Med. pravo., 2017; 1(19): 27-36
Candidate of legal sciences, lecturer of the Department of international relations, international information and security of the V. N. Karazin Kharkiv National University, leading specialist of the organizational and analytical division of the Commercial court of Kharkiv Region
Legal Nature and the Subject Matter of the Surrogacy Contract
In Ukraine surrogacy tourism has grown steadily due to the decrease of living standards. However, the contractual relations in the sphere of surrogacy do not have legal regulation. That is why we have chosen as the theme of this article the question like object and the nature of surrogacy contract.
Most often, the object of contract is identified with material objects, that objects are the reason of relations between the parties of contractual obligations. The surrogacy contract hasn’t material result. The fetus or the child cannot be considered as a subject of contractual obligations. During pregnancy the woman and the fetus - are one organism, the legal status of the fetus cannot be changed by agreement of the parties and there aren’t reasons to consider fetus or child as a subject of surrogacy contract. The consequence of the implementation of surrogacy contract may be the birth of a child, that is, the birth of a new person. A person cannot be considered as an object of contractual relations. So, in our opinion, the subject of surrogacy contract is intangible.
In academic circles, there is no common position about the subject of surrogacy contract. As the subject of surrogacy contract considers actions of a surrogate mother about bearing and birth the child, these actions are conventionally divided into primary and derivative.
About primary actions said that it includes implantation procedure; ensuring favorable conditions for fetal development. Derivative actions include the birth of a child; the signing of the necessary documents for intended parents. We think that the subject of the contract may not include primary and derivative provisions, and the subject is unique for a certain kind of relationship. The presence of primary and derivative elements in the subject of the contract may affect the nature of the relations developing between the parties.
Woman during pregnancy does not perform active action, pregnancy for a certain period of time is the natural state of the body for the most women. Therefore, we cannot agree with the fact that the subject of surrogacy contract is actually action about child nurturing. Childbirth cannot be recognized as an element of surrogacy contract subject. The fact of birth in the context of contractual relations of surrogacy - it is rather a deadline of fulfillment of obligations, the desired outcome of the contract. The subject of surrogacy contract cannot be the duty of the surrogate mother given birthfor a child, as we have already pointed out the subject of any agreement - is the material object or the actions that constitute the essence of a contractual obligation. The obligation to transfer a child is derived from the obligation to bear a child before the birth, it appears only in the case of the fact of birth of a living child. The order of registration of the birth of the child does not have a contractual nature and governed by the law mandatorily.
So, we can formulate the subject of surrogacy contract as follows: bearing the child, that has no genetic connection with surrogate mother, before the birth.
Today, relations of surrogate motherhood are studied from the perspective of family law and civil law. After the birth of the child the relations between parties of surrogacy contract are regulatedby law, there is no surrogacy contract between the child and the surrogate mother and between the child and theintended parents. This legal relationship is not based on the contract but on the next rule of law: in the case of the transfer into the body of another woman human embryo conceived by spouses (male and female) as a result of assisted reproductive technologies, the child's parents are spouses (Part 2 of Art. 123 of the Family Code of Ukraine). Therefore, after the birth of the child the relationship between the parties of surrogacy contract lose optionality and regulated by mandatory rules of family law.
Scientists suggest that nature of surrogacy contract has something in common with the rental contract, contract for worksand services.
After analyzing the relationship of surrogate motherhood and relationships in the rental sector, we come to a conclusion that they are not similar. The subject of the rental contractcan be a thing… (Art. 760 Civil Code of Ukraine). Woman and her body is not a thing.
After analyzing the relationship of surrogate motherhood and contract for works, we come to the conclusion that it does not exist. One of the criteria for work’s obligations is the quality of the work. Requirements for the quality of the work can be regulate by the contract and the law. Of course, a child cannot be considered as a result of the proper execution of the contract. In addition, even with the proper performance of the surrogacy contractthe child can be no born, but regardless of this the compensation should be paidfor surrogate mother.
In our opinion, the surrogacy contract is closer to the obligations connected with services provision. A peculiar feature of the contractual obligations in civil law is the obligation of the debtor to perform certain actions. We found out that the subject of surrogacy contract is bearing the child until his birth - pregnancy. It is obvious that the subject of surrogacy contract does not provide to a surrogate mother the duty of do any positive action at the same time on a surrogate mother is obliged to refrain from someactions. Another characteristic feature of the obligation to provide services is the fact that the Service Provider's actions have an impact on existing benefits. At the same time the result of a surrogacy contract could be the birth of a child, that is, the emergence of a new legal entity. This excludes the possibility of recognizing the relationship of surrogacy to provide services.
Thus, the surrogate mother does not only take active measures to fulfill contractual obligations, but she also takes the responsibility to refrain from rights guaranteed by the Constitution, like the result that can be born a new legal entity. This behavior is obligated subject is uncharacteristic for any of the well-known treaty law obligations. Therefore surrogacy contract cannot be attributed to any of the existing types of civil contracts, and you can talk about a new type of contract.
Key words: surrogate motherhood, contract, subject matter of the contract, legal nature of the surrogacy contract.
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