Issues in determining parenthood in “surrogacy”

Introduction

Determining “Whose baby is it?” has always been a question of great complexity and seriousness. Modern medical technologies have facilitated the search for answers, for example DNA analysis can be used to determine genetic links, but these technologies have made the situation more complicated because it is easier to manipulate gametes and embryos in medically assisted reproduction (MAR).

In 1989, the United Nations General Assembly issued the Convention on the Rights of the Child, which is binding on its signatories. Only the USA and Somalia have not ratified it. Article 7 of the Convention requires that

a child be registered immediately after birth and have from birth the right to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents. It further obliges signatories to ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular, where the child would otherwise be stateless.

In a sense, the Convention thus brought a new perspective to parenting. So much so that we can no longer look at parenting primarily from the point of view of parental responsibility (i.e. “whose baby is it?”), but have to see it as a set of rights both conferred on and inherent to the child in the context of globally binding national obligations.

Who then is a parent in the 21st century? Is it the person who provide the gametes, the woman who carries and gives birth to the child, the person(s) named on the child’s birth certificate, other person(s) with whom the child has an emotional fulfilling child–parent(s) relationship? This list of potential parents is far from complete. We are in an age of technology that gives us so much power. We can manipulate mitochondria in such a way that may ultimately lead to children being born from two genetic mothers. And with the success of uterus transplants, we may as well include the donor of the uterus among the candidates for potential parent. In an earlier analysis (Konečná & Nováková, 2018), we observed that in certain circumstances a legal person, in the sense of an institution, may also have access to MAR. In the future, when gene editing has wider clinical application, there may be donors of “exchanged” genetic sequences.

How then can we deal with surrogacy in an environment where we still have difficulty determining “Whose child is it?” Some of the major problems associated with surrogacy include determining legal parenthood, the enforceability of pre-natal or post-natal agreements, registering the newborn child, acceptable ways of recruiting surrogate mothers, acceptable forms of compensation and conditions for implementing the procedure.

The purpose of this paper is to describe, on the basis of an analysis of the available resources, the various options for determining parenthood where a child is born through surrogacy, de lege ferenda.

Surrogacy: definition

In texts dealing with surrogacy it is usually implicitly assumed that the procedure is undertaken by heterosexual couples, and that the embryo transferred to the womb of the surrogate mother originates from the egg and sperm of a heterosexual couple. This is how surrogacy is defined, for example, by authors of articles in the journal Právní zpravodaj [Legal Newsletter] (2009) or the journal Česká gynekologie [Czech Gynaecology] (Pektorová & Ventruba, 2015).

However, there are respected bodies that clearly deviate from this assumption. For example, the European Society of Human Reproduction and Embryology (ESHRE) does not rule out the use of donated gametes nor does it suppose the couple is necessarily heterosexual; it refers only to couples. A ‘surrogate’ is considered to be a woman who becomes pregnant, carries and then gives birth to the child for another couple, the intended or commissioning parents (ESHRE, 2005). In its more recent position paper, it asserts that medically assisted reproduction in non-standard situations (singles, homosexual couples, etc.) is morally sound in many cases. There is therefore no good reason to a priori deny access in such situations for such categorical denials would imply discrimination (ESHRE, 2014). According to the American Society for Reproductive Medicine (ASRM), in a process it calls gestational surrogacy, a surrogate mother, called a gestational carrier, is a woman who bears a child who is genetically unrelated to herself on behalf of an individual or couple who intend(s) to be the legal, rearing parent(s) of the child (ASRM, 2013). The ASRM notes that initially gestational surrogacy was aimed at intended opposite-sex parents who had fertility problems or medical problems that meant the female partner could not carry the pregnancy to term, but that now the process is available to individuals and same-sex couples desiring to become parents. If the artificial eggs or sperm cannot be obtained created from the somatic cells of the applicant (Smajdor & Cutas, 2015), then donor gametes can be used. In an attempt to address the problem, in 2017 the International Committee for Monitoring Assisted Reproductive Technologies (ICMART) published an updated evidence-driven set of terms and definitions in order to ensure consistency in reporting on infertility issues and fertility care interventions. It defined infertility as:

A disease characterized by the failure to establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse or due to an impairment of a person’s capacity to reproduce either as an individual or with his/her partner. Fertility interventions may be initiated in less than 1 year based on medical, sexual and reproductive history, age, physical findings and diagnostic testing. Infertility is a disease, which generates disability as an impairment of function (Zegers-Hochschild et al., 2017).

It is clear that the intention is that reproduction should be considered an individual right.

Although only a man and a woman together have access to MAR in the Czech Republic (Act No. 373/2011 Coll., §6), there are no requirements on partner status or sexual orientation. MAR treatment can be sought by a future surrogate mother together with an unattached man. (Konečná, 2017). According to advocacy groups providing advice on MAR in the Czech Republic, cases of non-standard applicants are on the rise (Honzová, 2019; Prudilová, 2018).

In this article we define surrogacy as the procedure whereby a woman undergoes assisted reproduction, carries and gives birth to a child in order to give up the child, and, if legal motherhood is determined by the birth of a child in the particular country, then transfer these parental rights and obligations to someone else, agreed upon in advance. In this paper we also use the following terms: The genetic father meaning the man whose sperm was used to conceive the child. The genetic mother to mean the woman whose egg was used to conceive the child. The biological mother refers to the woman who carried and gave birth to the child. The legal father is the man who is legally recognized as the father of the child. The legal mother is the woman who is legally recognized as the mother of the child. The intended parent (intended mother, intended father) is the person who wishes to become a parent through MAR.

Intentionally, we do not use the usual terms of maternity and paternity in the text, because they historically refer to genetic parenting. We have chosen to use the terms legal motherhood and legal fatherhood, which have a wider meaning than simply pointing to the genetics.

Legislation on surrogacy

The legislation on surrogacy differs in different countries.

Determining parenthood in European law

In eras when the manipulation of eggs and embryos was not possible, determining motherhood was simple—the mother was the woman who gave birth to the child. This is the legal definition of a mother given in the Model Family Code, a monograph attempting to find common ground for family law in Europe (Schwenzer, 2006). Article 3.4 (Parenting by Birth) states that the legal parent is the woman who gives birth to the child. The woman’s husband is traditionally considered to be the father. In cases where the woman is unmarried, the man the women asserts to be the father of the child is considered to be the father of the child. In the absence of genetic tests, wrongful assertion is difficult to prove.

At the moment, the legal father is considered to be either the husband, or the man confirming the unmarried woman’s claim that he is the father or the man who consented to MAR. The Model Family Code, especially with respect to fatherhood, reproduces and attempts to enshrine these practices in law while at the same time introducing the idea of parenthood by intention. According to Article 3.5 (Parentage by Intention) a legal parent is the person who, with the consent of the birthmother, intentionally assumes parentage for the child. Its incorporation of this definition reflects the Model Family Code’s the entry of technologies into the family formation, and at the same time allows a person, who has mistakenly assumed that s/he is the parent to challenge that parenthood. The Model Family Code sets out in Article. 3.6 (Challenge for Mistake) that the person who has mistakenly presumed that he or she is the genetic parent of the child may challenge his or her parentage. The challenge must be lodged within one year of becoming aware of the error. Perhaps the most obvious case envisaged by this is the denial of fatherhood, but motherhood may also be denied, for example, where an egg or embryo is accidentally used in place of another during MAR, or where newborn babies are mistaken in the maternity unit.

In MAR motherhood and fatherhood are generally based on the intent of the persons requesting the procedure; even where a donated egg and/or donated sperm is used, a person who enters into an agreement to have MAR is considered to be the legal parent. The commentary on Article 3.8 of the Model Family Code indicates that gamete donors do not have the right to apply for recognition as legal parents: Congruent with the general concept that intention is of paramount importance when determining parentage, the intentional donor of genetic material must be bound to his or her intention not to become a parent and is thus stopped from asserting any parentage.

It follows that theoretically, the legislation on surrogacy could be based on the principle of parenthood by intention, regardless of the origin of the gametes, the course of the pregnancy and subsequent childbirth. Along these lines, the person(s) who request(s) MAR could be considered the legal parents of the child. However, this solution is deceptively simple. The child’s rights still have to be taken care of. We must also bear in mind that some countries, including the Czech Republic, have laws that allow children to question or challenge their parentage. This is anticipated by the Model Family Code, in article. 3.7 (Challenge by the Child) where it contends that the child may challenge the legal parentage established under Articles 3.4 or 3.5. So long as there is no technology for creating artificial gametes from the applicant’s somatic cells, so long as at least one female and one male are still needed for a child to be conceived, carried and born, and so long as this is what children learn from a very young age and still see around them (August, 2018), it will always be impossible to convince the child that the man/woman who looks after them is their only parent, that is, the parent who conceived, carried and gave birth to that child. This cannot be said to be true of two men or two women. Legal systems have to take this into account.

Determining parenthood in surrogate motherhood: examples from other countries

Legislation applying in the UK is often quoted as a good example of model surrogacy law. The Surrogacy Arrangements Act 1985, which is the law on surrogacy in the UK, clearly prohibits commercial procedures, insists on the non-enforceability of any contracts between the surrogate mother and intended parent(s), and considers the mother who gave birth to the child (surrogate mother) to be the legal mother. The transfer of parental rights is done through adoption. Single persons as well as homosexual couples have access to MAR including surrogacy. Furthermore, the law does not permit anonymous gamete donation and therefore a child born thanks to MAR has the right of access to the bio-data of the sperm and/or egg donor or to contact them. As the child is adopted, they also have the right to know and contact the woman who gave birth to them, in this case, the surrogate mother.

However, it should be noted, that the UK has not signed the Convention on Human Rights and Biomedicine, Article 21 of which prohibits any financial gain from the use of the human body...the human body and its parts shall not, as such, give rise to financial gain.

In recent years, there have been discussions in the UK about changing the law on surrogacy. Proponents of changing the law argue that it does not reflect the current state of affairs, and seek, among other things, to redefine the basis on which parenthood is determined and for contracts between the surrogate mother and the intended parent(s) to be enforceable. They also want the law to allow for a broader categorization of persons who qualify to be recognized as legal parents:

Where a child is born through artificial insemination or the transfer of an embryo, the legal parents of the child are the persons, who at the time the child is conceived, intend to be the legal parents of that child and each legal parent can choose whether they are registered as the child’s mother, father or parent,

said Natalie Gamble, solicitor and founder of the specialist family law firm, at the Progress Educational Trust’s 2018 Annual Conference (Taylor, 2019).

In the Netherlands, Article 151b of the Dutch Criminal Code criminalizes commercial surrogacy. However, it has been suggested that commercial surrogacy was not commercialized with the intention of forbidding altruistic procedures (Vonk, 2010). Contracts between the surrogate mother and the intended parent(s) are purely private, voluntary and unenforceable—a surrogate mother is not obliged by law to hand over the child and the intended parent(s) does not have an obligation to take the child once it is born. Parental rights and duties are transferred through adoption (Child Care and Protection Board (Article 1:241(3) DCC and Article 1 Foster Children Act). The Netherlands, like the UK, provides for non-anonymous gamete donation, and any adopted children have the right to know the identity of the woman who gave birth to them. In addition, surrogacy is not limited to heterosexual couples only.

According to Vastaroucha (2017), in Greece surrogacy is regulated by several acts: Articles 1458 and 1464 of Greek Civil Code, Articles 13 and 26 of Law 3305/2005, Decisions of the Greek National Authority on MAR. Before undergoing surrogacy, the surrogate mother (and her partner if she is married) and the intended parent(s) must enter into a contract together. The contact must define the terms and conditions of the entire procedure. The fulfilment of these conditions is enforceable in Greek law. It is worth noting that under Article 17 of Law 4272/2014, neither the surrogate mother nor the intended parents have to be Greek citizens. Homosexual couples and single persons can also request surrogacy. Immediately after the birth, the intended parent(s) become the legal parent(s) of the child. Greece provides for anonymity between the child, the gamete donors and the surrogate mother.

The most recent law laying down conditions for surrogacy is in Portugal. The original law, Law No. 32 /2006, of 26 July, on MAR, explicitly forbade surrogacy. In 2016 the law was amended (Decreto Regulamentar n.º 6/2017 de 31 de Julho) to permit surrogacy, but purely on altruistic grounds. The amendment also makes surrogacy accessible to heterosexual couples, lesbian couples and single women. However, at least one gamete from the intended parent(s), egg or sperm must be used in the procedure. It further stipulates that a contract must be written in advance clearly laying down any conditions not specified in law. Once the child has been born, the law recognizes the intended parent(s) as the legal parent(s). However, the law has been the subject of criticism especially with respect to its position on the enforceability of the contract – surrogate mothers are not allowed to change their mind after fertilization (for example, to have an abortion). Moreover, in Portugal a child’s rights include the right to know all the persons involved in the child’s conception. Unless the child does not want to know, neither gamete donors nor the surrogate mother can remain anonymous to the child (Violante, 2018).

Surrogacy in the Czech Republic: status de lege lata

Surrogacy is not the subject of legislation in the Czech Republic. However, it is mentioned in the context of adoption in the provisions of Section 804 of Act No. 89/2012 Coll., of the Civil Code (CC), ...Adoption is ruled out between direct relatives and among siblings. This does not apply in the case of surrogacy. There is no other direct reference to surrogacy in Czech law. The drafters of the new CC did not want to regulate it. The Explanatory Report accompanying the new CC states that the

existing theoretical and practical elimination of the closest relatives from the range of potential adopters is to be clearly expressed in the future except in the case of surrogacy, in which the child is born to a woman who is not its genetic mother. However, the old Roman principle that the mother of the child is the woman who gave birth to the child remains. The report further observes that the physiological conditions under which assisted reproduction is performed are regulated by Act No. 20/1966 Coll., on public healthcare [now replaced by Act No. 372/2011 Coll., on health services and the conditions for their provision (Health Services Act)]. Nevertheless, it advises that the wording (and spirit) of the Civil Code must take into account, in its provisions, medical advances that allow women to become pregnant with another woman’s fertilized egg. It notes that the relationship between the woman who provided the germ cells (the genetic mother) and the child can be legalised through the adoption process. It adds that experiences from abroad and Czech experiences show that the greatest interest in surrogacy will be among women who are related to each other.

The provisions of § 920 could be used to determine the obligations that would apply to a man likely to be ascribed paternity. Such obligations would be to provide support to the mother of the child for two years after the birth of the child, and to share, to a reasonable extent, the costs associated with pregnancy and childbirth. The man would be obliged to pay costs associated with the pregnancy and birth even in the event that the child was not born alive.

The CC deals with surrogacy indirectly in § 787, where it states that

fatherhood cannot be denied to a child born between the 90th day and the 300th day after artificial insemination has been carried out with the consent of the intended mother’s husband, or with the consent of another man where the mother is not married, no matter what genetic material was used. This does not apply if the intended mother becomes pregnant in some other way.

The Explanatory Report states that this provision is a transcription of existing legislation (§ 58 (2) of the old CC which stated that fatherhood cannot be denied to a child born between the 90th day and the 300th after artificial insemination is carried out with the consent of the intended mother’s husband unless it can be shown that the intended mother became pregnant some other way. In the report the issue is raised as to whether the solution to the ambiguity concerning the provision should apply to situations where the gamete of another man, other than the man who gave consent, is used in the artificial insemination, regardless of whether he was the husband of the child›s mother, and to situations where another woman›s egg is used. It is clear that the legislators were trying to respond to problems that could arise as medicine advances.

Solution suggestions de lege ferenda

Suggestions vary, the emphasis placed on the enforceability of contracts, and the emphasis placed on the non-commercial nature of the procedure. We are not concerned (within the scope of this article) with situations in which the intended parent(s), surrogate mother or gamete donor(s) are from different countries, which is quite common. In the Czech Republic, around 90% of donated eggs go to foreign clients. The donors are Czech women.

Perhaps what is crucial is the state’s view of the development of the child’s identity; how it interprets and deals with the child’s right to know its parents. In countries where homosexual couples and single persons are guaranteed access to medically assisted reproduction and adoption, anonymity in gamete donation and adoption has been abolished in many cases. This idea that the child has the right to have contact with all the people involved in conceiving and caring for him or her is increasingly being termed “multiple parenting”, see Diagram 1.

Diagram 1

Multiple parenting. Key: M – mother, V – father, LM – surrogate mother, green – biological parent, red – genetic parent, white – social parent (Mayer-Lewis, 2018).

Conclusion

We assume that there is sufficient capacity to legally fine-tune the requirements, rights and duties of all those involved in surrogacy. The requirements, rights and duties are somewhat contradictory and mutually exclusive. Certainly everyone wishes those who desire a child to have one. However, having children through surrogacy leads to so many psychosocial, ethical, legal and other problems that it is impossible to describe all the possible solutions, let alone the legalization of the demands of all parties involved. The intended parents represent a very varied group. There is also the question of what the legal basis might be for establishing legal parenthood. Whichever approach is taken leads, the end result is multiple parenting, and there are questions as to whether this constitutes a good environment for the development of the child, or whether it would suit all participating parents. Then there is the fundamental problem concerning the dignity of the human body and the unacceptability of financially benefitting from either it or its parts; although, of course, this does not only arise with MAR. Can we freely trade in kidneys or livers?

The legislation should be systematic, consistent, clear and not lead to ambiguous interpretations. Otherwise, confusion will result, and nobody can be certain where that would end. The purpose of this paper was not to impose a view on the reader but to point out potential solutions and their weaknesses. It is essential for the lawmaking bodies to respond to the latest developments in medical technologies, not just MAR, and to do so professionally, with a full knowledge of all the aspects.