Establishment of Maternity and Paternity in Application of Artificial Human Reproduction Methods

Author Name(s): Leisan N. Khasimova, Julia V. Shebalova
Author Email: hasimov_l@mail.ru

Abstract

Today, the Family Code of the Russian Federation allows the use of modern reproductive technologies in order to partially solve the infertility problem in Russia. Currently, medicine knows several methods of reproductive activity which are regulated in different ways from the point of view of law. The study of legislation has shown that at present there is no single act that could most fully regulate the use of ART (hereinafter referred to as assisted reproductive technologies). Based on the analysis of the current civil legislation in the Russian Federation, and on the theoretical provisions of the legal regulation for the use of artificial human reproduction methods, the mechanism of maternity and paternity is used in the application of assisted reproductive technologies in modern civil law of the Russian Federation. The general methodological basis was formed by the general scientific (dialectic) method of cognition, comparative legal and logical methods, what made it possible to consider the civil legislation development problems in the sphere of legal regulation of the assisted reproductive technologies being applied. The paper presents the authors’ own views and analyzes the theoretical studies of scientists in this field.

Introduction

Currently, both in Russia and abroad, there is an acute problem of infertility among married couples. The causes of infertility are deviations in health, poor ecology, hereditary diseases, and social factors. The basis of “social infertility” may lie in divorces, widowhood, and voluntary sterilization [1]. In this regard, the possibility of using assisted reproductive technologies is gaining increasing popularity in the world. For example, such terms as “reproductive journey”, “fertility tourism”, “medical tourism”, “reproductive tourism” were introduced by individual scientists quite a long time ago and accepted for use abroad [2; 3; 4]. However, the lack of proper legal regulation of these issues in foreign countries has created certain legal problems. So in India, the legalization of commercial surrogacy in 2002 was associated with an attempt to stimulate medical tourism in this area. The growing demand for surrogate motherhood in India and, at the same time, the lack of adequate legal regulation has caused problems, including problems related to the rights of the child [5]. In 2015, a law was issued in Thailand according to which only married Thai couples or couples where one spouse has been a Thai citizen, who has been married for more than three years, may seek a surrogate mother on a voluntary basis. Commercial surrogacy is prohibited and punishable by up to 10 years in prison [6]. In the UK, surrogate motherhood is allowed, provided that the biological parents pay reasonable expenses related to the pregnancy and childbirth of the surrogate mother. Commercial surrogacy is prohibited. Australian legislation on the use of this method of assisted reproductive technologies, such as surrogacy, also prohibits the commercial basis of these legal relationships [7]. In Kazakhstan, commercial surrogacy is prohibited [8].

Conclusion

In connection with the lack of full-fledged legal regulation, the legislator took the initiative to ban surrogate motherhood. In March 2017, the State Duma introduced a bill No. 133590-7 “On Amendments to Certain Legislative Acts of the Russian Federation regarding the prohibition of surrogate motherhood” [16]. In the explanatory note to the bill, the initiators indicated that Russia is among the countries with the most liberal and least developed legislation governing surrogate motherhood, and therefore they propose to ban it at the legislative level. In our opinion, the ban, as a method of regulation, is inadvisable in this case, since assisted reproductive technologies, in general, and surrogate motherhood in particular, are quite widespread both in Russia and abroad. For many couples,

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