Surrogacy regulation: Trends in international and Russian law

Abstract

INTRODUCTION. This paper reflects the main points and approaches to the international legal regulation of surrogacy. It demonstrates the existing inconsistency in the stances of states concerning this controversial (first of all from the ethical point of view) kind of assisted reproductive technologies, and the resulting contradictions. The current extremely fragmented international legal regulation of surrogacy issues presented in the article illustrates the need of the parties involved in the process to develop unified approaches, at least regarding the most commonly encountered issues that would guarantee the protection of human rights and freedoms, especially those of a child. The article also cites the example of one of the most liberal legal systems for surrogacy, the Russian Federation, to discuss an issue that has arisen for the Russian legislator in the practical implementation of surrogacy - the right of single people, especially of single men, to become a single parent under the surrogate motherhood programme in the Russian Federation. The article draws attention to the absence of legal documents regulating surrogacy for single fathers in the Russian Federation, while the existing documents regulating the institution of surrogacy breed a number of contradictions (such documents include: Family Code of the Russian Federation No. 223-FZ of 29 December 1995; Federal Law “On Basics of Health Protection of the Citizens in the Russian Federation” No. 323-FZ of 21 November 2011; Federal Law “On Acts of Civil Status” No. 143-FZ of 15 November 1997; Order of the Ministry of Health of the Russian Federation No. 107n of 30 August 2012 “On the Procedure for the Use of Assisted Reproductive Technologies, Contraindications and Restrictions on Their Use”; Order of the Ministry of Health of the Russian Federation No. 803n of 31 July 2020 “On the Procedure for the Use of Assisted Reproductive Technologies, Contraindications and Restrictions on Their Use”). Analysing current practice, based on existing Russian legislation, gives ground for its revision. The special character of the issue is that under the existing legal framework, the question of their right to a surrogate child arises for single men twice: at the stage of 'conceiving the child' and at the stage of registration (i.e., the stage of registration of such a man as the sole parent for a surrogate child). The article puts an emphasis on the great role of the Russian courts in resolving a number of issues with ambiguous interpretation of the current legislation. The court practice on the indicated issues is noted to have strengthened the arguments in favour of the reform. The article pays special attention to the investigation process in a new criminal case - the “2020 Doctors' case”. Amid the existing norms of Russian law on surrogacy as well as this “Doctors’ case”, the article indicates the emerging discrimination against single men in the Russian Federation.MATERIALS AND METHODS. The analysis in the article is based on international universal and regional European legal instruments, case-law of the European Court of Human Rights and the Court of Justice of the European Union, documents of the European Parliament, the International Commission on Civil Status, the Hague Conference on Private International Law, the International Social Service, UN treaty bodies and the UN Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and the production of other materials containing child abuse. It is also based on the legal acts of the Member States of the European Union and of the Russian Federation, academic articles and emerging practice. The research is based on analysis, synthesis, deduction, induction, analogy, hermeneutics, observation, dialectics, as well as on descriptive, systematic and comparative methods. Given the specific nature of the topic, an interdisciplinary approach is also applied, which allows the issues raised to be considered from the legal, medical and social perspectives.RESEARCH RESULTS. Presently, it is beyond doubt that a unified international instrument on surrogacy needs developing. Such a document should, first and foremost, contain a clear conceptual apparatus enabling all parties concerned to have a common understanding of the key issues surrounding surrogacy. Furthermore, it should reflect the main basic approaches to the most common issues encountered in practice, which today are resolved ambiguously and, in fact, their resolution depends on the circumstances of each particular case. Even the minimal outline of the common dimensions in the field of surrogacy at the international level would provide serious guarantees of the human rights protection and, above all, of the rights of a child. The authors consider that, as far as surrogacy regulation in the Russian Federation is concerned, it is reasonable to avoid a complete ban on assisted reproductive technologies in Russia. Forasmuch as it is an act of cooperation aimed at giving every person the opportunity to become a parent, rather than the commercialization of child-bearing. In view of this, it seems necessary to revise the range of surrogacy subjects in the Russian Federation with an eye to its expansion.DISCUSSION AND CONCLUSIONS. Assisted reproductive technologies have recently become increasingly common, on the one hand due to relevant scientific advances, and on the other hand due to the ever-growing demand for such technologies. This paper examines some of the topical issues related to the surrogate motherhood. Practice shows that the exclusive regulation of this issue at the national level does not allow for the relations ensuing the application of such assisted reproductive technologies to be regulated completely. Thereupon, the authors deem it reasonable to define common principles and standards of surrogacy application at the international level in order to remove a number of controversies existing today in relation to the use of international surrogate motherhood. At the same time, when defining such common international approaches, special attention is suggested to be paid to particular issues arising at the national level and being of principal importance in terms of international legal regulation of surrogacy, such as the possibility for single persons to use this kind of assisted reproductive technology and to enjoy the relevant state support measures.