How “surrogate” children and their parents became hostages of criminal cases in the Russian Federation

Surrogacy: what is it?

First, let's figure out what surrogacy is. First of all, this is one of the modern reproduction technologies that allows young Russian couples to conceive and bear a child even with infertility.

Surrogacy is the artificial insemination, bearing and birth of a child by a woman under a contract concluded between this woman and the child’s blood parents (citizens on the basis of whose genetic material fertilization was carried out).

This reproductive technology is based on contractual relations - surrogate children are born precisely on the basis of an agreement on the service of bearing them. At the same time, the children themselves cannot be the subject of this contract - that is, the parents of the child are initially the owners of the genetic material, and not the woman who carried out the pregnancy, regardless of the final results of the program.

Such a contract is a new form of agreement, different from the civil law forms regulated by the Civil Code of the Russian Federation. Most of all, such an agreement is similar to a contract for the provision of paid services, regulated by Art. 779 of the Civil Code of the Russian Federation.

The peculiarity of this reproductive technology is that three people are initially involved in conception:

genetic father who provided the sperm;
the genetic mother who provided the egg;
surrogate mother carrying a child.

Let's figure out who a surrogate mother is. This should be considered a woman of childbearing age who has agreed on a contractual basis to bear someone else’s child and in the future does not claim to be his blood mother. After the baby is born, only genetic parents acquire full legal status with corresponding rights and responsibilities.

As for the surrogate mother, from the moment the child is born, her services under the contract are considered fulfilled. Its main task is to provide favorable conditions for intrauterine development, and if such have been created, then the woman’s task is considered completed, regardless of the outcome of pregnancy and childbirth.

Next, we will look at whether surrogacy is legal in Russia, and if so, what legal acts regulate it.

What does the Family Code say about surrogacy?

Legal regulation of surrogacy is based on Articles 51 and 52 of the Family Code of the Russian Federation. They state that biological parents have the right to a minor child born from a surrogate mother only with her consent.

This means that if the woman changes her mind, she may not give up the child. In fact, after the baby is born, she writes a refusal. It is he who gives the right to biological parents to pick up the baby and draw up documents in their name.

In order not to encounter such a problem, parents should carefully approach drawing up the terms of the agreement between them and the surrogate mother. You won't be able to do this on your own. You will have to seek help from a lawyer . The best option is to contact an organization that specializes in full support of surrogacy transactions.

Legislative regulation

Until recently, Russian legislation did not contain the concept of surrogacy at all, completely not regulating this reproduction technology and leaving it outside the legal framework. The first legal grounds for its legal implementation appeared in 2011, finally becoming established in 2013, along with the entry into force of the corresponding order of the Ministry of Health.

Today, legal regulation of surrogate fertilization in the Russian Federation is carried out by:

Federal Law of November 21, 2011 No. 323 “On the fundamentals of protecting the health of citizens in the Russian Federation”, in particular, Art. 55. It defines the concept of surrogacy, criteria for selecting mothers, conditions under which couples can resort to third-party gestation services, conditions and rights of donors of genetic material and other points.
Order of the Ministry of Health dated August 30, 2012 No. 107n. They, in particular, paragraphs 77-83, define the procedure for using surrogacy as a reproductive technology, restrictions on its use, contraindications, stages of implementation, and so on.
Family code. In particular, Art. 51 of the RF IC defines the specifics of making an entry about the parents of a surrogate child in the birth register. Similar features are defined in Art. 16 Federal Law of November 15, 1997 No. 143 “On acts of civil status.”

As for the relationship between the parties within the framework of the childbearing service, they are for the most part regulated by an agreement concluded between the parties.

Legal aspects of surrogacy

Laws on surrogacy in Russia

The surrogacy program in Russia is regulated on the basis of a number of laws and regulations, namely:

Article 55 of the Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation”
. This law came into force on January 1, 2012 and envisages a number of positive changes in the field of regulation of surrogacy. Thus, paragraph 9 provides a definition of the method: “surrogacy is the bearing and birth of a child (including premature birth) under an agreement concluded between a surrogate mother (a woman carrying a fetus after the transfer of a donor embryo) and potential parents whose reproductive cells used for fertilization, or by a single woman for whom bearing and giving birth to a child is impossible for medical reasons.” Clause 10 of the same article states that “a surrogate mother can be a woman aged from twenty to thirty-five years, who has at least one healthy child of her own, who has received a medical certificate of satisfactory health, who has given written informed voluntary consent to medical intervention. A woman who is married, registered in the manner established by the legislation of the Russian Federation, can be a surrogate mother only with the written consent of her husband. A surrogate mother cannot simultaneously be an egg donor.”
Art.
51 and 52 of the Family Code of the Russian Federation . According to Art. 51, “persons who are married to each other and have given their consent in writing to the implantation of an embryo into another woman for the purpose of carrying it, can be registered as the parents of the child only with the consent of the woman who gave birth to the child (surrogate mother).” According to Art. 52, “spouses who consented to implantation of an embryo into another woman, as well as a surrogate mother (part two of paragraph 4 of Article 51 of this Code) do not have the right to refer to these circumstances when challenging maternity and paternity after the parents have been recorded in the birth register.”
Art.
16 of the Federal Law “On Acts of Civil Status” , which determines the procedure for registering a newborn in the civil registry office: “during state registration of the birth of a child, at the request of spouses who have given consent to the implantation of an embryo into another woman for the purpose of bearing it, simultaneously with a document confirming the fact of the birth of the child, a document issued by a medical organization must be presented confirming the fact of obtaining the consent of the woman who gave birth to the child (surrogate mother) to register the specified spouses as the child’s parents.”
Order No. 803n of the Ministry of Health of the Russian Federation
dated July 31, 2020 “On the procedure for using assisted reproductive technologies, contraindications and restrictions on their use,” which defines the indications for the surrogacy procedure in Russia, the requirements for surrogate mothers, as well as the scope of research for the replacement mothers and biological parents.

Thus, summarizing all that has been said, we see that the surrogacy procedure in Russia is permitted and regulated on the basis of the country’s legislation. Both married couples (including those who are not officially married) and single women who are unable to bear and give birth to a child on their own can take part in the program. The maximum age of biological parents is not defined. Registration of the genetic father and mother of a newborn as parents in the civil registry office is carried out on the basis of a certificate from a medical institution confirming the fact of his birth, as well as the written consent of the surrogate mother.

For our part, we would like to recommend that future parents use the services of a legal company at an IVF clinic or an independent surrogacy agency. What are the advantages of this choice?

the agreement between the surrogate mother and biological parents will be drawn up by professional lawyers with extensive practical experience in the field of surrogacy;
a surrogacy agency or a law firm at an IVF clinic provides support for the procedure at all stages and guarantees the high quality of the services provided. The agency (company) ensures the selection of a surrogate mother who fully meets all the requirements, conducts IVF, ensures the surrogate mother’s relocation and accommodation until the moment of birth, as well as solving legal issues of any complexity.
Nova Clinic carries out pregnancy management for the surrogate mother (at the request of the biological parents), and also provides assistance in obtaining a visa, booking tickets, organizing meetings and accommodation of genetic parents from any country in the world. In addition, we are ready to provide a translator and a personal driver (including those with knowledge of foreign languages) for the duration of your stay in Moscow. Russian legislation in the field of surrogacy can be characterized as loyal, and therefore many citizens of states where the surrogacy program is either prohibited by law or is not regulated apply to surrogacy clinics and agencies in the Russian Federation.

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Surrogate mother: who can become

The requirements for a surrogate mother that a woman carrying someone else’s child under a contract must meet are defined in clause 10 of Art. 55 Federal Law dated November 21, 2011 No. 323 and clauses 78, 80 of the Order of the Ministry of Health dated August 30, 2012 No. 107n. According to them, women can participate in surrogacy programs for carrying other people’s children:

those of childbearing age 20-35 years;
who have given birth to at least one healthy child;
having an appropriate level of health, as confirmed by a medical opinion;
do not have diseases included in the list of contraindications;
consented to medical intervention in their body.

Please note that those who can be a surrogate mother cannot simultaneously provide their eggs for fertilization. Moreover, if a legally married woman wishes to provide pregnancy services, she must obtain the written consent of her spouse.

Surrogacy for “single” men.

Disputes around this issue have been going on for more than one year.

The very fact of the physical possibility of using surrogacy in such a format is actively used by a group of people as an argument for a complete ban on surrogacy.

The question “to be or not to be” requires legislative resolution, and until this point one should be guided by the literal meaning of the regulations governing the conditions and procedure for the provision of medical services.

According to Part 2 of Art. 55 Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation”, The procedure for the use of assisted reproductive technologies, contraindications and restrictions on their use are approved by the authorized federal executive body.

In Part 2 of Article 55 of this Law, a special criterion is applied to persons who have the right to surrogacy, formulated as follows: “carrying and giving birth to a child is impossible for medical reasons.”

According to paragraph 70 of the Order of the Ministry of Health of Russia dated July 31, 2020 N 803n “On the procedure for using assisted reproductive technologies, contraindications and restrictions on their use,” the indications for the use of surrogacy are:

a) absence of the uterus;

b) deformation of the cavity or cervix, when correction is impossible or has no effect;

c) pathology of the endometrium (synechia, obliteration of the uterine cavity, endometrial atrophy), when correction is impossible or has no effect;

d) diseases (conditions) included in the List of Contraindications;

e) absence of pregnancy after repeated attempts to transfer embryos (3 or more attempts when transferring good quality embryos);

f) habitual miscarriage not associated with genetic pathology.

It is quite obvious that no man, due to his anatomical characteristics, can have the indications for surrogacy established in the Order.

The possibility of using surrogacy beyond established medical indications is not provided for by law.

Who is eligible to participate in the program

Something else to pay attention to is who is allowed to participate in surrogacy programs as genetic parents. The fact is that domestic legislation on this issue is very contradictory and is quite at odds with judicial practice. So, based on the direct instructions in paragraph 9 of Art. 55 Federal Law No. 323 dated November 21, 2011, an agreement with a surrogate mother can be concluded by:

potential parents whose genetic material will be used to conceive a child;
a single woman who, due to medical reasons, is unable to conceive, bear and give birth to her own child.

There are no other indications in the law about persons who can take advantage of the reproductive program. According to many, this means that no other person can become parents through the reproductive program.

The situation is also aggravated by clause 4 of Art. 51 of the RF IC, which determines that only couples who have received the consent of the surrogate mother and are married can register as parents.

In fact, the law does not contain any restrictions at all for persons wishing to use the services of surrogate mothers.

It is misleading that the legislation does not fully regulate the process of registering surrogate children, but the very judgment that only married couples can use the services of reproductive technology is fundamentally erroneous.

Surrogacy for single men

Another controversial issue is the possibility of concluding a contract with a surrogate mother for a single man. Allegedly due to the absence of a direct reference to single men in paragraph 9 of Art. 55 Federal Law No. 323 dated November 21, 2011, many lawyers claim that such reproduction programs are closed to them.

In fact, this is a stereotype born of the legislative contradictions and gaps mentioned above. This judgment is erroneous, if only because the law does not provide restrictions on participation in reproduction programs not only by marital status, but also by gender.

Judicial practice allows us to understand the fallacy of this judgment. Thus, for the first time, a case of this kind was considered in the capital back in 2010, that is, even before the official legalization of surrogacy.

Then a single resident of the capital, through the court, managed to oblige the local registry office to register a child born under a reproductive program from only one father.

This decision became the first precedent when a child was registered, and there was a dash in the “mother” column. The court motivated its decision by the fact that Russian legislation does not contain restrictions on participation in artificial reproduction programs based on gender or marital characteristics.

Moreover, according to the Constitution, all citizens of the Russian Federation are equal in their rights, which means an equal right to participate in surrogacy for both single women and men. Subsequently, Russian courts made several more precedent-setting decisions on this issue.

Let us note that the most striking example of the use of surrogacy by a single man is the singer Philip Kirkorov, who registered his first surrogate child back in 2011.

What are the rights and responsibilities of a surrogate mother?

Despite the presence of references to reproduction programs in the legislation, not everything about surrogacy can be regulated in law.

In particular, the rights and obligations of the parties are subject to regulation exclusively by agreement - the legislation does not coordinate these aspects of the legal relationship between genetic parents and the surrogate mother.

Having studied examples of standard contracts, we were able to identify the basic rights and responsibilities that are assigned to women who agree to bear other people’s children. Thus, the rights of surrogate mothers include the rights to:

material remuneration subject to compliance with all duties assigned to it in the amount specified in the contract;
payment of all expenses associated with medical examination and fertilization;
payment for medical care related to pregnancy and childbirth;
ensuring full rehabilitation in the postpartum period;
compensation for all expenses associated with bearing someone else’s child;
other rights specified in the contract.

At the same time, the surrogate mother is assigned a list of responsibilities, which, as a rule, include:

creating favorable conditions for bearing a healthy child (ban on alcohol and tobacco, maintaining a healthy lifestyle, and so on);
regular observation by a doctor and strict compliance with all his recommendations and instructions;
informing customers about the progress of pregnancy;
providing customers with access to up-to-date and objective information about the health status of a woman and the child she is carrying;
other duties specified in the contract.

Is it possible for a surrogate mother to claim a newborn?

One of the main questions that frightens potential parents is whether the surrogate mother can keep the child.

Despite the very essence of the remunerative relationship between genetic parents and the woman carrying their child, the child itself cannot be the subject of a concluded contract - that is, even if the obligation to hand over the child to the parents is stated in the contract, this does not at all guarantee its transfer.

Registration of a newborn surrogate child by a married couple is possible only with the consent of the surrogate mother. That is, without giving such consent, a woman can quite legally keep someone else’s newborn child, becoming his full-fledged mother.

This position may be motivated by maternal feelings that arise in the woman, or by the desire to persuade the genetic parents to incur additional expenses.

It is worthwhile to figure out whether the genetic parent has the right to challenge paternity in this case. Of course, the law does not deprive him of this opportunity, however, according to paragraph 3 of Art. 52 of the RF IC, when challenging the paternity or maternity of a surrogate mother, the applicant does not have the right to refer to this circumstance.

That is, the only thing that will truly establish the origin of a child is a genetic examination.

In addition, the provisions of the contract may demotivate a woman carrying a child to keep him, depriving her of all material rewards and obliging her to reimburse all expenses incurred.

A non-childish question: what problems of surrogacy will a notary solve?

Surrogacy can be treated differently, but the procedure for using this reproductive technology must clearly be clearly regulated by law. And the point here is not so much about who and under what circumstances has the right to turn to this technique, but about the need to guarantee the legality of the relationship that arises between the family and the surrogate mother and the protection of the rights of all participants in the process. One way or another, a surrogacy agreement is a transaction. And in a situation where the document is concluded “on the knee” - and this is exactly how it often happens now - the risks of both parties are enormous: there is no confidence that the surrogate mother will give up the child after his birth, and the parents will pay for the service provided on time, it is not clear how resolve force majeure situations during pregnancy or childbirth, etc.

Surrogate mothers often complain about the agencies they worked with. For example, at the end of 2021, the media wrote about how a woman carrying a child as part of a surrogacy agreement reported to the police that she was forcibly kept in an apartment rented during her pregnancy and refused to be taken to the hospital to receive medical care. The activities of such agencies are not regulated by law, which is why they can actually do whatever they want. There are examples when women are not returned the original documents previously requested from them, thereby forcing them to continue providing surrogacy services after one successful experience. Or when pressure is put on women who at some point decide to give up this kind of income. Financial disputes also arise: the agency may well take a significant part of the amount due to the surrogate mother, fine her without legal grounds, etc.

Conflicts over money can also arise directly between the parties to a transaction. As a rule, in addition to the final remuneration for the service provided, the surrogate mother receives regular payments throughout the pregnancy - for medical care, quality food, and special clothing. If the volume, frequency, method of transferring such payments and the form of reporting for them are not agreed upon in advance, countless disputes may arise around this topic. For biological parents, the main risk is the sudden refusal of the surrogate mother to give up the child. Moreover, we are not always talking about emotional aspects - some surrogate mothers threaten to keep the baby for themselves, thereby extorting additional money from the other party to the transaction. In this case, you can only achieve protection of your rights through the courts, and this will not be easy. According to Russian law, a woman who has given birth to a child has a presumption of motherhood. And an agreement on the provision of surrogacy services, concluded in simple written form, can easily be invalidated. Today the law does not even provide for a standard form for it.

Involving a specialized agency or medical institution in the execution of a surrogacy contract does not completely eliminate the risks. An agency specializing in the provision of surrogacy services has everything necessary to help future parents choose a surrogate mother and a clinic, resolve organizational issues at all stages of interaction between the parties, and adequately calculate the final cost of the service in each specific case, but an independent specialist must be responsible for the legal side of the issue with the necessary qualifications and authority. The sensational bill, which contains amendments to the Law “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation” and is intended to regulate all the nuances around surrogacy, proposes to transfer this function to a notary.

An important role here is played not only by the notary’s knowledge of all the necessary legal nuances, but also by his impartiality and independence (they are ensured by law) - this allows both the family planning a child and the surrogate mother to be confident that their interests will be taken into account and each participant will receive equal legal protection. In addition, according to the law, a notary must check the real intentions of the parties during a personal conversation. That is, such an important point as the surrogate mother’s consent to give the child to the second party to the contract immediately after his birth will be clarified unambiguously and recorded initially.

An important issue for many parents - maintaining the secret of the birth of a child - can also, thanks to a notary, be correctly spelled out in the contract, including a clause on liability for disclosure. An agreement concluded through an agency in simple written form does not provide such guarantees. Plus, a surrogacy agreement with a notary’s seal, unlike an agreement concluded in simple written form, will have special evidentiary force in court if a dispute subsequently arises between the parties.

In addition to the fact that the notary will take care of all legal issues, he can also send the necessary information to the Unified State Register of Civil Registry Offices. If desired, the parties to the agreement can also use a notary to settle the transaction through his deposit account. This is convenient - there is no need to cash out money and go with it to the same bank (if we use a safe deposit box for payments), and, importantly, it is safe. The moment of transfer of funds is controlled by the notary himself - the executor will receive the money only after fulfilling all the conditions specified in the contract. When we are talking about large sums - and prices for surrogacy services today start at about 2 million rubles - paying the performer with a simple transfer “from card to card” is extremely risky. If an agreement on the provision of surrogacy services is certified by a notary, then the cost of settlement through a notary's deposit will be lower than in the situation with an agreement concluded in simple written form.

Only with a balanced and comprehensive approach will future parents and the woman who has decided to take on the role of a surrogate mother be able to calmly agree on all the nuances and go all the way from concluding an agreement to the birth of the long-awaited baby, without doubting each other.

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How to become a surrogate mother

Many women are attracted to surrogacy. Motivated by financial rewards or the desire to help infertile couples, many wonder how to become a surrogate mother.

Women wishing to participate in reproductive programs must contact one of the reproductive medicine clinics. As a rule, they are the ones who select surrogate mothers for their clients. They are also involved in preparing the contract, accommodation, examination and financial support for women.

After receiving all the necessary information, the woman is usually placed in the clinic’s database, where potential clients can find her. Based on the results of negotiations, an agreement is signed between the woman, genetic parents and the clinic, after which fertilization and all related procedures occur.

Problems of surrogacy in the Russian Federation

Due to the fact that surrogacy is a fairly young branch of reproductive medicine, the implementation of such programs is associated with a lot of problems of both a moral and legal nature. Let's look at them briefly.

Legal problems

The most important problem should be considered the imperfection and inconsistency of domestic legislation, which is why many potential parents have doubts whether it is even legal to bear children by women who are not their genetic mothers.

And if the fears of candidates for parents are largely unfounded, then the legislation really leaves much to be desired:

firstly, various legal acts contain conflicting or incomplete rules regarding persons who can participate in assisted reproductive programs;
secondly, the law very vaguely regulates the procedure for registering newborn surrogate children;
thirdly, legally there are no legal consequences at all for women who decide to keep a surrogate child for themselves;
fourthly, although the legislation contains an indication of the need to conclude an agreement between the parties, it does not regulate its content, mandatory conditions and other aspects.

Ethical issues

At the same time, surrogacy faces the problem of public rejection and censure of this institution. Ethical problems are expressed in several aspects, in particular:

in the fears of skeptics that the practice of surrogacy will turn children into some kind of commodity, the circulation of which will become free on the market. They say that those who can afford it will hire women who will bear their offspring.
in the opinion that reproductive programs exploit the female body, which negatively affects their mental health, maternal feelings, and so on.
in the religious concept of the traditional Orthodox Church, which believes that reproductive programs traumatize not only the woman carrying the child, but also the child himself, who may experience a “crisis of identity.”

Advantages and disadvantages of surrogacy

Like any other modern institution, assisted reproductive programs have their pros and cons. Among the advantages of surrogacy are:

the opportunity to give birth to their child even for couples where the partners suffer from infertility;
the ability of genetic parents to avoid all the inconveniences associated with pregnancy and childbirth;
the ability to maintain health if the independent birth of a baby threatens it;
financial reward for the surrogate mother, which will help improve her financial situation;
the possibility of concluding a contract free of charge, and so on.

There are, however, disadvantages, including:

the risk that the surrogate mother will refuse to give up the child;
lack of guarantees of a positive outcome of pregnancy and childbirth;
lack of guarantees that the child will be born healthy;
imperfection of legislation regulating this process, and so on.

With all this, surrogacy remains one of the most common methods of reproduction for infertile couples and single citizens, which determines its important place in modern society.