embryos as well. Since the embryo contains the potential of human life, the issues of cryopreservation, timing and other storage issues cause a lot of discussion. The most sensitive issue is the fate of unclaimed germ cells and embryos.
According to Article 16 of the Law on ART, the patient has the right to store germ cells and embryos. The right to store germ cells is also granted to persons who do not have medical indications for the use of assisted reproductive technologies determined by the Ministry of Health.
Storage of germ cells, embryos is carried out in health care organizations after their cryopreservation. When placing germ cells, embryos for storage, the health care organization, in agreement with the patient, must determine: the storage period of germ cells, embryos; method of cryopreservation of germ cells, embryos; the procedure for the use of germ cells, embryos. The conditions for cryopreservation of germ cells, embryos, as well as the procedure for their storage are determined by the Ministry of Health.
Embryos that are not claimed as a result of the use of assisted reproductive technologies can be used to improve the use of assisted reproductive technologies, if the period of their development does not exceed 14 days, and with the written consent of patients with the participation of whose germ cells embryos were formed. The consent of an anonymous donor to the use of embryos formed with the participation of his germ cells is not required to improve the use of assisted reproductive technologies [1, Article 18]. The legislator prohibits the use of embryos for research purposes. The question naturally arises about the distinction between the concepts of „use for research purposes" and „use for the improvement of assisted reproductive technologies".
The lack of strict prescriptions regarding the fate of unclaimed germ cells and especially embryos can give rise to a huge number of problems (for example, the case of Evans v. the United Kingdom)[7].
The provisions of Belarusian legislation provide that in the event of divorce or recognition of its invalidity, the use by former spouses of each other's germ cells that are not claimed as a result of the use of assisted reproductive technologies is prohibited. This excludes the occurrence of a huge number of disputes. The use of cells from a patient who has died or has been declared dead by a court is also prohibited.
The transfer of embryos that are not claimed as a result of the use of assisted reproductive technologies to another patient is prohibited.
According to Article 20 of the Law on ART, surrogacy is applied on the basis of a surrogacy agreement. The subject composition of the surrogacy agreement is strictly defined. A surrogacy contract is concluded between the surrogate mother and the genetic mother or the woman who used
the donor egg in writing and is subject to notarization. Married persons enter into a surrogacy contract with the written consent of their spouses.
The law establishes a list of essential terms of the contract. These include the provision by one woman (surrogate mother) to another woman (genetic mother or woman who used a donor egg) of a service for carrying and giving birth to a child (children) conceived with the participation of an egg (eggs) removed from the body of a genetic mother, or a donor egg (eggs);
the number of embryos that will be transferred to the uterus of the surrogate mother; indication of the health care organization (organizations) in which the combination of the sperm (spermatozoa) and the egg (eggs) removed from the body of the genetic mother, or the donor egg (eggs) will take place, the transfer of this embryo (embryos) to the uterus of the surrogate mother, monitoring the course of her pregnancy and childbirth;
the obligation of the surrogate mother to comply with all the instructions of the attending physician and provide the genetic mother or the woman who used the donor egg and her spouse with information about the state of her health and the state of health of the child (children) being carried; the place of residence of the surrogate mother during the period of bearing the child (children); the obligation of the surrogate mother to transfer the child (children) to the genetic mother or the woman who used the donor egg after his/her (their) birth and the period during which the said transfer should be made;
the obligation of the genetic mother or the woman who used the donor egg to accept the child (children) from the surrogate mother after his/her (their) birth and the period during which the child (children) must be adopted;
the cost of the service provided by the surrogate mother under the surrogacy agreement (except for cases when the surrogacy agreement is concluded free of charge);
the procedure for reimbursement of expenses for medical care, food, accommodation of a surrogate mother during gestation, childbirth and in the postpartum period [1, Article 21].
Many countries have a very negative attitude towards commercial surrogacy. The Casablanca Declaration of March 3, 2023, signed by 100 experts from 75 nationalities, calls for the condemnation of surrogacy as such and proposes to take concrete measures to completely ban [7]. Nevertheless, the problem of infertility is growing, and modern science does not offer other ways to overcome it. As a result, citizens from countries where surrogacy is prohibited apply for services in countries where it is allowed. Legal contradictions and gaps that arise on the way to legalizing children born through cross-border surrogacy never serve the best interests of the child. As a result, it is the child who finds himself in the most difficult situation.
Belarusian legislation directly provides that a surrogacy contract can be concluded on a paid basis. A gratuitous surrogacy contract is concluded in cases where the surrogate mother is a relative of the genetic mother or the woman who used the donor egg, or the relative of the spouse of the genetic mother or the woman who used the donor egg [1, Article 21].
The legal certainty of the Belarusian legislator in determining the establishment of the origin of children practically excludes the occurrence of disputes. In this case, the legislator does not follow the principle of Mater semper certa est, but proceeds from the purpose of applying the ART procedure. The mother of a child born by a surrogate mother is a woman who has entered into a surrogacy agreement with a surrogate mother. registration of birth in the registry office and issuance of a birth certificate. The father of a child born by a surrogate mother is the spouse of a woman who has entered into a surrogacy agreement with a surrogate mother. If a woman who has entered into a surrogacy agreement with a surrogate mother is not married, information about the child's father is entered into the birth record according to the mother's words [3, Article 52].
A surrogate mother, a woman who has entered into a surrogacy agreement with a surrogate mother, as well as their spouses who have given their consent to conclude a surrogacy agreement in accordance with the established procedure, are not entitled to challenge the maternity and (or) paternity of a child born by a surrogate mother. An exception to the rule is if the surrogate mother did not become pregnant as a result of the use of assisted reproductive technologies, the general rule on
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challenging applies [2, Article 52]. Based on the general assessment of the above norm, it follows that the consent of the mother's husband to the use of surrogate motherhood is not subject to dispute and is the basis for the establishment of legal relations between the child and the father. However, this list does not mention the child, who in ordinary cases of challenging the registration of parents is endowed with such a subjective right. since the absence of blood relationship when using donor cells is initially known and is a condition for the use of ART. In this regard, the reason for not including the child in the list of persons who cannot challenge the parent's record is not entirely clear.
The model of surrogacy adopted in the Belarusian legislation is based on a liberal approach, contains a sufficient number of permits, and the regulation is detailed and there is legal certainty. The discussion is maintained from the point of view of assessing the institution from the point of view of family values, religion, morality and other criteria.
REFERENS:
1. Закон Республики Беларусь «О вспомогательных репродуктивных технологиях»? 07 янв. 2012 г. № 341-3 [Электронный ресурс] / Нац. центр правовой информ. Респ. Беларусь. -Минск, 2024.
2. Кодекс Республики Беларусь о браке и семье от 9 июля 1999 г № 278-3 // ЭТАЛОН. Законодательство Республики Беларусь [Электронный ресурс] / Нац. центр правовой информ. Респ. Беларусь. - Минск, 2024.
3. Сорокина, Т. В. Суррогатное материнство: понятие и критерии его определения [Электронный ресурс] // Legal Concept. 2010. №2-13. - Режим доступа: https://cyberleninka.ru/article/n/surrogatnoe-materinstvo-ponyatie-i-kriterii-ego-opredeleniya -Дата доступа: 09.07.2024.
4. Постановление Министерства здравоохранения Республики Беларусь от 24.12.2019 № 124 «О вопросах применения вспомогательных репродуктивных технологий» // ЭТАЛОН. Законодательство Республики Беларусь [Электронный ресурс] / Нац. центр правовой информ. Респ. Беларусь. - Минск, 2024.
5. Борисова Т.Е. Суррогатное материнство в РФ: проблемы теории и практики: Монография. М., 2012.
6. Telegram CEO says he has 100 biological kids; Elon Musk gives this reaction. - Режим доступа: https://www.business-standard.com/technology/tech-news/telegram-ceo-says-he-has-100-biological-kids-elon-musk-gives-this-reaction-124073100963_1.html- Дата доступа: 30.07.2024.
7. Постановление ЕСПЧ от 10 апреля 2007 г. «Дело "Эванс (Evans) против Соединенного Королевства"» (жалоба № 6339/05).
8. Casablanca Declaration of 3 March 2023. - Режим доступа: https://declaration-surrogacy-casablanca.org/rome-2024/- Дата доступа: 30.07.2024.
