Biomedically assisted reproduction and child birth: Surrogate motherhood in comparative European law and Serbia

In: Stanovništvo: Population = Naselenie, Band 51, Heft 1, S. 1-21

Abstract

Surrogate motherhood is an arrangement in which a woman agrees to carry and
deliver a child for another couple who ordered the pregnancy. This procedure
is applied today in Great Britain, Holland (although without legal
regulations), Israel, Greece, Ukraine, Armenia, Georgia, the USA and
Australia, and it is forbidden in France, Austria, Spain, Germany,
Switzerland and Slovenia. There are two types of surrogacy, one when the
woman gives birth to a child who is genetically her own ("partial", genetic
surrogacy), and the other where the surrogate mother only carries and gives
birth to a child, whereby the child is genetically from the couple that
wanted the child, or the fertilized egg is from a third woman (donor), or
the embryo was donated ("full", "total", gestational surrogacy). In these
cases two women take part in conception and birth of the child while in the
last case there is a third woman who will raise the child. Biologically
observed, the woman whose egg has been fertilized may be called the genetic
mother, while the woman who carried the pregnancy and gave birth to the
child - the gestational carrier. Taking into consideration that the
Preliminary Draft of the Serbian Civil Law anticipates the introduction of
surrogate motherhood into domestic law, we believe restrictive solutions
should first be taken into consideration. This would mean that only full
surrogating should be allowed, namely the egg should be from the woman who
wants the child and not the surrogate mother. In domestic conditions,
genetic surrogation should not be allowed as it leads to confusion in family
relations, and kinships still have an important social and legal
significance in our country. The surrogate mother should be a woman who has
already given birth, because in that way any possible shocks which might
arise after birth when the woman who has to handover the child to the
intended couple would be avoided. The next condition would be that persons
involved in this procedure should have usual residency in Serbia so as to
prevent any international complications or problems. As far as compensation
is concerned, only compensation of so-called reasonable expenses which the
surrogate mother would incur should be allowed. The surrogate contract
should be approved by a court judge, who would have the obligation to
determine if all legal conditions have been fulfilled for surrogate
motherhood, and to explain the contract effects to the contracting parties.
Apart from that, psycho-social counselling of all persons involved in the
procedure should be anticipated.