CC BY
11
https://doi.org/10.29013/EJLPS-20-2-42-46
Zeniv Mariia,
PhD student at the Jagiellonian University in Cracow, the Faculty of Law and Administration E-mail: mariia.zeniv@gmail.com
THE DIVERGENT APPROACH TO REGULATION OF SURROGATE MOTHERHOOD TAKEN IN GERMANY AND UKRAINE: A COMPARATIVE ANALYSIS
Abstract. The article is devoted to the problems concerning the institution of surrogate motherhood under the law of Germany and Ukraine. Paying attention to the divergent regulation thereof throughout the world, three presumptions of maternity are presented. Detailed consideration is given to the establishment of filiation as well as to registration of a child's birth in case of surrogate motherhood. In conclusion, some critical remarks are made to the adverse implications for the civil status of the child born through surrogacy.
Keywords: surrogate motherhood, surrogate mother, intended parents, filiation, maternity, genetic connection, registration.
The regulation of surrogate motherhood varies among the legal systems ofthe world, starting from its strict prohibition or lack of regulation in this area and ending with national legal systems where both altruistic and commercial forms of surrogacy are allowed. As examples of states with a divergent approach to regulating surrogate motherhood are Germany and Ukraine. Germany belongs to the group of states strictly prohibiting the procedure of surrogate motherhood. On the contrary, the Ukrainian law allows for both altruistic and commercial forms of surrogacy.
Taking into account the variety of surrogate motherhood regulations applicable throughout the world, the legal doctrine distinguishes three concepts of determining the filiation of children born through surrogate motherhood. The first is maternity of a woman who gave birth to a child, what in practice means maternity of a surrogate mother (called as the presumption of gestational maternity). The second states that a legal mother is a woman who has expressed her intention to be a mother of a child born by the surrogate mother (called as the presumption of social maternity). The
third determines the maternity of a woman who has a genetic connection with a child born as a result of surrogate motherhood [14, 53, 66]. Such divergence of legal presumptions of maternity results in many problems associated with the child's civil status issues in cross-border surrogate motherhood cases.
With regard to Ukrainian law, it is important to underline that it only allows for gestational surrogacy which provides for the use of genetic materials of at least one of the intended parents, while the use of the surrogate mother's gametes (so-called "ovum surrogacy" or "traditional surrogacy") is not permitted. As mentioned above, the Ukrainian law allows for services of surrogate motherhood to be provided both on a commercial and altruistic basis. In this respect, it should be stressed that the Ukrainian regulation of surrogate motherhood is disseminated in several legal acts, and it lacks consistency. According to the Order of the Ministry of Health of Ukraine of 9 September 2013 "On the Procedure for the Use ofAssisted Reproductive Technologies in Ukraine", surrogate motherhood is perceived as one of the methods of infertility treat-
ment by the use of assisted reproductive technologies [5]. It is laid out in the provisions of paragraph 6.1 of chapter VI thereof that a child should have a genetic connection with at least one of the intended parents while a surrogate mother should not be genetically related to it. In this regard, attention should be also drawn to the requirement that the intended parents of that child should be a married heterosexual couple. It means that under Ukrainian law when establishing the origin (filiation) ofa child born through surrogacy, the social and genetic bond with a child prevails over the gestational (biological) bond. Also, the Family Code of Ukraine of10 January 2002 in its Article 123 § 2 stipulates an unrebutted presumption of a genetic mother's maternity of a child born through surrogate motherhood. Examination of judicial practice in this regard reveals that Ukrainian courts, referring to the provisions of Article 123 of the Ukrainian Family Code, do not satisfy the surrogate mothers' applications for the establishment oftheir maternity, ifthe child is born by the use of surrogacy. The attempts of surrogate mothers to challenge the maternity of genetic mothers are not successful as well. While the Ukrainian law does not allow for challenging the maternity of an intended mother being made by a surrogate mother, it provides the intended mother with the possibility to challenge the maternity of a woman who gave birth to the child (i.e. the surrogate mother), which in practice takes place when the surrogate mother registers the child as her own [16, 240-244].
As aforementioned, the provisions ofArticle 123 of the Family Code of Ukraine are based on the presumption of so-called social maternity, i.e. maternity of an intended mother in cases of surrogate motherhood. Furthermore, in these cases, acknowledgment and establishment of maternity take place before a child is delivered, in particular, at the moment of conclusion of a surrogacy agreement. In this respect, it is rightly stressed in the Ukrainian doctrine that, notwithstanding the genetic connection with a child, when for creation of the embryo a donor's egg is being used, a donor woman does not acquire any maternity
rights to a child born as a result of assisted reproduction. In Ukrainian doctrine, the establishment of filiation of a child from the intended mother is justified by invoking the argument that this allows for achieving the main purpose of surrogacy, i.e. to resolve the infertility problems of spouses who want to become parents but are not able to have their own children due to natural infertility or other health-related problems [12, 126-127; 10, 42]. In this context, it is to be added that the theory of social parenthood that gives priority to the filiation of a child from the intended parents is also maintained under the law of some states of the United States [14, 66; 15, 410-411].
The registration of a child born as a result of a surrogate motherhood arrangement is carried out by the State Civil Registration Office according to the "Rules of State Registration of Civil Status Acts" of18 October 2000 [6]. It is stipulated therein that a newborn child should be registered not later that one month from the date of the child's birth, upon a written or oral application of its parents (or one of them), at the place of the child's birth or the place of residence of the parents. Under the paragraph 1 ofChapter 1 of Section III of this Legal Act, the state registration of the child's birth is carried out with the simultaneous determination of its filiation and assigning it a surname, name and patronymic. According to the provisions of paragraph 11 of this Chapter, if the child was delivered by a woman to whom a human embryo conceived by the married intended parents as a result of the use of assisted reproductive technologies has been transferred (i.e. by a surrogate mother), the state registration of the child's birth is carried out upon the application of the spouses who agreed to such transfer.
According to the mentioned Rules of State Registration of Civil Status Acts in Ukraine, in order to register a child's birth at the Civil Registry Office, the following documents are to be attached in the case of surrogate motherhood:
- a notarially certified written consent of the surrogate mother for registration of the married couple as legal parents of the child;
- an application of the married intended parents for state registration of the child's birth;
- passports of the intended parents;
- a marriage certificate of the intended parents;
- a medical certificate confirming the child's birth;
- a certificate confirming the genetic relationships between the intended parents (or one of them) and the child;
- a consent of a husband of the surrogate mother for her participation in surrogate motherhood, with exception for a single surrogate mother.
In the Ukrainian doctrine, it is disputed whether such a consent of a husband of the surrogate mother is obligatory to be submitted for the registration of the child's birth. Proponents of this requirement refer to the presumption of paternity of the husband of a woman who gave birth to a child. Opponents justifiably argue that such an attachment is superfluous because Ukrainian legislation requires such consent of the surrogate mother's husband at the beginning of application of surrogate motherhood to her [10, 43].
The legal regulation of filiation of the child under the German law is different from that set out in the Ukrainian legislation. The primary difference relates to the presumption of maternity of a child. According to paragraph 1591 of the Civil Code of Germany (Burgerliches Gestzbuch) [1], the mother of the child is a woman who gave birth to it ("Mutter einesKindes ist die Frau, die esgeboren hat"). This presumption of maternity corresponds to the Roman law principle of "mater semper certa est", which means that the mother is always certain. According to paragraph 1592 of the German Civil Code, the father of a child is the man who is married to the woman at the time of child's birth, or a man who acknowledged his paternity or whose paternity is established by the court's judgment [9, 436-437; 12, 125]. It is also to be noted that in Germany there is the Act for Protection of Embryos (Embryonenschutzgesetz, EschG) [2] of13 December 1990, which regulates the issues of extracorporeal (in vitro) fertilization. It prohibits
the artificial insemination of a woman who, after delivering the child, intends to transfer the child and her parental rights to the intended mother through a surrogate arrangement. The 1976 German Adoption Mediation Act (Adoptionsvermittlungsgesetz) [3] does not allow for the arrangement of a surrogate mother be considered as placement for adoption in both internal and cross-border cases. In addition, advertising of the offers related to surrogate motherhood might be considered as an administrative offence. Moreover, the use of surrogate motherhood is prohibited under the German criminal law [11, 233240; 13, 60]. However, it is stated in the German doctrine that the consequences of surrogacy carried out in violation of the law must be given particular consideration in every individual case [17; 84].
Concerning surrogate motherhood, the important judgment was rendered by the Federal Court ofJustice of Germnay (Bundesgerichtshof, BGH) on "Anerken-nungsfahigkeit einer auslandischen Entscheidung uber die rechtliche Elternschaft des biologischen Vaters und seines eingetragenen Lebenspartners im Fall der Leihmutterschaft" of 10 December 2014 [4]. This judgment allowed for recognition ofa foreign decisions establishing the filiation of a child from the intended parents. It derives therefrom that the recognition of foreign judgments establishing the paternity ofthe child born as a result of transnational surrogacy arrangements is not contrary to the German public order (orde public), if there is a genetic connection between a child and one or both of intended parents. This is justified by the statement that when examining whether the decision violates public policy, human rights guaranteed by the European Convention on Human Rights must also be taken into account [12, 125]. The line of reasoning expressed in this judgment has been later challenged by the Oberlandesgericht Braunschweig in its judgment of 12 April 2017 refusing to recognize the foreign judgment determining the filiation of a child with the intended parents basing on the justification that such recognition would be contrary to the German public order (in particular, the fundamental rules
prohibiting the use of surrogate motherhood, as well as the presumption of maternity of a woman who gave birth to the child) [7, 654].
In this context, it is also vital to mention the recently rendered judgment of the Federal Court of Justice of Germany of 20 March 2019. In this judgment, despite the existence of a genetic connection between both the intended parents and a child, the maternity of a surrogate mother as the legal mother of the child born by the use of surrogate motherhood is confirmed. It is ruled that the surrogate mother should be entered into the German Birth Registry as the mother of that child. It is worth underlining that in this case the Ukrainian birth certificate as a foreign one was given declaratory character and, as it is not a judicial decision, the rules of recognition and enforcement of foreign judgments were not applied. In order to establish the filiation of the child, the conflict of laws rules were applied leading to determination of the German law as the law applicable. According to the German material law, as it was stated above, a mother of a child is the woman who gave birth to it. It is concluded in this case that after paternity of the intended father is confirmed, in order for the intended mother to become a legal mother of the child the adoption procedure should be used [8, 857-866].
Summarizing, it should be pointed out that in cross-border surrogacy cases one of the most acute problems is that of determining the filiation of a child born as a result of surrogate motherhood. The present study analyzing the regulation of surrogate motherhood in Germany and Ukraine illustrates the complexity of problems that derive from the use of surrogate motherhood in cross-border situations when the intended parents attempt to have the foreign child's birth certificate as well as their parentage of the child born abroad through the use of surrogate motherhood being recognized in the country of their residence where surrogate motherhood is prohibited by the law. This brings to the statement that a lack of consistent regulation of the situation of the child born by a surrogate mother has adverse implications for the civil status of the child throughout the world. Furthermore, the uncertainty of the child's legal status and problems arising from the use of surrogate motherhood put a child in an unfavorable situation and does not conform with its best interests. At the same time, given the issues of the filiation of the child being embedded in national legal and cultural traditions, the widespread accession by states all over the world to a potential international treaty in this field seems not to be successfully achieved.
References:
1. Bürgerliches Gesetzbuch (BGB) vom 18. August 1896, available on the webpage: URL: <https://www. gesetze-im-internet.de/bgb/BJNR001950896.html> [last accessed: 4.07.2020].
2. Gesetz zum Schutz von Embryonen (Embryonenschutzgesetz - ESchG) vom 13. Dezember 1990, available on the webpage: URL: https://www.gesetze-im-internet.de/eschg/BJNR027460990.html [last accessed: 6.07.2020].
3. Gesetz über die Vermittlung der Annahme als Kind und über das Verbot der Vermittlung von Ersatzmüttern (Adoptionsvermittlungsgesetz - AdVermiG) vom 7. Februar 1976, available on the webpage: URL: https://www.gesetze-im-internet.de/advermig_1976/BJNR017620976.html [last accessed: 8.07.2020].
4. Beschluss von Bundesgerichtshof vom 10. Dezember 2014, XII ZB463/13. Available on the webpage: URL: http://www.rechtsprechung-im-internet.de/jportal/portal/t/19ke/page/bsjrsprod.psml?pid=D okumentanzeige&showdoccase=1&js_peid=Trefferliste&documentnumber=1&numberofresults=109 08&fromdoctodoc=yes&doc.id=KÜRE311822014&doc.part=L&doc.price=0.0&doc.hl=1#focuspoint [last accessed: 5.07.2020].
5. Наказ Мшктерства охорони здоров>я Украши вЦ 9.09.2013 № 787 «Про затвердження Порядку застосування допом1жних репродуктивных технологш», Офщшний вкник Украши в1д 01.11.2013— 2013 р.- № 82.- стор. 446.- стаття 3064.- код акта 69367/2013.
6. Наказ Мшктерства юстици Украши № 52/5 вЦ 18.10.2000 „Про затвердження Правил державно!' реестраци акпв громадянського стану в Укра'шГ, Офщшний вкник Украши в1д 03.11.2000-2000 р.-№ 42.- стор. 205.- стаття 1803.- код акта 16932/2000.
7. Bobrzynska O. Surrogate motherhood: current trends and the comparative perspective / Mostowik P., ed. Fundamental legal problems of surrogate motherhood. Global perspective.- Warsaw: Wydawnictwo IWS; 2019.- P. 645-657.
8. Figura-Goralczyk E. Remarks about Judgment of Bundesgerichtshof of 20 March 2019 (XII ZB530/17) / Mostowik P., ed. Fundamental legal problems of surrogate motherhood. Global perspective.- Warsaw: Wydawnictwo IWS; 2019.- P. 857-866.
9. Herts A. A. Surrogate motherhood in Ukraine: method of infertility treatment, judges' activism and doctrine / Mostowik P., ed. Fundamental legal problems of surrogate motherhood. Global perspective.-Warsaw: Wydawnictwo IWS; 2019.- P. 421-447.
10. Гуменна Н. Особливост1 визначення в Укра!ш походження дитини, народжено!' сурогатною мапр'ю // Visegrad Journal on Human Rights. 2016.- № 5/2.- P. 41-46.
11. Lagarde P. Die Leihmutterschaft: Probleme des Sach- und des Kollisionsrecht // Zeitschriftfür Europäisches Privatrecht. 2015.- No. 2.- P. 233-240.
12. Розгон О. В. Колзшне регулювання встановлення походження дитини при застосуванш сурогат-ного материнства // Альманах мiжнародного права. 2017.- Випуск 17.- P. 123-133.
13. Розгон О. В. Проблема встановлення походження дггей при зас тосуванш допомгжних репродук-тивних технологш // Науковi записки 1нституту законодавства Верховно!' Ради Украши. 2017.-№ 4.- P. 56-63.
14. Soniewicka M. Ethical and philosophical issues arising from surrogate motherhood / Mostowik P., ed. Fundamental legal problems of surrogate motherhood. Global perspective. - Warsaw: Wydawnictwo IWS; 2019.- P. 45-97.
15. Walachowska M. Surrogate motherhood under different laws and federal issues - the case of the USA / Mostowik P., ed. Fundamental legal problems of surrogate motherhood. Global perspective.- Warsaw: Wydawnictwo IWS; 2019.- P. 399-420.
16. Zeniv M. Macierzynstwo zast^pcze w prawie ukrainskim / Mostowik P., ed. Fundamental legal problems of surrogate motherhood. Global perspective.- Warsaw: Wydawnictwo IWS; 2019.- P. 233-252.
17. Diel A. Leihmutterschaft und Reproduktionstourismus. Frankfurt am Main: Wolfgang Metzner Verlag, 2014.- 282 p.
