TAKING HUMAN REPRODUCTIVE RIGHTS SERIOUSLY: THE RUSSIAN PERSPECTIVE Текст научной статьи по специальности «Право»

TAKING HUMAN REPRODUCTIVE RIGHTS SERIOUSLY: THE RUSSIAN PERSPECTIVE

ANASTASIA MALESHINA,

Lomonosov Moscow State University (Moscow, Russia)

https://doi.org/10.17589/2309-8678-2020-8-1-25-59

The very idea of human reproductive rights seems challenging. For much of human history, they were not discussed seriously as being a part of the right to privacy, liberty, security, equality, health, and non-discrimination. The situation changed drastically in the 1990s with the developmen t of reproductive technologies. These technologies do not only help infertile couples to conceive, they allow single men and women, no matter their status and sexual preferences, to have offspring of the same genetic origin. We can affirm that in the 21st century assisted reproductive technology (ART) has completely changed what it means to have a baby and to be a parent. Despite their benefits, reproductive technologies leave space for ethical and medical concerns. A few of the many issues raised by reproductive technologies include: the reproductive right to abortion, legal status of the human fetus, ethical aspects regarding the use and storage of embryos, sex selection, surrogacy and gamete donation, and the right and accessibility to medical sterilization. This article sets forth the existing ethical and human rights standards on these issues and illustrates the need for further development and clarity on balancing these rights and interests in the Russian Federation.

Keywords: human reproductive rights; abortion; human fetus; in vitro fertilization; assisted reproductive technology; gamete donation; surrogacy; sterilization.

Recommended citation: Anastasia Maleshina, Taking Human Reproductive Rights Seriously: The Russian Perspective, 8(1) Russian Law Journal 25-59 (2020).

Table of Contents

Introduction

1. Reproductive Right to Abortion. Regulating Maternity

2. Human Rights in the Assisted Reproduction Sphere

2.1. In vitro Fertilization and Gamete Donation

2.2. Ethical and Legal Issues of Surrogacy

2.3. Ethical Aspects Regarding the Use and Storage of Embryos

3. Ethical Aspects of Medical Sterilization Conclusion

Introduction

One of the first announcements on reproductive rights took place at the international Conference on Population and Development in Cairo, Egypt in 1994. At the conference, global delegates drew up a document stating that governments should provide reproductive rights, including the right of couples and individuals to decide freely and responsibly the number of children they want and when they will have them, the right to information about reproductive decisions, and the right of access to high-quality sexual and reproductive health care. in addition, the conference document recognized people's right to make these decisions "free of discrimination, coercion and violence," as expressed in human rights documents,1 in words supported and developed by the World Health Organization (WHO).2 Numerous international treaties, conventions, and policies have since expanded these rights.

Nevertheless, the scope of these rights, as well as the legal framework, differs drastically from country to country. Mainly, there are two major tendencies: to look at these rights as belonging mostly to women's reproductive challenges - first of all the right to abortion; or to deal with them in a broader meaning - as rights to"reproduce" or "a range of claims concerning whether, when, and how to have children," for example.3 The issue is not at all as simple as it may seem from a first glance at the problem. it may seem that we should proclaim the equality of reproductive rights

Programme of Action, adopted at the International Conference on Population and Development, Cairo, 5-13 September 1994, 20th Anniversary Edition, Art. 7.3 (Feb. 3, 2020), available at https://www.unfpa. org/sites/default/files/pub-pdf/programme_of_action_Web%20ENGLISH.pdf.

2 Women's Health and Rights: 25 Years of Progress?: The Beijing Declaration Turns 25, World Health Organization, 8 March 2020 (Feb. 3, 2020), available at http://www.who.int//reproductive-health/ gender/index.html.

3 Historical and Multicultural Encyclopedia of Women's Reproductive Rights in the United States x (J.A. Baer (ed.), Westport, Conn.; London: Greenwood Press, 2002).

based on the equality of genders. The new technology of the 21st century separates conception from sex. Artificial insemination, in-vitro fertilization, and ectogenesis are turning the possibility of reproduction without sexual intercourse into reality.

As important as reproductive issues are and always have been for men, women's childbearing function gives reproductive rights issues a quantitatively greater and quantitatively different impact on women's lives than on men's. The subject of reproductive rights is inseparable from the subject of sexual activity.4

Decisions about reproduction inevitably raise philosophical and ethical (one may also say religious) questions that are not easily resolved: is the fetus a person with moral and legal rights? When does personhood begin - at conception, viability, birth or some other time? Do women have an ethical right of reproductive liberty that encompasses a right to abortion? Philosophers, public officials, and the public at large have debated these issues without reaching agreement or common ground. Notwithstanding this fact, public policies need to be developed despite deep disagreements.

As for the Russian Federation, there is no legal definition of reproductive rights, but the question is highly discussed in the bioethics doctrine. A close review of the existing paradigms demonstrates that studies do not have a shared concept of reproductive rights, rather they have different ideas based on the international and constitutional regulation of these rights, on the one hand, and the meaning of assisted reproductive technologies, on the other.

it is worth admitting that the paradigm according to which reproductive rights have constitutional significance does not gain much attention in the Russian Federation. Finding the constitutional significance of reproductive human rights transfers them to a different plane of values already within the State itself: for example, by creating a special mechanism of legal regulation and implementation, and identifying the constitutional content of the right to reproductive choice. in addition, reproductive human rights receive a kind of constitutional protection. Any legal act affecting one or another aspect of reproductive activity can (should) be evaluated from the point of view of the constitution, becoming the subject of appeal in the manner of constitutional justice.5

Yulia Pavlova defines reproductive rights as the right to free reproductive choice and family planning; the right to receive information on reproductive health and family planning; the right to privacy and confidentiality in obtaining reproductive

4 Historical and Multicultural Encyclopedia, supra note 3, at xii.

5 See, e.g., Бурдо Е.П., Гаранина И.Г. Проблемы выделения института репродуктивных прав человека в российском праве // Пробелы в российском законодательстве. 2015. № 5. С. 61-68 [Evgeny P. Burdo & Inna G. Garanina, The Problem of Allocating Reproductive Institute of Human Rights in Russian Law, 5 The Gaps in the Russian Legislation 61 (2015)].

health services; the right to specialized reproductive health care; the right to enjoy the achievements of scientific progress in order to protect reproductive health and treat infertility; the right to donation and storage of germ cells; and the human right to protection of reproductive rights. She also justifies that each of the above reproductive rights finds its definition in one or another constitutional right (e.g. the right to protection of health, the right to life, the right to State protection of one's rights, etc.).6

in his prominent work dedicated to the legal respect and defense of motherhood and reproductive rights, Georgy Romanovsky stated that the term "reproductive rights" is somewhat conditional and that this group of rights does not have an independent legal nature. The legal framework of reproductive rights, from his point of view, comprises the key human rights - the right to life, the right to privacy, the right to health, including sexual and reproductive health.7 The comparative analyses of the existing reproductive acts of the several states with similar legal systems (mostly former USSR republics) support his assumption.

From a theoretical point of view, the definition of human rights supposes that every state has correspondent obligations - the obligation to respect (to refrain from any measure that may deprive individuals of the enjoyment of their rights or the ability to satisfy those rights by their own efforts); the obligation to protect (to prevent violations of human rights by third parties); and the obligation to fulfill (to take measures to ensure, for persons within its jurisdiction, opportunities to obtain satisfaction of the basic needs as recognized in human rights instruments, which cannot be secured by personal efforts). The point is that when talking about civil and political, social, economic, and cultural rights all levels of obligations are encompassed. it is clearly obvious that the State cannot guarantee the fulfillment of reproductive rights, because sometimes it is impossible or it is closely connected with the violations of the rights of the second person.

Legally and theoretically, contemporary reproductive rights include the right to information concerning reproductive health; the right to decide questions of family planning and childbirth using modern medical knowledge (the so-called

6 Павлова Ю.В. Репродуктивная функция организма как форма реализации конституционного права человека на жизнь: автореф. дис. ... канд. юрид. наук [Yulia V. Pavlova, The Reproductive Function as the Realization of Constitutional Human Right to Life, PhD Thesis] (Moscow, 2007).

7 Романовский Г.Б. Правовая охрана материнства и репродуктивного здоровья [Georgy B. Romanovsky, Legal Protection of Motherhood and Reproductive Health] 126 (Moscow: Prospect, 2016). For instance, among the human rights that are often called key to reproductive rights are the right to life, the right to liberty and security of a person, the right to health, the right to decide the number and spacing of children, the right to consent to marriage and to equality in marriage, the right to privacy, the right to equality and non-discrimination, the right to be free from practices that harm women and girls, the right to not be subjected to torture or other cruel, inhuman and other degrading treatment or punishment, the right to be free from sexual and gender-based violence, the right to access sexual and reproductive health education and family planning information, and the right to enjoy the benefits of scientific progress.

reproductive choice); the right to assisted (artificial) reproductive technologies, including in vitro fertilization, gamete and embryo donation, and preimplantation genetic diagnosis; the right to surrogacy; and the right to medical sterilization.

1. Reproductive Right to Abortion. Regulating Maternity

The right to abortion is often viewed as the leading reproductive right, the most discussed and argued about, and even the right defining the level of democracy of the State and society.8

Efforts to prevent pregnancy and to end unwanted ones is as old as homo sapiens itself.9 A significant change in birth control is connected with the 20th-century development of medical science, when safe and reliable methods of contraception for women and elective abortion became widely available. Soviet Russia was the first country to legalize abortion on request. According to the Decree on Women's Healthcare adopted on 18 November 1920, the Soviet Government, while recognizing the negative aspects of abortion, which is actually"mala" for women, and incompatible with socialistic principles, permitted the procedure on the basis of difficult economic conditions, and "moral vestige of the past." The procedure established that the termination of pregnancy should be performed by physicians only, in medical clinics, and without any fees (Art. 1). Performing an abortion by any person without medical education was proclaimed unlawful.10 it may be noted that years before the Decree, and years before the 1917 Bolshevik Revolution, Vladimir i. Lenin advocated unlimited abortion rights. in 1913, he wrote that for the Bolshevik Party it was important to demand "the unconditional annulment of all laws against abortions ... Such laws are nothing but hypocrisy of the ruling classes."11

Sometimes it is believed that the nature and origins of the Russian attitude towards abortion will be better understood in the context of the history of abortion under communism and afterwards. For instance, before legalization, about 20 percent of pregnancies ended in abortions. According to some sources, in the mid 1930s, the birth to abortion ratio in Moscow was 1 to 3.

8 Romanovsky 2016.

9 Abortion was legally restricted in almost every country at the end of the 19th century. The most important sources of such laws were the imperial countries of Europe - Britain, France, Portugal, Spain, and Italy -which imposed their own laws forbidding abortion on their colonies.

10 Постановление Народного комиссариата здравоохранения РСФСР и Народного комиссариата юстиции РСФСР от 18 ноября 1920 г. «Об охране здоровья женщин» [Decree of People's Comissariat of Healthcare of RSSR and People's Commissariat of Justice of 18 November 1920. On Women's Healthcare].

11 Ленин В.И. Рабочий класс и неомальтузианство / Ленин В.И. Полное собрание сочинений. Т. 23 [Vladimir I. Lenin, The Working Class and Neomalthusianism in Vladimir I. Lenin, Collected Works. Vol. 23] 257 (Moscow: Politizdat, 1973).

The soviet ideologues initially didn't see much of a problem in the subsequent growth of abortion rates; they prophesied that the development of socialism would automatically increase birth and decrease abortion rates. Their prophesies were not fulfilled however ...12

From 1936 until 1955 the Soviet Union made abortion illegal (except for medical reasons), stemming largely from the government's worries about population growth. This ban generated a short-term increase in the birthrate, but the subsequent spread of illegal abortion became a "long-term trend." According to some data, in the mid-1960s, three out of four pregnancies were aborted, and the total number of abortions reached 5.5 million. By the end of the Soviet era, it was estimated that there were no less than 9 million induced abortions in the USSR every year.13

In post-communist Russia, abortion rates are reported to have declined considerably. The decline (up to 29% of the total abortion rate) is partly attributed to the diminishing proportion of women aged 20-34, especially those 25-34 years old (the highest abortion risk group). Alexandre Avdeev and Irina Troitskaia point out the influence of behavioral factors, including the use of modern contraception;14 Igor Kon focuses his attention on the fact that abortion has become a paid procedure, making it less affordable than it was in Soviet times. Nevertheless, even with the recent decline, the abortion rate remains quite high.15

Vyacheslav Karpov and Kimmo Kaarianinen posited that the high rate of abortions can be explained by the persistent cultural legacies of the Soviet past. They described the socio-cultural phenomenon that emerged in Russia under communism as an "abortion culture" and showed in a paper that it has had a lasting impact on Russia's perception of the issue.

12 Vyacheslav Karpov & Kimmo Kaarianinen, "Abortion Culture"in Russia: Its Origins, Scope, and Challenge to Social Development, os-22(2) Journal of Applied Sociology 13, 17 (2005).

13 Id. at 18.

14 Alexandre Avdeev & irina Troitskaia, New Features in Abortion Dynamics in Russia in the 1990s, paper presented at the European Population Conference 1999, The Hague 30 August - 3 September 1999, Session A-5: "Contraception and Abortion" (Feb. 3, 2020), available at https://www.researchgate.net/ publication/228600671_New_features_in_abortion_dynamics_in_Russia_in_the_1990s.

15 According to some data, the total rate of abortions has gone down from an average 3.39 registered abortions per woman during her reproductive years in 1991 to 0.78 in 2015. During the post-Soviet period, the abortion rate has declined in all age-groups, but the youngest cohort (up to 20 years old) has demonstrated the most significant decrease. Between 1992 and 2015, the abortion rate in the group of women aged 15-19 decreased by a factor of 7.3, in the 20-34 group it went down by a factor of 4.2, and in the group aged 35 and older it declined by a more modest factor of 3.7. if we consider only induced abortions, today Russia is not much different from countries with similar birth rates. For example, it is very close to the level of abortions reported by France, Sweden, and New Zealand. The abortion rate is still higher than that of the United States. And Russia still has the highest number of abortions, except for the South Caucasus countries, compared to the former Soviet republics. See Victoria Sakevich & Maria Lipman, Abortion in Russia: How Has the Situation Changed Since the Soviet Era?, PONARS Eurasia, 12 February 2019 (Feb. 3, 2020), available at http://www.ponarseurasia.org/ point-counter/article/abortion-russia-how-has-situation-changed-soviet-era.

The "culture" manifests itself in the widespread and deep-seated view that abortion is a "normal" way of dealing with medical and socioeconomic hardships in personal and family life. These beliefs may account for the fact that Russia's abortion rate is still among the highest in the world, despite generational replacement in the at-risk age group, dramatically improved access to modern contraceptives, and greater openness of public discussion of sexual and reproductive issues. The cross-national comparisons that we utilize show that Russian acceptance of abortion is unparalleled. Furthermore, abortion is not commonly perceived in Russia as a morally relevant issue. Usual predictors of abortion attitudes in other national settings, namely age, gender, education, urbanism, and religious affiliation, predict little in Russia. Acceptance of abortion transcends the boundaries of social strata, suggesting it truly has become a nationwide cultural phenomenon . in the official discourse, the problem of abortion was framed as either a social-policy or a medical problem, but not as a moral issue, and certainly not as a religious one. This makes the abortion culture thesis even more plausible. indeed, the combination of socio-economic conditions, state policies, and ideological influences very likely resulted in a mass culture that manifests itself in behavioral patterns and beliefs that abortion, for whatever reasons, is a fully acceptable medical routine.16

Besides explaining the high level of abortions, special socio-cultural attitudes towards the procedure itself can explain the fact that the idea of a full abortion ban, or of excluding the procedure from compulsory state health insurance, has never gained much attraction. The Russian Parliament rejected a bill17 to ban abortion in 2015. According to some data, a poll by the independent Levada Center in 2017 showed that only 2 percent of those surveyed were in favor of a full ban and 7 percent thought that abortions that were not medically necessary should be banned.18 Pro-life activities are mostly connected with the movement "For Life" and the Russian Orthodox Church. At the same time, among the medical, bioethical, and legal communities the idea is quite unpopular based on the belief that excluding abortion from compulsory health insurance will endanger women's health.

Additionally, abortion rights have never been heavily litigated in Russian legal history as they have been in the United States, the country where the very idea of reproductive rights is closely connected with a woman's right to fertility control.

16 Karpov & Kaarianinen 2005, at 14, 21.

17 The full text of the bill can be found at https://sozd.duma.gov.ru/bill/681134-6.

18 Emily Sherwin, Russian Anti-Abortion Group Fights and Prays for Ban, DW, 23 August 2017 (Feb. 3, 2020), available at https://www.dw.com/en/russian-anti-abortion-group-fights-and-prays-for-ban/a-40177234.

Related groups of reproductive rights have been the subject of reproductive struggles over the last 150 years. And in the light of new anti-abortion laws passed by the legislators of some American states, we can confidently say that these struggles are still ongoing.

in the light of human rights, a woman's right to abortion seems controversial -the procedure itself gives rise to a conflict of interests between a pregnant woman, an unborn child, and the father as well, if the father objects and wants to have his child safe and born alive. And the arbiter to judge the matter is the State, which in the situation is often left without moral elbow room.

The shifting sands of the reproductive autonomy debates were summarized by Carl Stychin more than twenty years ago. He pointed out that at the time advances in biomedical technology had rendered the rhetoric of body ownership problematic.

Reproduction increasingly is not related to the "private realm." instead, the maternal, reproductive body has become intensified as an object of knowledge, regulation and control by legal and medical discourses ... [A]utonomy-based arguments are being deployed, through the use of medical knowledges, not to bolster women's rights of control and ownership of the body, but instead, as to facilitate the construction of the foetus as a separate rights-holding "being." Thus, the foetus is being discursively abstracted from the woman's body (it becomes'free-floating'), and the doctor is constituted as best placed to protect its autonomy interest. The foetus becomes a patient, "an entity requiring a separate physician and often a separate legal advocate" ... As the foetus is made into an autonomous being, the female body is erased from the picture. it becomes simply the container holding the rights-bearing foetus.19

There is no doubt that a pregnant woman cannot be limited in her privacy. Yet, at the same time, she is carrying an embryo, later a fetus, and, even if one denies its legal status as a human being, one cannot ignore the fact that at least it is a potential human life. Even if one supports the view that life does not begin until live birth, it is impossible to deny the fact that from a biological point of view life begins at conception. in this context, if we refuse to acknowledge the legal rights of the unborn, we cannot pretend that it has no rights whatsoever merely from the fact that every living human being went through the stage of in-utero development.

At the present time, the definition of the legal status of the fetus is a core question which dominates all the pro and con arguments over abortion itself. For example, abortion conservatives, who believe that the law should prohibit abortion, recognize a number of exceptions. it is a very common view that abortion should be

19 Carl Stychin, Body Talk: Rethinking Autonomy, Commodification and the Embodied Legal Self in Feminist Perspectives on Health Care Law 211, 223-224 (S. Sheldon & M. Thomson (eds.), London and Sydney: Cavendish, 1998).

permitted when necessary to save the mother's life. Abortion conservatives often allow further exceptions. For example, it is believed to be morally permissible to terminate a pregnancy that is the result of rape or incest.

The more such exceptions are allowed, the clearer it becomes that conservative opposition to abortion does not presume that a fetus is a person with a right to live. it would be contradictory to insist that a fetus has a right to live that is strong enough to justify prohibiting abortion even when childbirth would ruin a mother's or a family's life but that ceases to exist when the pregnancy is the result of a sexual crime of which the fetus is, of course, wholly innocent.20

The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient. This interest obviously extends at least to the performing physician and staff, to the facilities involved, to the availability of post-delivery care, and to adequate provision for any complications or emergencies that might arise. At the same time, there is also the State's interest in protecting prenatal life. Some of the arguments for this justification rest on the theory that a new human life is present from the moment of conception.

The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.21

if the embryo were the holder of a constitutional right to life, then abortions could not be legally permitted in normal cases of unwanted pregnancies. However, such abortions are completely legal in the Russian Federation. This yields a simple conclusion: since the current legal order in the Russian Federation does not accord the embryo the status of a legal person, we cannot treat the embryo as a holder of genuine basic constitutional rights equal to those of all born human beings.

According to Article 56 of the Federal Law "On the Fundamentals of Protection of the Public Health," every woman has the right to decide the questions concerning her motherhood and the right to artificial termination of pregnancy with deliberate informed consent. The procedure should be performed by a competent, licensed physician under safe clinical conditions. The whole pregnancy period is divided into three parts.

20 Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 32 (New York: Alfred A. Knopf, 1993).

21 Roe v. Wade, 410 U.S. 113, 151 (1973) (per Blackmun J.).

Any woman can go through the procedure up to the twelfth week of pregnancy. There exists a legal age limit on seeking and having an abortion: according to p. 2 Article 54, a girl aged 15, or older, can give her informed consent to have an abortion or to refuse to have one (for drug-addicted persons the age is 16).22 The procedure is legally available after 12 weeks but before 22 weeks of pregnancy when the social indication - the pregnancy resulted from rape - exists. in the case of medical indications connected to the health and life of the pregnant woman or the fetus, the pregnancy can be terminated at any time.

The illegal termination of pregnancy is punished by Article 123 of the Criminal Code. According to this article, termination of a pregnancy by a person who lacks higher medical education of an appropriate specialization shall be punished with a fine in an amount up to 80,000 rubles, or in the amount of the wage or salary, or any other income of the convicted person, for a period up to six months, or by compulsory works for a term of up to 480 hours, or by corrective labor for a term of up to two years.23 The mens rea of the offense involves direct intention as to the criminal abortion. in order to convict the accused of criminal abortion it must be shown that the woman (victim) gave her consent. Otherwise, the defendant should be responsible for the intentional infliction of grievous bodily harm.24 Part 3, Article 123 of the Criminal Code provides liability for termination of pregnancy if this act causes the infliction of grievous bodily harm or death of the woman through criminal negligence.

The obvious flaw in the criminal liability for artificial termination of pregnancy, highly criticized among scholars,25 can be drawn from its legal definition. According to the scope of the offense, if the defendant fails to perform an abortion in compliance with the requirements of the Federal Law"On the Fundamentals of Protection of the Public Health" - without the pregnant woman's consent; not in a hospital licensed by the State; with violation of the terms of abortion; by a physician without appropriate specialization - the defendant is not criminally liable. So, the gap between the legal and medical definition of unlawful termination of pregnancy, where the second definition is broader, is obvious. in reality, the single legal criterion, prescribed by criminal law, for criminal prosecution is the absence of specialized medical education.

in 2014, the Code of Administrative Offenses was amended by Article 6.32, which established administrative liability for the termination of a pregnancy without

22 Федеральный закон от 21 ноября 2011 г. № 323-ф3 «Об основах охраны здоровья граждан в Российской Федерации» // СПС «КонсультантПлюс» [Federal Law No. 323-FZ of 21 November 2011. On the Fundamentals of Protection of the Public Health, SPS "ConsultantPlus"].

23 Уголовный кодекс Российской Федерации от 13 июня 1996 г. № 63-ФЗ // СПС «КонсультантПлюс» [Criminal Code of the Russian Federation No. 63-FZ of 13 June 1996, SPS "ConsultantPlus"], Art. 123.

24 Id. Art. 111.

25 Власенко В.В. Актуальные проблемы уголовной ответственности за незаконное проведение искусственного прерывания беременности (ст. 123 УК РФ) // СПС «КонсультантПлюс» [Vladislav V. Vlasenko, Current Issues of the Criminal Liability for Illegal Artificial Termination of Pregnancy (Art. 123 of the RF Criminal Code), SPS "ConsultantPlus"].

the woman's informed, voluntary consent or done with failure to meet the time requirements. From one point of view, this legislative step has helped to eliminate the contradictions between medical and criminal law. From another point of view, it definitely lacks the criteria for defining the worst of all possible forms of an act -those which have the highest level of culpability and cause more harm. There is a great difficulty in answering the question of why the legislature has put the stigma of criminal offense on the termination of pregnancy committed by a person who lacks higher medical education of an appropriate specialization. Furthermore, some forms of pregnancy termination that can, potentially, cause substantial or grievous bodily harm still do not entail administrative or criminal liability: (1) termination of pregnancy in a medical clinic not licensed by the State; (2) artificial termination of pregnancy done in the presence of medical contradictions; (3) artificial termination of pregnancy in the absence of conditions for the provision of specialized (including resuscitation) care for the woman.26

it should be stressed here that there are strenuous calls for the total decriminalization of abortion. While legalizing abortion means keeping abortion in the law in some form by identifying the grounds on which it is allowed, decriminalizing abortion means removing criminal sanctions against abortion altogether.

At bottom, the extent of decriminalization aimed for is a choice between the ideal and the practicable, and reflects the extent to which abortion is seen as a bona fide form of health care - not just by advocates for the right to safe abortion but also by politicians, health professionals, the media and the public. The fact that abortion is still legally restricted in almost all countries is not just historical legacy but indicative of the continuing ambivalence and negativity towards abortion in most societies, no matter how old or where the law originally came from.27

The alternative can be found in"general" criminal laws that allow the punishment of wrongdoing - such as forcing a woman to have an abortion against her will, giving her abortion pills without her knowledge, or causing injury or death through

26 Listed requirements are set down in the Приказ Министерства здравоохранения Российской Федерации от 1 ноября 2012 г. № 572н «Об утверждении Порядка оказания медицинской помощи по профилю «акушерство и гинекология (за исключением использования вспомогательных репродуктивных технологий)»» [Order of the Ministry of Health of the Russian Federation No. 572n of 1 November 2012. On Approval of the Procedure for the Provision on Medical Care in the Profile "Obstetrics and Gynecology (Except for the Use of Assisted Reproductive Technologies)"] (Feb. 3, 2020), available at https://www.rosminzdrav.ru/documents/9154-prikaz-ministerstva-zdravoohraneniya-rossiyskoy-federatsii-ot-1-noyabrya-2012-g-572n-ob-utverzhdenii-poryadka-okazaniya-meditsinskoy-pomoschi-po-profilyu-akusherstvo-i-ginekologiya-za-isklyucheniem-ispolzovaniya-vspomogatelnyh-reproduktivnyh-tehnologiy.

27 Marge Berer, Abortion Law and Policy Around the World: In Search of Decriminalization, 19(1) Health Human Rights 13, 26 (2017).

a dangerous procedure. These are laws against grievous bodily harm, assault, negligent homicide, or manslaughter, which can be applied without the need for a criminal statute on abortion.

2. Human Rights in the Assisted Reproduction Sphere

There has never been a specific federal law regarding all or most of the aspects of human reproduction in the Russian Federation. The definition of ART and the right to reproduce with the help of these technologies are set down in Article 55 of the Federal Law "On the Fundamentals of Protection of the Public Health." The procedure itself is provided in the Order "On the Use of Assisted Reproductive Technologies, Contradictions and Restrictions on Their Use."28

According to Article 55, assisted reproductive technologies are methods of infertility treatment, the application of which presupposes that some or all of the stages of conception or those of initial embryo development do not take place in the organism of the mother (including the usage of donated and/or cryopreserved gametes, reproductive tissues and embryos, as well as surrogacy).

Men and women whether married or not have the right to the application of assisted reproductive technologies upon voluntary, mutual, informed consent to a medical intervention. Single women have the right to the application of ART on the basis of their voluntary, informed consent to a medical intervention.

ART includes in vitro fertilization and embryo transfer, intracytoplasmic sperm injection, ovarian stimulation, artificial insemination with the sperm of a spouse (partner) or donor, and surrogate motherhood. The different methods used in reproductive medicine raise different ethical problems, and hence need to be considered separately.

2.1. In vitro Fertilization and Gamete Donation

The basic program of ART is represented by in vitro fertilization (iVF),29 the procedure which can be used in the case of infertility30 that is not amenable to treatment, including

28 Приказ Министерства здравоохранения Российской Федерации от 30 августа 2012 г. № 107н // СПС «КонсультантПлюс» [Order No. 107n of 30 August 2012. On the Use of Assisted Reproductive Technologies, Contradictions and Restrictions on Their Use, SPS "ConsultantPlus"].

29 In vitro fertilization is the process of fertilization by extracting eggs, retrieving a sperm sample, and then manually combining an egg and sperm in a laboratory dish. The embryo(s) is then transferred to the uterus. Usually the IVF involves five steps, described in the above-mentioned Order (para. 24): the stimulation of superovulation; egg retrieval; insemination and fertilization; embryo culture; embryo transfer. It is prescribed that only two embryos may be placed in the womb at the same time; sometimes it is possible to transfer three embryos if special medical and clinical indications are met.

30 Infertility is a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after twelve months or more of regular unprotected sexual intercourse (Feb. 3, 2020), available at https://www.who.int/reproductivehealth/topics/infertility/definitions/en/.

using methods of endoscopic and hormonal correction of reproductive dysfunctions of men and women within nine to twelve months from the date of diagnosis, or diseases in which pregnancy is impossible without the use of iVF.31 in some cases, iVF can be performed by intracytoplasmic sperm injection (iCSi) when a single sperm is injected directly into the egg. The Order identifies the following medical indications for the procedure: a severe problem with sperm quality; ejaculatory disfunction; a low percentage of fertilization (less than 20%) in previous iVF treatments; and a small number of oocytes (less than 4).32

The indications for iVF have increased with the development of newer techniques such as iCSi, surgical sperm retrieval, embryo biopsy, and cryopreservation techniques, and iVF has become the cumulative step for the diagnosis and treatment for unexplained infertility. The procedure has few side effects and acceptance of this treatment by the general public has opened up new areas of social and legal concerns, such as egg donation, surrogacy, and egg or ovarian tissue freezing.

Nevertheless, with ovarian hyperstimulation syndrome (OHSS) and multiple pregnancies still being the main concerns, the paradigm should shift to proper assessment of ovarian reserve, refining stimulation protocols using newer and safer or fewer drugs to minimize OHSS, and development of international guidelines on the optimal number of embryos to be transferred so that the aim of a single healthy offspring can be achieved.33

Ethical controversies are raised by third-party gamete and embryo donation, particularly concerning the payment of donors, the anonymity of donors, and the selection of donors and recipients. Gamete and embryo donation have always been permitted in the Russian Federation. The law says that potential donors should be 18-35 years old, be physically and mentally healthy, and pass a medical-genetic examination. Nevertheless, the law does not deal with the possibility of payment of donor gametes and embryos, nor with the anonymity issue or parental responsibilities for donors, and neither does it specify whether there is a right for an offspring to know the identity of the donor. The single exception is made for the oocyte and sperm donors - according to paragraphs 54 and 62, these donors can be anonymous as well as non-anonymous.

Some legal orders do not operate a system of anonymity for donors of egg, sperm or gametes, which means that children born as a result of these methods would be

31 Order "On the Use of Assisted Reproductive Technologies, Contradictions and Restrictions on Their Use," para. 20.

32 Id. para. 34.

33 Cheng Toh Yeong & P.C. Wong, In Vitro Fertilization: Indications, Stimulation and Clinical Techniques in The Subfertility Handbook. A Clinician's Guide 123 (G. Kovacs (ed.), 2nd ed., Cambridge: Cambridge University Press, 2011).

able to access information about the donor's identity. The relationship between child and donor, however, does not entail any legal obligation towards each other. For example, in the UK the Human Fertilization and Embryology Authority (Disclosure of Donor information) Regulations of 2004 established the prohibition of anonymity. Donor-received individuals aged 18 and older who were conceived after April 1995 have the right to request the donor's name, date of birth, and the town or district in which the donor was born, a description of the donor's appearance, and the last known postal address of the donor.34 The donor, in turn, may by notice request the appropriate person to give information about the number of persons of whom the donor is not the parent but would or might be, the number of persons in respect of whom the donor is a mitochondrial donor, the sex of each of those persons, and the year of birth of each of those persons.35

Supporters of gamete-donor anonymity usually argue that anonymity practices best respect the donor's interest in privacy as well as the desires of would-be parents in determining what they believe is in the interest of their child.36 Some studies show that the level of trust is higher in those families that have told children their "secret" of birth. Olga Savvina reasonably notes that it is not entirely clear what the reason for this is: it is likely that most trusting relationships in the family influence the decision of the parents to reveal the secret to the child, while distrust in the family and/or patriarchal foundations of the parents and their other beliefs dictate keeping the secret. if the secret is revealed, it automatically raises the more troubling question of finding the donor and making contact. Beyond the information about the donor's health and genetic predisposition to diseases, a person may be interested in the personality of the donor himself, as of the genetic parent.37 in this case, it is important that the interests of the gamete donor and the child born using reproductive technologies coincide. it can happen that the donor and the child are ready to meet, but not necessarily so, for example in cases where the donor considered the donation procedure only as a method of obtaining income.

On the other hand, critics of anonymity policies in gamete donation contend that anonymity policies harm at least two vital interests: flourishing family relations and health, and forgoing a strong identity. Researchers believe that children have the

34 Human Fertilization and Embryology Authority (Disclosure of Donor Information) Regulations 2004 (Feb. 3, 2020), available at http://www.legislation.gov.uk/uksi/2004/1511/regulation/2Xmade.

35 Human Fertilization and Embryology Act 1990, c. 37, S. 31ZD.

36 See Сухарева Е.Р. Правовые проблемы современных репродуктивных технологий: генный материал и анонимность доноров// Вестник Воронежского института МВД России. 2014. № 2. С. 22-28 [Elena R. Sukhareva, Judicial Problems of Modern Reproductive Technologies: Genetic Material and Anonymity of Donors, 2 Vestnik of the Voronezh Institute of MIA of the Russia Federation 22 (2014)].

37 Саввина О.В. Этические основания регулирования донации гамет и практики co-parenting // Актуальные проблемы российского права. 2019. № 4. С. 22-23 [Olga V. Savvina, Ethical Bases of the Regulation of Gamete Donation and Co-parenting, 4 Actual Problems of the Russian Law 22 (2019)].

right to know that donor gametes were used at their conception, as well as to know who their genetic parent is and to be able to contact him. Georgy Romanovsky has pointed out that the better way to choose the appropriate anonymity policy is to see the defining criteria from the point of view of the "child's best interests":

it seems that the right of the child to know this parent should take precedence over the anonymity of the donor. This will increase the social responsibility of not only donors, but also employees of medical clinics practicing ART.38

it is also reported that donor-conceived as well as adopted individuals who lack information about their genetic progenitors may express a sense of loss and incompleteness because of this. But it is hard to assess this evidence for both methodological and substantive reasons.

For instance, it is difficult to determine whether the identity problems are the result of people lacking access to the identity of their genetic progenitors or the result of living in a social context where having access to such information is thought to be necessary for forging healthy identities ... indeed, it seems quite plausible to believe that in Western nations, for example, where there is so much emphasis on having access to information about one's genetic progenitors and where high regard is still granted to the biogenetic family, individuals who lack access to this information may feel they are lacking something essential to their identity ...39

This problem is often compared with the well-known problem affecting adopted children, but in this case there is a significant difference. The difference is that parents in whose family the child is growing up and the State have the opportunity to influence the outcome resulting from the problem. The State has the right to prohibit anonymous donation and thereby ensure "the right to know" to children (and "the right not to know"). These interests also depend on the concept of family we treat. Taking the "traditional" family as the basis means that anonymous gamete donation is the priority concept since other options give rise to new ethical dilemmas, such as the status of the donor in the family, his responsibility and communication with the child, the attitude of the parents, who raised the child, with the donor, and possible conflicts. We also should take into account the fact that the idea of the family

38 Романовский Г.Б. Анонимность доноров половых клеток и современное семейное право // Семейное и жилищное право. 2010. № 5. С. 8 [Georgy B. Romanovsky, Anonymity of Donors of Gamets and Contemporary Family Law, 5 Family and Housing Law 3, 8 (2010)].

39 Inmaculada de Melo-Martín, How Best to Protect the Vital Interests of Donor-Conceived Individuals: Prohibiting or Mandating Anonymity in Gamete Donations?, 3 Reproductive Biomedicine & Society Online 100, 105 (2016).

itself and moral norms regulating interfamily relations are shifting, and the conflicts within the extended family are more likely to occur. A vital interest in a strong family relationship seems uncontroversial.

Arguably, the kind of family life one has shapes the kind of person one becomes. it is, after all, in families, where children begin their moral development, where their talents and abilities can be promoted or inhibited, and where they initially acquire a sense of identity. Strong family relationships characterized by love and affection, understanding and trust, are certainly important for the wellbeing of individuals. Policies and behaviors that endanger these interests, including those connected to gamete donation, are then prima facie problematic.40

The other ethical problem is connected with possible incest in the case of the gamete donation. Hypothetically, the application of ART with the use of the donor's gamete can lead to many children being born from one donor. in some states we can find restrictions on the number of families that can use the sperm of one donor. For example, in the United Kingdom, according to the Human Fertilization and Embryology Authority's Code of Practice, reproductive centers should aim to make best use of donated sperm within the maximum number of families the donor has consented to, up to the 10-family limit. Where the center uses sperm from donors who have been recruited at another center, the center should take reasonable steps to ensure that patients have not reserved more sperm than is reasonable for one family allocation.41

There is no single worldwide policy or recommendation on the use of gametes from one donor. Therefore, it is possible that the children of the same donor will meet each other in the future and create a family, which in fact is incest. The possibility of incest among people who emerged with the help of reproductive technologies raises the question of responsibility for this occurring, and leaves unclear the question, and understanding, of who to blame - clinics, doctors, the State, the parents who turned to reproductive technologies. The very idea of such responsibility is possible only if we choose the concept of unanimity, which is supported by state policy and obligations. But such an approach could violate the rights of donors who wish to remain anonymous and seriously reduce the number of donations.

it should be recognized that the Family Code of the Russian Federation too briefly focused on the problem of artificial reproduction. According to the general rule,

40 de Melo-Martin 2016, at 102.

41 Human Fertilization and Embryology Authority, Code of Practice (9th ed., October 2018), paras. 11.4811.52 (Feb. 3, 2020), available at https://www.hfea.gov.uk/media/2565/hfea-draft-code-of-practice-9th-edition-consultation-version.pdf.

established by Article 47 of the Family Code, the rights and duties of parents and children shall be based on the children's descent, certified in the legally established order. The special rules concerning entry of the child's parents into the register of births in the case of assisted reproduction are set down in Article 51:

[M]arried persons who have given their consent in written form to the artificial fertilization or to the implantation of the embryo, shall be written down in the Register of Births if a child is born as a result of the application of these methods, as this child's parents. The married persons who have given their consent in written form to the implantation of an embryo in another woman for bearing it, may be written down as the child's parents only with the consent of the woman who has given birth to the child (of the surrogate mother).

in addition, the spouse who gave his consent in written form, in conformity with the legally established procedure, to apply the method of artificial fertilization or the implantation of the embryo, shall not have the right to refer to these circumstances when disputing fatherhood. The spouses who have given their consent to the implantation of the embryo to another woman, and also the surrogate mother, shall not have the right to refer to these circumstances when disputing motherhood and fatherhood after the entry into the Register of Births is made.42

According to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of 16 May 2017, within the meaning of existing norms of family law (cl. 4 of Art. 51 of the Family Code of the Russian Federation), the birth of a child as the result of the use by spouses (or a single woman) of donor genetic material does not entail the establishment of parental rights and obligations between the donor and the child, regardless of whether the person was known to the child's parents or not (anonymous donor). With this in mind, a person who is a donor of genetic material is not entitled, when resolving claims to challenge and establish paternity (maternity), to refer to the fact that he is the actual parent of the child. For the same reason, the requirements of persons recorded as parents (single parent) of a child to establish paternity in relation to a person who donated the genetic material with which the child was born cannot be satisfied.43

The question of "multiple parenthood" can also be raised in the situation of mitochondrial donation - an iVF technique with the potential to prevent mitochondrial

42 Семейный кодекс Российской Федерации от 29 декабря 1995 г. № 223-ФЗ // СПС «КонсультантПлюс» [Family Code of the Russian Federation No. 223-FZ of 29 December 1995, SPS "ConsultantPlus"].

43 Постановление Пленума Верховного Суда Российской Федерации от 16 мая 2017 г. № 16 «О применении судами законодательства при рассмотрении дел, связанных с установлением происхождения детей» // СПС «КонсультантПлюс» [Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of 16 May 2017. On Application by Courts of the Legislation when Resolving Cases Involving the Determination of the Origin of Children, SPS "ConsultantPlus"].

disease in the next generation, which involves removing the nuclear DNA from a patient's egg containing faulty mitochondria and inserting it into a healthy donor egg. This can be done before the egg is fertilized (maternal spindle transfer) or post fertilization (pronuclear transfer). The fertilized egg is transferred into the mother exactly as per current iVF practice. This practice is not yet legal in the Russian Federation, but if it were, it could potentially allow having genetically related children without the risk of their inheriting mitochondrial DNA defects that would drastically limit their lives. At the same time, in this scenario there are some ethical and social concerns connected with parenthood. Here, there finally appears a collaborative enterprise, distinguishing between the roles of social mother and father, a biological father in the form of a sperm provider, a biological mother in the form of an egg provider, and a gestational mother in the form of a surrogate. The mitochondrial donor can be added as a sixth progenitor, who alongside the biological father and biological mother is also a genetic contributor.

Mitochondrial donation involves the transfer of genetic but not nuclear material, and this has led to uncertainty as to whether it should be regulated as egg donation or as tissue donation, the nature of the relationship between child and donor, and how this should be managed. But the extent of the genetic contribution and the function of the genes involved is not sufficient, because the genes contributing to personal characteristics and traits come solely from the nuclear DNA, which only come from the proposed child's mother and father. The donated mitochondrial DNA will not affect those characteristics; thus, from the legal point of view, it should not lead to any parental obligations. According to the opposite opinion, while identity is difficult to define, it cannot or should not be reduced to our character and physical traits. in addition, it is clear that mitochondria play a really significant role in the creation of mitochondrial disease; in which case being born with or without mitochondrial disease would have a significant impact on the child and family.

While the mitochondrial genome may be fungible, it nevertheless constitutes a fundamental part of an individual's healthy functioning body and contributes to the nature of their appearance and their course of life.44

A. Bredenoord also pointed out that there should be

a global responsibility within the research community to discourage premature use of experimental techniques, such as MRTs, and to strive for robust governance in areas where it is currently lacking.45

44 Annelien L. Bredenoord & John B. Appleby, Mitochondrial Replacement Techniques: Remaining Ethical Challenges, 21(3) Cell Stem Cell 301, 303 (2017).

45 Id. at 302.

ART also raises new ethical and moral issues about sex selection, surrogacy, and disposal of human embryos.

2.2. Ethical and Legal Issues of Surrogacy

Surrogacy is defined by the law as carrying and delivering a child (including premature childbirth) on terms specified in an agreement concluded between the surrogate mother (a woman who carries a fetus after a donated embryo is transferred into her uterus) and the intended parents, whose gametes were used for fertilization, or a single woman, who cannot carry and deliver a child due to medical reasons (Art. 55 of the Federal Law "On the Fundamentals of Protection of the Public Health"). Thus, the Russian Federation chooses the concept of gestational surrogacy, where there is no genetic link between the surrogate and the child she carries, instead of the traditional one, where the surrogate's oocytes are used.

Medical indications for surrogacy are defined by Order No. 107n as follows: absence of uterus (born or received); uterine cavity or cervix deformity; endometrial pathology; somatic diseases contradicting child bearing; repeatedly failed iVF attempts (3 or more), when high-quality embryos were repeatedly obtained and their transfer was not followed by pregnancy; persistent miscarriage (3 or more episodes).46 Thus, there are no social or psycological indications which should be taken into account.

The procedure is composed of several stages. The first one is the synchronization of the menstrual cycles of the genetic and surrogate mothers. The second and third stages are the stimulation of superovulation of the genetic mother and egg retrieval procedure. The next step is egg fertilization in the laboratory to create an embryo. The fifth stage is embryo cultivation. The sixth and final stage is the transfer of the embryos into the uterine cavity of the surrogate mother.47

According to clause 10 of Article 55, a prospective surrogate should be 20-35 years old and should have at least one child of her own. She should have a medical certificate stating that her health condition is satisfactory, and she also should give written informed consent to the medical intervention. if a surrogate is married, the written informed consent of her husband is also obligatory.

The particular interest is connected with the fact that Russian law does not explicitly allow nor prohibit surrogacy for single men.

Surrogacy is a very complicated issue, beset with many ethical, social, and legal dilemmas. For example, there is the viewpoint that it is ethically and naturally unacceptable for a woman to give birth to a child in order to surrender it to other people.48

46 Order "On the Use of Assisted Reproductive Technologies, Contradictions and Restrictions on Their Use," para. 79.

47 Id. para. 83.

48 See, e.g., Romanovsky 2016.

it is worth mentioning that the effect of a close bond between the surrogate mother and her biological child is often neglected, and we do not discuss the possible trauma of the mother in giving her child away to the adopters. The emotional connection between the surrogate mother and the child she is bearing and giving birth to is extremely strong, and on this point the surrogacy itself can be characterized as immoral because it breaks this connection. The surrogate cannot be treated as a"machine for producing children" or "an animal whose womb can be used to provide a purely material service": she is a person who prepares a baby for life through the unbreakable bond that is created during pregnancy between her own vital functions and those of the fetus she is carrying in her womb.49 This view is reflected in the legal regulation, where it is the gestational mother who must remain "the arbiter" of the destiny of the pregnancy. According to clause 4 of Article 51 of the Family Code of the Russian Federation, persons who are married to each other and who have given their written consent for the implantation of an embryo into another woman for the purpose of bearing a child may be recorded as the parents of the child only with the consent of the woman who gave birth to the child (the surrogate mother).50

At the same time, in the legal doctrine of the Russian Federation this viewpoint seems acceptable on the basis that the surrogate voluntarily, consciously, and intentionally transfers the child and the whole range of legally stipulated parental rights to the spouses who have applied for her help.51 Alla Kristaphorova notices that the surrogate,

being mentally healthy in her sound mind and solid memory, gives an account of her actions, already has maternity experience and consciously and voluntarily decides to sign a surrogate agreement, agrees to all necessary medical procedures, gestation, childbirth, plans to receive a monetary reward - then she must be aware of her actions, this is not one action, but a sequential chain, and this is very serious! And if a woman finds it appropriate from the very beginning, she must bear the child with the idea that, having

49 Claudia Casella et al., Ethical and Legal Issues in Gestational Suttogacy, 13(1) Open Medicine 119 (2018).

50 There also exists the clarification of the Plenum of the Supreme Court, according to which the courts should take into account that if the surrogate mother refused to give consent to the recording by the parents of the above persons (potential parents), this circumstance cannot serve as an unconditional basis for refusing to satisfy the claim of these persons regarding the recognition of the child by their parents and the transfer of the child for upbringing. See Resolution of the Plenum of the Supreme Court of the Russian Federation "On Application by Courts of the Legislation when Resolving Cases involving the Determination of the Origin of Children."

Борисова Т.Е. Суррогатное материнство в Российской Федерации: проблемы теории и практики: монография [Tatiana Е. Borisova, Surrogacy in the Russian Federation: Theoretical and Practical Issues: Monograph] (Moscow: Prospect, 2012).

given birth, she is not just supposed to, she is obliged to give the child to the genetic parents-customers.52

The ethical dilemma also arises because of the collision of the rights that are being realized by commercial surrogacy. There is a desire to preserve personal autonomy and the right to free-choice, on the one hand, and the moral responsibility towards the child that is being born in this way and all the parental obligations, on the other. As Georgy Romanovsky has pointed out:

[i]n fact, there is a biological exploitation of a woman as an organism, the ... exclusive ability to bear and give birth to a child. Considering that demand arises in "rich" countries, and supply in "poor" ones, conversations about the kindness of surrogate mothers turn into an advertisement of the integrity of an ordinary business in public. Russian scientists practicing surrogate motherhood agree that the main motive is not at all the altruism of female donors but rather social problems.53

The question of commercial surrogacy has not received a uniform solution in the countries using the mentioned reproductive technique. From one point of view, it seems quite rational to compensate the surrogate's "service," including all the expenses connected with the medical procedures, invasive by their nature, carrying multiple fetuses, going on bedrest, the medical risk of cesarean section, and then all of the other possible medical "what ifs."

Many surrogate mothers also feel that financial compensation is necessary to compensate not only themselves but also their own families who have to live through the pregnancy.54

At the same, voicing the risks to the welfare and personal health of the surrogate may be met with arguments that other forms of employment available to women in these situations may actually be more harmful and abusive. That is why some authors believe that "banning commercial surrogacy does nothing to help this problem, opening up the dangerous possibility that surrogacy would transfer to the black

52 Кристафорова А.В. Суррогатное материнство в Российской Федерации: основные понятия, проблемы правового регулирования, роль нотариуса // Семейное и жилищное право. 2014. № 3. С. 24-28 [Alla V. Kristaphorova, The Surrogate Maternity in the Russian Federation: Basic Concepts, Legal Problems and Public Notary Role, 3 Family and Housing Law 24 (2014)].

53 Romanovsky 2016.

54 Louse A.H. Ramskold & Markus P. Posner, Commercial Surrogacy: How Provisions of Monetary Remuneration and Powers of International Law Can Prevent Exploitation of Gestational Surrogates, 39(6) Journal of Medical Ethics 397 (2013).

market, with unregulated touts offering cut-price deals in back streets" and propose inter-state surrogacy regulations and agreements in order to protect all parties and equalize the regulatory disparity across the globe.55

Kristen Cheney, speaking on the subject from the feminist perspective, admits that whereas some feminist scholars invoke the right to bodily autonomy in both instances and draw parallels between the ability to earn through one's body in prostitution and in surrogacy,

many pragmatists note that such "choices" and the exercise of agency are often severely constrained by everyday circumstances of poverty such that what appear to be choices might in fact constitute economic coercion.56

But from another viewpoint, compensation for bearing and giving birth to a child sounds immoral and cynical as can be - surrogacy degrades a pregnancy to a service and a baby to a product. From this perspective surrogacy is another form of commodification of women's bodies. Surrogate services are advertised, surrogates are recruited, and operating agencies make large profits. The commercialism of surrogacy in conditions of the absence of international consensus on the question, which sees the altruistic model as preferable, raises fears of a black market and baby selling, turning impoverished women into baby producers.57

Commercial surrogacy has never been banned in the Russian Federation, and existing law does not change the situation - it simply bypasses the question, which can lead to the conclusion that the practice of compensation for surrogate services is permissible.

According to the existing norms, surrogacy should be specified in an agreement, but there is no definition of its legal essence, nor clear requirements for the terms of the contract. Thus, Yulia Dronova supposes that this is a medical service contract,58 namely for the surrogacy program, which should include a list of the most significant

55 Ramskold & Posner 2013.

56 Kristen E. Cheney, International Commercial Surrogacy: Beyond Feminist Conundrums and the Child as Product in Feminism and the Politics of Childhood: Friends or Foes? 155 (R. Rosen & K. Twamley, London: UCL Press, 2018).

57 See, e.g., Andrea Whittaker, International Surrogacy as Disruptive Industry in Southeast Asia (New Brunswick, N.J.: Rutgers University Press, 2019).

58 The same understanding of the legal nature of the surrogacy contract may be found in the works of Фаракшина К.Ф. Предмет договора суррогатного материнства: теория и практика // Актуальные проблемы российского права. 2013. № 6. С. 738-742 [Ksenia F. Farakshina, Subject Matter of Surrogacy: Theory and Practice, 6 Actual Problems of the Russian Law 738 (2013)]; Митрякова Е.С. Правовое регулирование суррогатного материнства в России: дис. ... канд. юрид. наук [Elena S. Mitryakova, The Legal Regulation of Surrogacy in the Russian Federation, PhD Thesis] 63-77 (Tumen, 2006); Фетисова О.В. Бездетные семьи в России: пути решения проблемы // Семья и дети. Труды Института государства и права РАН. 2008. № 2. С. 57-60 [Oksana V. Fetisova, Childless Families in Russia: Ways to Solve the Problem, 2 Family and Children 57 (2008)]; Артюшина О.Н. Правовая природа договора о суррогатном материнстве // Вестник КГУ. 2018. № 1. С. 234-235 [Olga N. Artushina, The Legal Nature of the Surrogacy Agreement, 1 Vestnik KSU 234 (2018)].

rights and obligations of the parties, which determine their legal status and responsibility. The terms of the agreement should cover compensation for medical expenses, including additional compensation the surrogate may receive for invasive procedures, carrying multiple fetuses, going on bedrest, etc.; the place of residence of the surrogate mother during pregnancy; the medical clinic where the surrogacy program will take place; an agreement on sensitive issues such as the birth of a child that is mentally or physically disabled; the surrogate's health and her requirements in respect of taking care of herself and the baby throughout her pregnancy, etc.

Some authors, although they attribute the surrogacy agreement to civil law, consider it not a service agreement but an unnamed agreement.59

if we do not treat the surrogate mother agreement as a civil one, then, when we meet non-fulfillment or improper performance by the parties, it is impossible to apply the rules of civil liability.

For objective reasons, the contract in question is really similar to a civil contract. Based on this conception, it should be placed in Chapter 39 of the Civil Code of the Russian Federation since the surrogacy agreement on a reimbursable basis corresponds to the subject of the contract for the provision of services. The contractor is the surrogate mother who is obliged to bear and give birth to a child, and the customer is the potential parent whose gametes were used for fertilization, or a single woman for whom bearing and the birth of a child is impossible for medical reasons who undertakes to pay for the services provided. But it should be noted that in addition to the paid surrogacy agreement, agreements are concluded on a gratuitous basis and in this case the norms of Chapter 39 of the Civil Code of the Russian Federation cannot be applied. On this account, Tatiana Borisova writes that it is impossible to attribute a surrogate motherhood contract to a civil law contract, and a gratuitous one to another type.60

Galina B. Bogdanova argues that the surrogacy contract is inherent in the special personal nature of the relationship between the spouses-customers and the surrogate mother; a special content obligation that the surrogate mother assumes in terms of bearing, giving birth, and transferring the child to the spouses; the specifics of the rights and obligations of the parties in the future, if the surrogate mother wishes to become a mother and refuses to transfer the child to the customers, leaving the child to herself, and the spouses-customers do not have the right to influence her or, moreover, bring her to account for failure to fulfill the obligation, etc. - all this is in favor of the fact that the civil law is not applicable to these relations.61

59 Волкова М.А., Питько Е.В. Проблемы правового регулирования суррогатного материнства в России и за рубежом // Бизнес в законе. 2016. № 2. С. 152-155 [Maria A. Volkova & Elena V. Pitko, Problems of Legal Regulation of the Contract of Surrogate Motherhood in Russia and Abroad, 2 Business in Law 152 (2016)].

60 Borisova 2012, at 8.

Богданова Г.В. Проблемы правового регулирования личных и имущественных отношений между родителями и детьми: дис. ... канд. юрид. наук [Galina V. Bogdanova, The Problems of Legal Regulation of the Personal and Property Relations Between Parents and Children, PhD Thesis] 25 (Saratov, 1999).

The specific nature of the rights transferred, and its unpaid character, give reason to treat this type of contract as a family one, since the basis is not commodity-money circulation, not the satisfaction of material needs, but the replenishment of the reproductive function of a woman who is not able, due to physiological reasons, to have her own child.62

There also exists an alternative point of view, according to which the surrogacy agreement is an interdisciplinary civil-family agreement, since relations arising in the field of surrogate motherhood are specific and, on the basis of Article 4 of the Family Code of the Russian Federation, are governed in part by the norms of the civil law in the area that does not contradict the dispositive norms of family law.63 Thus, we should proceed from the position that the rules of a similar contract type should be applied to unnamed contracts, then the general binding norms, and only then the general principles of civil law.

The other important aspect of surrogacy, which is almost never considered, is the rights of the child. Transferring the duties of parenthood from the surrogate to a contracting couple or a single woman denies the child any claim to its gestational mother and to its biological parents if the egg or sperm (or both) is not of the contracting parents. in addition, the child has no right to information about any siblings he or she may have in the latter instance. While some authors report that

donor-conceived young people who form relationships with donor siblings often view them as equivalent to "extended family" with all the nuances of meaning that term entails when applied to family of origin ... ,

others find it doubtful that

surrogate born children would feel the same about others born from the same gestational surrogate, however - especially where relationships with surrogates (unlike with gamete donors) fall outside of patriliny and transgress racial, national and class lines - but this is a crucial area for further study.64

62 Стеблева Е.В. Проблемы реализации прав участников отношений суррогатного материнства: автореф. дис. ... канд. юрид. наук [Ekaterina V. Stebleva, The Problem of Exercising the Rights of Participants in Surrogacy Relations] 15 (Moscow, 2012).

63 Дьякова Ю.В. Правовая природа договора суррогатного материнства // Право: современные тенденции: материалы V Междунар. науч. конф. (г. Краснодар, февраль 2018 г.) [Yulia V. Diakova, The Legal Nature of the Surrogate Agreement: Materials of the V International Scientific Conference (Krasnodar, February2018)] 41 (Krasnodar: Novatsiya, 2018); Алборов С.В. Правоотношения в сфере суррогатного материнства // Актуальные проблемы российского права. 2017. № 5. С. 142-145 [Suliko V. Alborov, Legal Relationship in the Sphere of Surrogacy, 5 The Actual Problems of the Russian Law 142 (2017)].

64 Kristen E. Cheney, International Commercial Surrogacy: Beyond Feminist Conundrums and the Child as Product in Feminism and the Politics of Childhood: Friends or Foes?, supra note 56, at 155.

The last, but not the least, aspect of surrogacy worth mentioning is the right to go through the procedure for single men. The law explicitly allows surrogacy for married couples and single women, without saying a word about non-married gay couples or single men. At the same time, there is no legal prohibition of surrogacy for single men. According to equal rights to parenthood guaranteed by Articles 19 and 38 of the Constitution of the Russian Federation and Articles 53 and 61 of the Family Code of the Russian Federation, it seems both legally sound and fair that potential single parents, regardless of their sex or sexual orientation, can exercise their right to parenthood through surrogacy in Russia.65 The mentioned attitude is based rather on the social concept of infertility, on a right to reproduce, than on a medical one which sees infertility as a disease. The social paradigm of infertility includes cases where single men and women without medical issues want to become parents, and if it were accepted, then those who cannot use ART would fall under a new social account and could also receive access to reproductive services.

2.3. Ethical Aspects Regarding the Use and Storage of Embryos

The highly controversial issue of the ethical and legal status of the human embryo mentioned above according to a woman's right to abortion also has a second perspective connected with ART.

Here we may distinguish further between, on the one hand, the protection of certain people's rights and interests against current harm (e.g. of women's interest not to be exposed to unclear risks when donating oocytes for research purposes), and, on the other hand, the protection of society at large against future violations of common interests which might be endangered if embryo research is allowed to occur. The latter kind of concern usually points at the risk that we might be setting down a slippery slope to gravely unethical societal developments if we allow even very early human life to be taken and used for the sake of others.66

Since in contemporary Russia embryos have no legally protected personhood, the question to be resolved after the iVF cycle is the future of supernumerary embryos. The decision can be made solely by the couple (or single woman) that initiated the ART procedure. Here, the couple has several options.

65 This attitude was reflected in a number of court decisions, e.g. on the 4 of August 2010, a Moscow court ruled that a single man who applied for gestational surrogacy could be registered as the only parent of his newborn son. In addition, the surrogate mother's name was not listed on the birth certificate. Решение Бабушкинского районного суда г. Москвы от 4 августа 2010 г. по делу № 2-2745/10 [Decision of the Babushkinsky Court of Moscow of 4 August 2010 No. 2-2745/10].

66 Reinhard Merkel, The Legal Status of Human Embryo, 2(1) Ethics, Law and Moral Philosophy of Reproductive Biomedicine 54, 55 (2007).

First of all, the embryos that remain can be preserved. According to Article 55 of the Federal Law"On the Fundamentals of Protection of the Public Health," citizens have the right to cryopreservation and the storage of their gametes, tissues of the reproductive organs, and embryos at the expense of personal funds and other means provided for by the legislation of the Russian Federation. The list of indications for cryopreservation is set down by Order 107n as follows: (a) the need to store embryos until chemotherapy and/or radiation therapy is started; (b) the need to store embryos for the purpose of further use in ART programs; and (c) cryopreservation and storage of embryos can be carried out at the request of the patient. The Order does not set any limitations on the maximum storage period of embryos. The contracts of most medical clinics contain special conditions according to which when the agreed storage period expires and there is no expressed will to prolong the contract, the license holder should dispose of the embryos. Any other issues, challenged both ethically and legally, are not covered by the law, such as: who determined the fate of the embryos or germ cells delivered for storage, including after the death of their owner; is there a procedure for the use of gametes or embryos for reproductive purposes in the absence of the will of the donor or at his death; is it possible for the woman who agreed to bear the embryo to "adopt" the embryo; and is it possible for one of the parties who made the decision to preserve the embryo to determine its fate alone, without the consent of the second party. The existing legal loopholes potentially create the grounds for legal conflicts and lead to legal uncertainty.

Regarding the storage of embryos, it should be noted that the storage of such in itself causes serious scientific discussion and requires a balanced approach. On the one hand, embryo cryopreservation maximizes the probability of pregnancy, avoids new ovary stimulations, and reduces the occurrence of multiple gestations, so it seems justified from a medical and technical point of view. But, on the other hand, there is a consensus that the in vitro embryo deserves legal protection all its own, although not as a newborn. Since the Russian Federation allows the cryopreservation of embryos, it definitely privileges women's reproductive rights over human life protection since fecundation. Nevertheless, a concept of moral status of the human embryo should be respected, and we need legal norms which set up this status before its implantation, the couple's rights, and cryopreservation to avoid the embryo's destruction and indefinite storage.

The second option is the destruction of the remaining embryos, a decision not so simple to make. Some couples, after having the number of children they wish for, do not want to pay the annual fee for embryo storage indefinitely. Others do not want the embryos, which they consider their "off-spring," to go to some other couples or to be used for scientific research. Other persons, on the contrary, treat the destruction of an unwanted embryo as "killing a person." As pointed out earlier, the author does not think that the embryo is a person, "a being that has consciousness, self-consciousness, sensitivity to pleasure and pain and/or rationality."

Until 14 days post-conception, the nervous system has not even started to develop. it is clear that embryos are not conscious - most studies affirm that the onset of fetal consciousness is after 24 weeks. Nevertheless, embryos cannot experience pleasure and pain - this ability is proven to appear after 16 weeks of gestation. in addition to this, they are certainly not self-conscious or rational, as self-consciousness does not develop until late in pregnancy or after birth, and rationality, of course, develops much later.67

At the same time, this statement does not exclude the necessity to respect the embryos as potential persons, and we cannot refer to them in the same way we refer to other transplant tissue.

Speaking of destruction, it is worth mentioning the so-called "compassionate transfer." This a process where the remaining embryos are transferred into the uterus of a woman when it is highly unlikely to result in pregnancy, without any treatment beforehand. This procedure is considered "less morally problematic than intentionally destroying these embryos or leaving them frozen indefinitely, as it may seem a more 'natural' way - the miscarriage compared to an intentional destruction of embryo."68 This option can be appreciated for the preservation of the ethical "non-maleficence" principle, but it does not provide any benefit, being just an alternative way to dispose of the embryo.

Finally, the embryos can be donated. As already mentioned, the law does not say anything about the possibility of financial compensation. But if we treat the embryos in the same way we treat organs or tissues for transplantation, any financial compensation should be forbidden. The procedure, though not extremely popular, is challenged in the ethical sphere. if a woman or a couple find it appropriate to donate the embryos, they definitely show some respect and protection, support the life, and consider that the embryo should follow its normal evolution. This is an important way to ensure the embryos the woman/couple worked for will be brought to life and make a struggling couple/woman happy. At the same time, however, in this case their genetic siblings will be born and raised by strangers, and no one can guarantee that it will be a safe life, full of love and care.

Ultimately, the problem closely connected to the dilemmas of embryo destruction is the preimplantation genetic diagnosis (PGD), the technique that has revolutionized the treatment of infertility. PGD is similar to the prenatal diagnosis used to screen for various genetic diseases before birth, but its advantage is that it allows the selection of certain embryos before their transfer back into the uterus and avoids selective pregnancy terminations. What cannot be avoided is the destruction of

67 Dian Mihai et al., The Ethical Aspects Regarding Cryopreserved Embryos, 25 Romanian Journal of Legal Medicine 317 (2017).

68 Id.

unwanted embryos the couple never intends to use. That is why thoughtful and ethical decision-making is mandatory. For example, today PGD is mostly used to avoid potential diseases in the future child. But what types of genes should be tested for? A genetically fatal disease? A disease that causes mental retardation? Traits of appearance? To match a relative for transplantation? it seems that the answer to the question should be narrow, and the technique itself can be legitimate and justified only when we are faced with a severe, fatal disease which causes intolerable suffering. At the same time, questions exist as to how to draw a line about the quality of life with regard to disabilities without going down a very slippery slope; those disorders that directly threaten or greatly impair function seem morally defensible for genetic screening and testing.

Medical professionals and lawyers must be cautious, though, about how they view their role in defining "disability" that merits screening. Many traits and conditions that produce limits in function are compatible with having a long, happy, loving, and productive life.

For example, while some parents in some cultures may view a condition like albinism as a terrifying condition and a horrific burden, the fact that there are many successful people who have albinism and with minimal effort live long and happy lives should give pause both in practice and in policy as to how medicine ought to draw lines about what traits it will and will not test.69

Additionally, the parents can make the choice of keeping the "affected" embryo and come into some sort of conflict with the medical professionals who

have the right to say that they do not wish to participate in making new persons who will have massive disabilities when other children could be created.70

we should also take into account that only some severe diseases are caused by single-gene mutations that have complete penetrance, such as Huntington disease, spinal muscular atrophy type 1, myotonic dystrophy, and Duchenne muscular dystrophy. Most genes, in contrast, have incomplete penetrance or variable expressivity, so that their presence does not reliably predict the occurrence of disease or its severity. Furthermore, most common conditions are polygenic. For example, a person's risk of hypertension and diabetes depends on several genes, including genes that might be protective or modify the expression of other genes. Many laypeople mistakenly regard genetic influences as all-or-nothing, rather than as probabilities.

69 Richard T. Scott, Jr. et al., The Ethical Implications of Preimplantation Genetic Diagnosis, 60(1) Clinical Chemistry 25, 27 (2014).

70 Id.

Speaking of the selection of the genetic profile that would lead to the birth of a child who could be a donor for a relative, it is worth mentioning that some scholars feel the issue wholly legitimate, especially when talking about the child with a serious disease the couple already has. The tricky thing here is that the embryo we searched for is a potential person who has his moral and legitimate right at least to give his informed consent for future donor/tissue donation. in the situation when we match an embryo to an ill sibling to empower a lifesaving transplant, this right is simply neglected.

PGD testing for non-medically related gender selection seems ethically non-acceptable and is legally prohibited in the Russian Federation (Art. 55 of the Federal Law "On the Fundamentals of Protection of the Public Health") though the procedure itself is often associated with so-called "family balancing," i.e. the choice of a child of a specific gender. Some specialists find this procedure to be essential to the reproductive right - a right to have a child "suitable" for the family needs. As we see it, granting this right to a person will inevitably lead us down the slippery slope of the position where medicine can enhance or improve human traits, e.g. when parents can select the traits they do not want in their children, and the traits they want to pass on, which are actually eugenic practices.

Enhancing or improving traits in an area that while deemed socially acceptable, also requires counseling by those neutral to the desirability of any given trait. it will be important to keep this sort of activity to a minimum, given that much uncertainty will surround the role of genes in creating optimal traits in a human being or what price optimization may exact on the individual or society.71

The final aspect to be revealed is the creation or use of the embryos for purposes not connected to human reproduction. in the Russian Federation, to use embryos for industrial purposes (Art. 55 of the Federal Law "On the Fundamentals of Protection of the Public Health") is outlawed, but the use of embryos for scientific or medical research, including stem cell research, somatic gene therapy for genetic disorders, and the generation of replacement tissues and organs for transplant, or the ability of their creation for this purpose, is not covered by the Russian legislation.

Speaking of stem cells, they can be derived from embryos created by two mechanisms: iVF or cloning, which is banned in the Russian Federation.72 Because any single cell in the very early human embryo can develop into a whole fetus, it is thought that embryonic stem cells have the potential to develop into almost any

71 Scott, Jr. et al. 2014, at 27.

72 Федеральный закон от 20 мая 2002 г. № 54-ФЗ «О временном запрете на клонирование человека» // СПС «КонсультантПлюс» [Federal Law No. 54-FZ of 20 May 2002. On the Temporary Ban on Human Cloning, SPS "ConsultantPlus"].

cell type and repair damaged or diseased parts of the human body. The therapeutic potential of embryonic stem cells therefore is thought to be enormous, but so is the moral peril because extracting these stem cells generally leads to destruction of the embryo. For this reason, the research has been opposed by many individuals and groups, including those who consider the early embryo to be a person or, if not a full person, an entity of such sufficient moral significance that it should not be created for, or destroyed in, research. The possibility of destructive embryo research, particularly embryonic stem cell research, presents us with a moral dilemma, because it appears to bring into tension two fundamental moral principles that we esteem very highly: one principle enjoins the prevention or alleviation of suffering, and the other enjoins us to respect the value of human life. The question then is which principle ought to be given precedence in this conflict situation. Should we give more weight to the first and permit destructive embryonic stem research because of its remarkable potential benefits or should we give more weight to the second, and prohibit destructive embryonic research because it violates respect for the value of the embryo as the very beginnings of a possible human life. The worst part of this dilemma is the absence of relevant legal regulation, which can lead to the conclusion that all these procedures are allowed. Thus, the State should make a morally calculated decision, and whatever way the calculation will be done, it seems right and morally balanced to grant, voluntarily, with informed consent, for medical research only, those embryos which otherwise would be destroyed.

it was argued for a long time that it is with the help of the sciences vis-à-vis man that one can find the conditions that ensure the preservation of the human species. This thought has become the leading motive of the creators of modern bioethical knowledge. However, the results appear to be completely mixed. Modern human sciences form a fundamentally different level of ideas about the possibilities of man and his history. Under certain conditions, without relevant legal regulation, advances in science can give impetus to the degradation of man, his dehumanization. Consequently, it can be stated that it is the development of the biotechnologies that can lead to the result that man in the usual sense will disappear.73

3. Ethical Aspects of Medical Sterilization

According to Article 57 of the Federal Law"On the Fundamentals of Protection of the Public Health," medical sterilization as a special medical intervention to deprive a person of the ability to reproduce offspring or as a method of contraception

73 See Агеева Н.А. Биоэтика как новое синтетическое направление современной науки [Natalia A. Ageeva, Bioethics as a New Complex Contemporary Science] 47-57 (Rostov-na-Donu: Terra, 2015); Бондаренко В.В. Проблема ценностного статуса эмбриона в свете религиозно-философской парадигмы // Теология. Философия. Право. 2017. № 2. С. 24-43 [Viktoria V. Bondarenko, The Problem of the Vibrational Status of the Embryo in the Light of the Religious-Philosophical Paradigm, 2 Theology. Philosophy. Law 24 (2017)].

can be carried out only upon the written application of a citizen over the age of 35 years or a citizen with at least two children, and if there are medical indications and informed voluntary consent - regardless of age and availability of children. Thus, we can distinguish two grounds for medical sterilization. The first one is connected with the reproductive right to refuse to have more or any children at all and is, in essence, a method of contraception.

Notwithstanding the fact that it is obligatory to get the patient's consent, the procedure itself raises important issues, the most significant of which is the judgment between the patient's view of a life-enhancing surgical procedure and the ethical requirement to do no harm. For example, a doctor can have good, evidence-based reasons to believe that a particular patient will regret sterilization years afterwards if the operation goes ahead. Although sterilization can sometimes be reversed, the chances of success are low (below 50%), and patients seeking the operation are advised to assume that it is irreversible. How should the doctor act?

it is tempting to see this as a question about paternalism, about overriding a patient's wishes for the sake of her best interests to be sterilized. in view of this, the doctor must decide how to balance the patient's present wishes and her best interests.74

in practical terms, this has two significant consequences. First, the doctor, acting somewhat paternalistic, and owing to his obligation of receiving informed consent, must inform a competent adult patient of the risks and benefits of the procedure, including the chance that he or she may regret it later. Second, the patient's right to a procedure does not automatically mean the doctor's obligation to perform one if he believes that the sterilization is not in the patient's best interest.

The second aspect, being analyzed in this context, is the right of the partner/ spouse to know about the sterilization procedure and to influence the decision. The choice made not to have any or more children affects the rights of the person who consents to surgical intervention, but also affects the rights of the spouse/partner because it automatically leads to social infertility, and infertility by most legal systems is recognized as the unconditional basis for divorce. According to Article 31 of the Family Code, matters of motherhood, fatherhood, upbringing, education of children, and other issues of family life are decided by the spouses jointly on the basis of the principle of equality of spouses. This norm is considered to be the basis of the mandatory adoption of family decisions by consensus. The continuation of this position is the rationale for mandatory counselling with the spouse when making reproductive choices. Some scholars insist on securing the right of claim in such

74 Piers Benn & Martin Lupton, Sterilisation of Young, Competent and Childless Adults, 330(7503) BMJ 1323, 1324 (2005).

a situation. This means that the spouse can apply to the judicial authorities with a request to establish a ban on certain actions or, conversely, impose an obligation to perform certain actions.75 The first objection can be dealt with straightforwardly. The right to sterilization, being a personal right, should be based on autonomy and free from any possible coercion. The second objection turns on the much discussed active role of the woman in questions of child bearing, birth, and upbringing. Since the woman is the most burdened party in matters of motherhood, the priority in any case should remain with her. The will of a woman should be a reference point for the limits of legal regulation. if agreement within the family cannot be reached, then the family may break up at the request of the interested party.

According to the existing norms, the procedure can be carried out on a citizen over the age of 35-years or with at least two children. At first glance, this position seems clear and transparent - the sterilization of someone in their teens seems more contentious than sterilization of someone who is 35-40 years old. But still it raises some ethical concerns - Can you be too young for sterilization?

After all, young people are allowed to take all kinds of risks they may later regret - say in relationships, lifestyle, financial investments. Treating people as rational adults means letting them do things they may bitterly regret later. This applies as much to young competent adults as to older ones. if our patient, at the age of 26, can lawfully damage her health by, for instance, drinking a bottle of whisky every day, it might be reasonable to ask what is so special about voluntary sterilization.76

in addition, the identification of physiology with maternal or paternal desires underlines restricted access to voluntary sterilization, which is especially true for women, when the normative social paradigm associates womanhood with motherhood. Women who identify themselves as childfree or women who prefer to have children through adoption cannot go through the procedure until they turn 35, which demonstrates that medicine still takes reproduction as fundamental to the female identity and body. And from this point of view, we can hardly claim that sterilization is an available method of contraception for everyone.77

Finally, the question to be resolved is the sterilization of incompetent, mentally handicapped persons. According to Article 57 of the Federal Law"On the Fundamentals

75 Романовская О.В., Безрукова О.В. Правовое регулирование медицинской стерилизации в Российской Федерации // Наука. Общество. Государство. 2014. № 2. С. 65-75 [Olga V. Romanovskaya & Olesya V. Bezrukova, Legal Regulation of Medical Sterilization in the Russian Federation, 2 Science. Society. State 65 (2014)]; Romanovsky 2016, at 363.

76 Benn & Lupton 2005, at 1324.

77 See Jennifer Denbow, Sterilization as Cyborg Performance: Reproductive Freedom and the Regulation of Sterilisation, 35(1) Frontiers: A Journal of Women's Studies 107 (2014).

of Protection of the Public Health," with regard to a statement of the legal representative of an adult who has been declared legally incapable in the manner prescribed by law, if such a person is incapable of expressing his will because of his condition, medical sterilization can be permitted by a court decision, made with the participation of an adult who is declared legally incapable. Thus, the existing legal norms set up several requirements - the legally proclaimed incapacity of the person, his participation during the court session, and the statement of his representative. What is unclear are the requirements for the trial procedure itself and the criteria the court decision should be based on. it is logical to suppose that these rules must be set up by the Civil Procedure Code, Chapter 21, which deals with special procedural rules as regards mentally incapable persons. For example, it is important to provide mandatory participation of the attorney or guardianship authorities; mandatory establishment of medical indications; and all the relevant facts which can lead to the conclusion that the person may be deprived of the fundamental right to have and raise a child. The absence of certainty and confidence in this sphere can end up in multiple violations of human rights.

When talking about this category of patients, we face the problem of eugenic practices, because there are two major criteria we take into account: heredity, which is purely eugenic in its origin, and parenting control. Most mentally handicapped persons now live in a mixed environment. Consequently, the question of fertility control is increasingly relevant. Moreover, a suitable form of conception control for mentally handicapped people is not always easy to find. individualizing every case is very important because mental retardation can have various aetiologies, hereditary or acquired: prenatal, perinatal, and postnatal. The physician must therefore determine what the cause of mental retardation is and what the chances are that progeny could inherit the same disease. The second aspect is the potential level of parenting competence - a task that appears quite challenging. Probably, several indications should be taken into account - obstructive deformation of reality; persistent aggression towards children; lack of verbal skills; inconsistent value system; inability to transmit essential survival information or a model for life; and failure to establish and maintain interpersonal relationships.78 Taking into account the basic principles of autonomy, respect for dignity and best interest, it seems totally appropriate here that the mentally handicapped person must, as far as possible, be involved in the decision-making process.

Legal and medical scholars and practitioners in making fair attempts to discover the best solution mostly find the procedure itself unethical and permissible only when we have a situation of necessity with clear clinical criteria, such as:

- the person is simply not capable of deciding for himself or herself, at any rate in any meaningful sense;

78 J.P. Denekens et al., Sterilisation of Incompetent Mentally Handicapped Persons: A Model for Decision Making, 25(3) Journal of Medical Ethics 237, 238 (1999).

- the person is capable of making a decision, but the danger that the person will decide irresponsibly, or on the basis of inadequate knowledge or understanding, thereby placing his or her own welfare at risk, is considered to be too great; and

- others, in virtue of the relationship in which they stand in respect of the person, have a legitimate interest in that person's welfare, which in the circumstances entitles them to decide on behalf of that person.

The ethical challenges of decisions of this kind were brilliantly formulated already as far back as 1983 by Roger Higgs:

The change in attitude towards mentally subnormal has, of course, gone hand in hand with a trend towards allowing children greater freedom. in so far as this change in attitude embodies a recognition that autonomy is something to be valued, even in the child, the senile, the mentally handicapped and mentally ill, it is clearly something to be welcomed. But such commendably libertarian principles are all too often used, by those in authority, to justify a policy of non-interference, non-involvement even, in people's lives, that in practice can amount to appalling neglect.79

Conclusion

This essay is not the place to pursue these questions, especially since they are far from being resolved. Asking them, however, suggests the hope that we can define the scope of the rights under discussion. We can pretend that reproductive rights do not form our paramount interests and ignore the fact that the absence of relevant legal regulation leads to the breach of fundamental constitutional rights. But what we cannot ignore is the fact that the times are changing rapidly, and this particular group of rights is something we deal with in everyday life; its scope and meaning are increasing. it should certainly be mentioned that existing legislation is progressive and quite liberal, but it is far from perfect, and leaves legal loopholes and grey areas. When pure scientific elements are combined with profound emotions, when the genius of technological discoveries touches upon human dignity and sanctity, when passion for the technological achievements intervenes in basic human rights, then the sense of inadequacy and ignorance becomes intense and critical. Silence seems more sought after than words, and willingness to learn more prudent than the desire to speak.80 But we cannot defend anything without defining it. What is at stake is our reproductive health, the health of future generations and the human

79 Roger Higgs, Making up Her Mind: Consent, Pregnancy and Mental Handicap, 9(4) Journal of Medical Ethics 219, 225 (1983).

80 Nikolaos Chatzinikolaou, The Ethics of Assisted Reproduction, 85(1) Pubmed Journal of Reproductive immunology 3 (2010).

species as a whole. issues concerning human reproduction, the beginning of life, and medical intervention at the onset of human existence are very delicate in their nature; they involve multi-dimensional knowledge, they are difficult to comprehend, and sensitive to handle. Reproductive technologies raise complicated challenges for the individuals involved, for society as a whole, and for health care professionals. Nevertheless, while many ethical arguments are given against particular technologies, few now reject reproductive health care as such.

References

Борисова Т.Е. Суррогатное материнство в Российской Федерации: проблемы теории и практики: монография [Borisova T.E. Surrogacy in the Russian Federation: Theoretical and Practical Issues: Monograph] (Moscow: Prospect, 2012).

Denbow J. Sterilization as Cyborg Performance: Reproductive Freedom and the Regulation of Sterilisation, 35(1) Frontiers: A Journal of Women's Studies 107 (2014). https://doi.org/10.5250/fronjwomestud.35.1.0107

Karpov V. & Kaarianinen K. "Abortion Culture" in Russia: Its Origins, Scope, and Challenge to Social Development, os-22(2) Journal of Applied Sociology 13 (2005). https://doi.org/10.1177/19367244052200202

Mihai D. et al. The Ethical Aspects Regarding Cryopreserved Embryos, 25 Romanian Journal of Legal Medicine 317 (2017). https://doi.org/10.4323/rjlm.2017.317

Information about the author

Anastasia Maleshina (Moscow, Russia) - Associate Professor of Criminal Law and Criminology, Law Faculty, Lomonosov Moscow State University (1, Bldg. 13-14 Leninskie Gory, GSP-1, Moscow, 119991, Russia; e-mail: Anastasia.gololobova@gmail. com).