Reasons for the need to use surrogate motherhood
Surrogate motherhood has been known to mankind since the times of the Old Testament, and in Belarus for the first time it received legislative consolidation in 2006.
According to statistics, 20% of married couples in Belarus cannot have their own children, as the spouse has been diagnosed with infertility. The latest assisted reproductive technologies have come to the aid of such families, thanks to which it has become possible to have their own children even for infertile parents.
To date, surrogate motherhood is not widespread in Belarus. According to statistics, in 2020, 33 married couples resorted to this method of having children, and in 2019 – 46 married couples. Despite the low prevalence in practice (taking into account the bioethical aspects of the possibility of using surrogate motherhood), the surrogate motherhood contract is an independent legal structure and is clearly enshrined in the legal system of Belarus.
Legislation of the Republic of Belarus on surrogate motherhood
Relations governing surrogate motherhood in the Republic of Belarus are regulated by the Code of the Republic of Belarus on Marriage and Family, the Law of the Republic of Belarus “On Assisted Reproductive Technologies”, the Instruction on the procedure for performing notarial acts and other regulatory legal acts.
The Marriage and Family Code of the Republic of Belarus establishes who is the mother and father of a child born as a result of the use of assisted reproductive technologies. So, the father of such a child is the spouse who agreed to the use of the above technologies in relation to his wife. The mother of a child is the woman whose genetic material was used to conceive it.
What is surrogacy
Surrogate motherhood is a legal structure when the spouses (genetic mother and father) take genetic material for the birth of a child, and another woman (surrogate mother) provides services for bearing and giving birth to a child.
Thus, the surrogate mother provides the woman with the service of bearing a child. In other words, surrogate motherhood is the bearing not of one’s own child, but of the child of other parents, possible through the use of assisted reproductive technologies.
Consequently, surrogate motherhood, along with in vitro fertilization, is one of the types of assisted reproductive technologies and is used when spouses (or a woman without a spouse) wish to have a child, but for physiological reasons (health problems) cannot conceive a child naturally.
Surrogacy agreement: parties and notarization
Surrogate motherhood is formalized in the form of a surrogate motherhood agreement.
The conclusion of a surrogate motherhood agreement is possible only if pregnancy and the birth of a child for medical reasons for the genetic mother are impossible or pose a threat to the life of the mother or child.
The legislation also imposes requirements on the surrogate mother. This must be a woman not younger than 20 years old and not older than 35 years old, married, who has a child, and has no medical contraindications to pregnancy and childbirth.
The surrogate motherhood agreement is subject to notarization. This requires the presence of all parties with passports and other necessary documents. For notarization of a surrogate motherhood agreement, the consent of the spouses of the parties is required.
The parties to the surrogacy agreement are the genetic parents (genetic mother) and the surrogate mother. The contract is drawn up by a notary in the presence of the parties and is subject to signing by the parties in the presence of a notary.
For drafting a surrogate motherhood agreement and its notarization, you must pay a notary fee.
Compensatory nature of the surrogate motherhood agreement: general rule and exceptions
As a general rule, the surrogate motherhood contract is of a reimbursable nature. Services for the bearing and birth of a child are subject to payment by the genetic mother. The amount of payment for these services is indicated in the surrogate motherhood agreement and is one of the essential conditions of this agreement.
The exception is cases when the surrogate mother is a relative of the genetic mother, or the spouse of the genetic mother. In such cases, the surrogate motherhood agreement may be free of charge, i.e. childbearing and childbirth services are provided to the genetic mother free of charge.
Rights and obligations of a surrogate mother
The rights and obligations of a surrogate mother are enshrined in Article 23 of the Law of the Republic of Belarus “On Assisted Reproductive Technologies”. So, a woman who decides to become a surrogate mother has the right to:
– receiving remuneration for the provision of services for the bearing and birth of a child;
– ensuring the conditions necessary for living and bearing a child;
– receiving state benefits provided for pregnant women;
– Reimbursement of medical expenses during the childbearing period.
A surrogate mother must meet certain requirements. So, she should not be accused or suspected in a criminal case; she should not be held criminally liable for committing a grave or especially grave crime; she must not be deprived of parental rights; other requirements stipulated by the legislation.
The surrogate mother must:
– provide the genetic mother with all information about her state of health and the state of health of the child;
– fulfill during pregnancy all medical prescriptions prescribed by a doctor;
– after the birth of the child, transfer it to the genetic mother;
– fulfill other obligations stipulated by the legislation or the contract.
If you have questions related to surrogacy and you need help or advice from a lawyer, please contact our lawyers at info@familylawyer.by or by phone: +375293570355.
