S. Lebedev: "The new law is a breakthrough in legal regulation of reproductive technologies"

The law "On the Fundamentals of Health Protection in the Russian Federation", which the public immediately dubbed "the Surrogacy Law", gave rise to numerous publications in the mass media that expressed the most varied points of view.

Surrogacy problems is, no doubt, a critical and complex issue.  In such difficult cases, it is customary, however, to turn to specialists.  Today this task falls to Sergei Lebedev, president of the SweetChild Group of Companies, who took part in revising the new legislation.  He is here with us to comment on the most pressing issues that arose with the  new law coming into effect. 

Could you tell us more about how the Law "On the Fundamentals of Health Protection in the Russian Federation", which came into effect in January of this year, expanded  the rights of patients?

The newly effected law "On the Fundamentals of Health Protection in the Russian Federation" has undoubtedly broadened the opportunities for people, who require the services of a surrogate mother.  The fundamental difference of the new law is in the fact that, in addition to married couples, it allows unwed couples and single women to use the services of a surrogate mother as well. 

In other words, more types of people are now going to be able to take part in the surrogacy programme thanks to the new law?

Yes. Before now, unwed couples and single women had to fight for their rights in a judicial proceeding. I want to note that, when it comes to a subject as complex as surrogacy, legislation must be extremely precise. The new law took care of all the misunderstandings that existed in the previous version of the legislation on Russia's surrogacy. It simplified the procedure for unmarried couples and women without partners.  Now they can simply go to the Office of Vital Records just like everyone else and register their child that was born via a surrogate mother. 

Does the new law on surrogacy resolve all the typical surrogacy problems and "problem cases" that arise in this area from a legal standpoint?

There are no "problem cases".  Nor have there been any.  Although, there are, of course, problems due to the fact that the rights of a surrogate mother to keep the child for herself are still formalized in legislation.  However, in my opinion, this situation is well within the law.  Moreover, it is something that exists in the majority of countries, where legislation has already settled the matter of surrogacy, because lawmakers operate on the basis of a fundamental principle: "A child's mother is a woman, who gave birth to that child, until she states to the contrary in written form".  It has been my experience that surrogate mothers generally do not decide to keep another woman's child; they did not do so even before the new law that addressed the questions about surrogacy came out, and it is doubtful that they will do so in the future. Surrogacy, after all, is somewhat similar to a job, and people come to participate in this programme, knowing full well why they came there and what they wish to accomplish. Another indisputable advantage that the new legislation has with regard to surrogacy is the fact that a contract between genetic parents and a gestational carrier is now a requirement.   Previously, such a contract was concluded only if the parties requested it.  This clause protects the rights of a surrogate mother as well as of genetic parents.  Should one of the parties fail to fulfill its obligations, a properly executed legal document will allow the injured party to take their case to court.

How legitimate and justified, do you think, are restrictions that exist in the new law regarding a woman's age and whether or not she has children. 

Quite legitimate. These restrictions are reasonable and completely fair.  First of all, the notion that a surrogate mother must have a child of her own is logical and understandable: this person must have an understanding of what pregnancy is and what to expect from childbirth.  Furthermore, age restrictions are necessary because a woman's reproductive capacity declines with age.

There are some opinions to the effect that women, who have not yet given birth, could thus earn money to have their own child, for having children these days is a very costly endeavour…

No, the birth of a child is a gift from above and can only be a happy occasion.  With the exception of surrogacy cases, when the birth of a child is a job.  I definitely agree with the lawmakers that a future surrogate mother must have children of her own.  Reason number one: a person must be fully aware of what it is they are agreeing to do and what they are to expect. The second reason is that childbirth can be dangerous for a woman.  And any pregnancy, including the pregnancy of a surrogate mother, can require surgical intervention.  So it would be a strange situation if a woman carries a client's child to term and then becomes unable to carry one to term for herself. There is also a moral and psychological aspect: a woman that carries a client's child to term should not become attached to that child, she should be attached to her own children.  

According to the new legislation, "a surrogate mother cannot also be an egg donor". Could you explain the reason for this particular restriction?

This is another legal loophole that the new law eliminated. It was considered unethical before, too, but was never restricted by law.  Major clinics never went along with such schemes, never combined a donor and a surrogate mother in one person.  Legally, however, such practice was not forbidden until now, and smaller clinics must have occasionally agreed to  such procedures, where a surrogate mother was simultaneously an egg donor.   Surrogacy, however, is not the selling of children; a surrogate mother must always carry a child that is genetically foreign to her. And even in a situation where a married couple or a single woman needs both a surrogate mother and an egg donor, those should be two different individuals. In the Russian Federation, like in most countries, donorship is an anonymous procedure.  Situations, where an egg donor and a surrogate mother are the same person, are fraught with unpleasant consequences, arguments. And again, going back to the psychological aspect of this, it is much more difficult to give away a child that is genetically one's own.  That is why, on top of everything else, a situation like that is totally unacceptable from a moral standpoint as well. 

According to the new law, a woman is required to have medical indications to participate in the surrogacy programme. Do you believe such a restriction to be justified? If so, why?

What other indications could there be?  Not wanting to go through pregnancy? Not having the time to do it? If she doesn't have the time to go through pregnancy, will she have time for that child afterwards?  Why does a woman like that need a child anyway? Previously, the legislation did not have such restrictions, they existed only in departmental guidelines and could be easily sidestepped.  I wish to point out, though, that in all my years of work I never met clients, who wished to go through a surrogate mother for social reasons – not having the time, not wanting to spoil their figure... I believe that this is a contrived reason for surrogacy, created artificially by people who never met a large number of real-life patients that require the services of surrogate mothers. The law merely confirmed what was already true: surrogacy is a medical infertility treatment method.  It is not a means for solving social, psychological, or other questions.  As far as the question of demographics is concerned, cases, where children are born via surrogate mothers, are rare enough that they cannot influence the demographic situation as a whole.

The new law does not have a clause that obligates the parents to take home with them all the children born as a result of an IVF procedure that they paid for.  In your opinion, is such a clause needed?

It is needed, if it is to be applied to all parents without exception, not just to those, whose children are born via surrogate mothers.  Let's force everyone to take home the children they bring into this world.  Seriously, though, I am having a hard time understanding how parents of children born via surrogate mothers differ from other parents and why there should be certain extra measures and obligations where they are concerned.    Every time a situation arises where parents refuse a child from a surrogate mother, the press becomes hysterical, everyone wants to throw in their two cents about such a hot-button issue as surrogacy problems...   If I may point out, though, every year we have about 10-11 thousand children, whose parents refuse to take them home from the hospital!  There are some parents who refuse to take home children with developmental problems – why should parents, who turn to the services of a surrogate mother, be any different?  Parents, who use a surrogate mother for their reproductive process, have the same rights as all other parents.  Having a child via a surrogate mother imposes no additional legal, psychological or moral responsibility on a person.  

Can a single man have a child through surrogacy with the new law?

The Constitution of the Russian Federation talks unequivocally about gender equality.  Let us, however, go back to the fact that surrogacy is a medical method of treating female infertility. Single men do not fit into that categorization.  The current law is not applicable to single men, nor was the law's previous version.  That is because no type of single fatherhood is related to the process of surrogacy de jure or de facto.  Any person has the right to produce offspring, and that includes single men.  But what does surrogacy have to do with it?

And one more thing about men. How are donors, and sperm donors, in particular, protected from a legal standpoint?   Is a donor required to participate in a medical treatment, such as blood transfusion, bone marrow transplant, etc, if there are problems with the child?

As I already said, donorship in the Russian Federation is completely anonymous. A donor is not required to take part in blood transfusions or other procedures.  The law completely shields donors from parents and parents from donors. 

Mass media often puts forth a suggestion that surrogacy is tied to the disintegration of traditional values, and, above all, the disintegration of a traditional family unit.    Could you comment on that opinion?

Traditional family values are disintegrating due to a number of reasons,  I'm afraid, including emancipation, technological progress... Surrogacy does not add anything in terms of imbalance, it is a strictly isolated case. It simply cannot have any impact on the total number of divorces.  The law "On the Fundamentals of Health Protection in the Russian Federation" has a great deal of innovations regarding public health.  Yet the only thing that the press writes about is : "Russia has introduced a surrogacy law".  Surrogacy in Russia has been legalized many years ago, ever since the first child was born via a surrogate mother in Saint Petersburg.    The 1995 Family Code includes clearly detailed articles on surrogacy, as does the 2003 Order of the Ministry of Public Health, which describes the medical procedure of surrogacy.  The 1997 Federal Law "Оn Civil Status Acts" likewise talks about surrogacy.   The newly enacted law "On the Fundamentals of Health Protection in the Russian Federation" simply defines the individuals, who are allowed to use this procedure, more clearly, stresses the necessity of contractual obligations, and outlines the parties' opportunities with regard to donations. 

As far as family disintegration is concerned – it is nothing more than a myth.  People, who have resorted to in vitro fertilization and surrogacy, who had lots of difficulties getting a child... could, hypothetically, get divorced as well, I suppose.  But I doubt that the surrogate mother or the child born via an IVF procedure will be the reason for their divorce.  I believe that the absence of children in a family unit is far more likely to lead to a break-up. 

Moreover, the mass media sometimes set surrogacy against adoption.  I already talked about the fact that the number of surrogacy cases and the number of abandoned children are incomparable.  But in my practice a huge number of clients that turned to us for surrogacy services simultaneously adopted the child.  They did not separate these two paths, didn't set one against the other. 

In  your opinion, the new law fully serves its purpose.  You were involved in its creation –what, if anything, you would like to add to it?

There is no such thing as a perfect law. There are of course some legal clouds that remain, that's always the case with big legislative acts.  I think that the current law is unquestionably better in the surrogacy aspect than was its previous version, and we shall see how it fares in practice.  Any law must evolve and change, by taking real life into account – maybe a few years from now necessary amendments will be added to this legislative act as well…    The new law is a legal breakthrough in this area of medicine.  And this breakthrough marks the path we can follow for further progress.