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Legal aspects of surrogacy contracts.

The surrogate motherhood is an accepted fact in a modern society. (1) Somebody faces with the problem of conceiving and giving a birth to a child in a natural way, but most of the women want to feel happiness of motherhood and give birth by her own. Contemporary medicine science takes an opportunity of using extracorporeal fertilization when a woman carries an embryo conceived by stranger's sex cells. Such interference with the physiological process entails both legal consequences and legal conflicts.

Surrogacy emerged in 1981 in the United States of America when the first successful program of extracorporeal fertilization was implemented. Some countries, such as France, Austria, Germany, Norway, Sweden, several states of the USA flatly refuse from surrogacy because it undermines family values and define some ethic problems. There are countries where surrogacy is not forbidden but also is not regulated by the legislation: Belgium, Finland.

In Russia surrogacy began to spread a few decades ago.

According to Russian Federal law (Article 55) 'On the basics of protection of the health of citizens in the Russian Federation' surrogacy is carrying and giving birth to a child within the contract, which is signed by surrogate mother and biological parents who gave their own sex cells. Under Russian Family Code neither spouses who gave a permission for the implantation of embryo to another woman nor a surrogate mother have a right to dispute a motherhood and fatherhood, referring to the circumstances linked to surrogate motherhood, after a registration of parents in the register book of births. The Russian Health Ministry Administrative Order N 107 N 'On the order of using of reproductive technologies, contraindications and limitations of their application' covers health problems that do not allow a woman to give a birth and also some requirements for a surrogate mother. Surrogate mother could be a women from 20 to 35 who has got at least one her own healthy child and who gave written permission for medical intervention.

Despite all those laws this sphere is still not regulated enough. In particular, there are not any legal guarantees for the biological parents. Russian legislation does not establish any penalties for improper performance and contract breach by a surrogate mother.

The nature of this contract is not defined, legislators and courts in many countries including Russia often follow Civil Code rule of freedom of a contract. This contract is usually called a contract of rendering services of surrogate motherhood. Considering this type of contract it should be taken into account that citizens faced with interference in the natural processes. In my opinion a key problem is a subject of the contract. In any contract there should be a subject, rights and obligations of the parties and liability for the failure of performance or improper performance of the contract. Formally a subject of the surrogacy contracts is the voluntary participation of the parties in surrogacy program. But in practice a subject of the contract is a child and that contradicts moral norms. So it is the reason for cancelation of deal in many countries. However, institute of surrogate motherhood has more advantages than disadvantages. Grace to technological progress in this sphere many women have an opportunity to have their own children using this method as well as married couples can have full family. But these advantages can take place only under effective legal regulation.

Russian legislation doesn't establish obligatory terms of this contract. In practice usually contract provides terms of preparation of extracorporeal fertilization, period of pregnancy and also period of preparation for giving birth act. The surrogate mother holds responsibility for her health and the child's health. Besides, if artificial interruption of pregnancy happens she is deprived of all rewards and has to compensate all costs incurred earlier on for purpose of contract. The crucial term is a contract's price. As usual it is defined by the parties of the contract. However, in practice surrogate mother often blackmails the biological parents to increase the price.

The main problem is the standards of laws of some countries, according to which a surrogate mother has a right to keep a child. Under Article 33 Human Fertilisation and Embryology Act of the Parliament of the United Kingdom of 2008 the woman who is carrying or gave a birth to a child as a result of the placing in her of an embryo or of sperm and eggs, and no any other woman, is to be treated as a mother of the child. So if a woman volunteers to carry a child for someone who can't physically carry an embryo, she is not legally a mother, but if a woman who carries the embryo will keep the child, she has to be considered as a mother.

There are similar rules in the majority of states in the US. (2) There was an interesting case at one of the USA courts. Arizona statute establishes that legally mother is the surrogate one and has a right of custody of that child. Despite the fact that Arizona Appellate Court ruled this statute unconstitutional because it denied the genetic mother protection, it has not been repealed. (3) There is one of important case: Anna Johnson made a contract of surrogacy with married couple Calvert. After Anna's conception she demanded the final payment, which was not due after a child's birth. The trial court established Calvert as biological parents and denied Anna's claim.

Under Ohio law the individuals who provide the genes of the child are the biological parents. Law requires that those provided a child with genetics must be designated as parents biologically and legally as well. (4) It's necessary to pay attention to protectability of biological parents while signing this type of contract. A surrogate motherhood does not involve any liability for non-execution of a contract.

Under the Russian Family Code motherhood and childhood are under protection of State. And nobody can put a mother who is carrying a baby (even of other biological parents) in claims to give a child to biological parents. There are a lot of cases in practice when women refuse to execute the contract and to give a child to parents. There are a lot of courts applies in this regard. However, in Russia these applies are prohibited by Family Law.

In 2005 Moscow district court dealt with another interesting claim. In Moscow clinic the successful operation of extracorporeal fertilization took place, and after a child birth registration surrogate mother tried to dispute a note in Birth's book. She motivated it that she supposed to live with baby's father. Under the Russian Family Code (Article 52) surrogate mother has no right to dispute a note in Birth's book.

Russian Family Code includes two articles on surrogate motherhood. First is about the existence of the institute of surrogate motherhood, and the second guarantees a surrogate mother the right to determine a fate of the child. However, the detailed implementation of this procedure is not stipulated that in theory suggests the emergence of various kinds of legal incidents, and in practice provides surrogate mothers the opportunity to blackmail the biological parents. In Russia the legislation regulating legal conflicts in surrogacy sphere is liberal. That means, parties of a contract are not protected because there are not any imperatives of law and any contract guarantees. Family Code doesn't protect biological parents. According to Article 51 of Family Code married couples who gave a written consent for implantation an embryo to other woman can become parents only by surrogate mother's consent. If the surrogate mother refuses to give the child to genetic parents and decides to stay with a baby, she will be registered as a mother of the child. (5)

This means that the biological parents in accordance with the Russian legislation are not legally protected, and the surrogate mother is free not to give the child and biological parents are not able to sue and to invoke the circumstance of surrogate motherhood, demanding return of the child. Sometimes a surrogate mother changes her mind and refuses to give the child.

So in states where surrogacy is allowed, the biological mother does not usually win custody or visitation rights. In most cases, both a surrogate and parents sign a contract to prevent it from happening. Nonetheless, there is always a chance that a surrogate mother might win her case. (6)

I don't think that it's fair. First, the biological parents make a big step and they take a risk. Secondly, in practice they always properly perform the conditions of the contract, however, a surrogate mother has a right to leave their child, and the law has no sanctions against it. What's more, the biological parents under the contract are obliged to support her during pregnancy and pay her a remuneration after a birth of the child.

In author's opinion there should be some changes made in this sphere: legislator should clarify the conditions of program of extracorporeal fertilization. Also it's necessary to make amendments to Russian Family Code regarding surrogacy contract, to regulate the registration. First of all, it's necessary to amend Article 51 of Russian Family Code and to include a provision 'Married couple who made a contract for surrogate motherhood must be registered as legal parents of the child'. Furthermore, a new provision should be added to Article 52 of Russian Family Code, stating 'Biological parents have a right to dispute birth note under any circumstances'.

What's more, it's necessary to include in Russian Family Code an obligation provision for surrogate mother to give a child to parents within the term set by the contract.

Detailed conditions of program of extracorporeal fertilization would help courts to avoid many claims. Those technologies help to have a child which should have a positive effect on demographic situation, and a lot of families can be happy with the opportunity to have children.


Anisimov A, 'The Surrogate Motherhood: Law, Morals and Policy' (2013) 2 Journal of Politics and Law

Fergus Victoria L, 'Interpretation of Ohio Law on Maternal Status in Gestation Surrogacy Disputes: Belsito v Clark' (1995) 21 Dayton Law Review

Hisano Erin Y, 'Gestational Surrogacy Maternity Disputes: Refocusing on the Child' (2011) 15 Lewis & Clark Law Review

James Alyssa, 'Gestational Surrogacy Agreements: why Indiana Should Honor Them and What Physicians Should Know Until They Do' (2013) 10 1 Indiana Health Law Review

Keefer A, Problems with Surrogate Mothers (Livestrong, 2013)

Spivack C, 'The Law of Surrogate Motherhood in the United States' (2010) 58 American Journal of Comparative Law

Vershinina E.V. Surrogatnoe materinstvo v zarubezhnykh stranakh: sravnitel'no-pravovoy analiz/Semeynoe i zhilishchnoe pravo. 2011. N 1. (EV Vershinina, 'Surrogate Motherhood in Russia and Foreign Countries: Comparative Legal Analysis' (2011) 1 Family and Housing Law)

Svetlana Morozova (Russia)


Alumnus of the Kutafin Moscow State Law University, 2015


(1) Alyssa James, 'Gestational Surrogacy Agreements: why Indiana Should Honor Them and What Physicians Should Know Until They Do' (2013) 10 1 Indiana Health Law Review 176.

(2) Erin Y Hisano, 'Gestational Surrogacy Maternity Disputes: Refocusing on the Child' (2011) 15 Lewis & Clark Law Review 517.

(3) C Spivack, 'The Law of Surrogate Motherhood in the United States' (2010) 58 American Journal of Comparative Law 97.

(4) Victoria L Fergus, 'Interpretation of Ohio Law on Maternal Status in Gestation Surrogacy Disputes: Belsito v Clark' (1995) 21 Dayton Law Review 229.

(5) Vershinina E.V. Surrogatnoe materinstvo v zarubezhnykh stranakh: sravnitel'nopravovoy analiz/Semeynoe i zhilishchnoe pravo. 2011. No. 1. (EV Vershinina, 'Surrogate Motherhood in Russia and Foreign Countries: Comparative Legal Analysis' (2011) 1 Family and Housing Law).

(6) A Keefer, Problems with Surrogate Mothers (Livestrong 2013).
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Author:Morozova, Svetlana
Publication:Kutafin University Law Review
Geographic Code:4EXRU
Date:Apr 1, 2016
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