Media materials

Children for a Childless Family Author: K.N. Svitnev Date: 03.2007

The demographic issue has recently become a national priority. To the greatest extent the national Health Project is concerned with this issue. But creation of a full family is restricted for these families not only due to medical problems, but to legal problems as well. The current laws do not cover a whole range of legal relations relating to surrogate motherhood and prenatal adoption.

The current Russian state policy aims at changing the demographic situation. Its implementation mechanisms are targeted at encouraging people who can have children, but do not want to. Thus, the birth of a second child in the family is remunerated with a significant sum.

Alongside, tens of millions of people want to have children, but are unable to due to certain grounds. If the current reproductive legislation were liberalized, there could be one million births more each year without additional state financing. Financing of reproductive programmes could, in its turn, change the entire demographic situation in Russia.

Out of 42 million Russian families 47% do not have children. Approximately 5 million couples can not have children due to health conditions. Only three million can have children, if treated appropriately. Thus around 2 million couples of reproductive age may forget about being parents.

The only way out for such families is surrogate motherhood, i.e. carrying of a child for another family by a mother, usually accompanied by a different donorship programmes.

But the right to use ART, including donor and surrogate programmes, should be legally protected.

The growth of birth rate can be provided by the following legal measures:

1. Provide equal access to reproductive technologies for all people who want to have children.

A single woman, as provided by Section 35 of The Fundamental Principles of the RF Law on Health Protection, is entitled to artificial insemination. Single men of reproductive age (by 2005 there were 13 million of such men in the country) are deprived of the access to reproductive technologies and, as result, of the right to have children. This is an obvious breach of several RF Constitution articles, specifically, article 7 (that in Russia state support is provided to both maternity and paternity), article 19 on equal rights of men and women) and article 55 (on inadmissibility of laws derogating human rights). Single men wishing to have children should have access to surrogate motherhood programmes - gestational (in vitro fertilization with the donor ovum) or traditional (artificial insemination of the surrogate mother).

Pursuant to the RF Ministry of Health Order On Application of Assisted Reproductive Technologies (ART) in the Treatment of Female and Male Sterility - the main document setting forth the procedure for application of the ART in Russia - the surrogate mother services may be used strictly on the basis of serious medical grounds. The really existing social grounds, when the physically healthy woman can not, due to certain objective or subjective reasons, afford bearing a child, are not covered in the Order. But the result, irrespective of whether the reason is physiological or social, is the same - the woman is infertile. It is necessary to change this situation and allow tens of thousands of women to have children.

The surrogate mother services in Russia are actually available only to married couples, otherwise they won't be registered in the birth certificate, as the law refers only to the "spouses". But no law can prevent people from having a common child without marriage (by the way, over 400,000 children are born out of marriage in Russia every year).

2. Improvement of the Current Legislation for Fuller Realization of Human Reproductive Rights

The traditional - and the most widely spread in the world - surrogate programmes with insemination of the surrogate mother and hardly realizable in Russia, as p. 4. of Section 51 of the RF Family Code and Section 15 of the Federal Law On the Civil Status Rights refer only to the fertilization in vitro. The couple using artificial insemination of the surrogate mother may not be registered as parents in the birth certificate. De jure, this is a common gestational surrogate programme with the donor ovum, where the donor is the surrogate mother itself.

Traditional" surrogate programmes can be a real way out for the hundreds of thousands of poor childless couples who can not afford the complicated and expensive in vitro fertilization with the use of the donor ovum.

Russia refers to the countries where the principle "the mother is she who has given birth" works to the full extent, and the surrogate mother has all the rights to the child she bears. As per p. 4 of Section 51 of the RF Family Code, "a married couple who have given written consent to implantation of embryo to another woman for the purpose of bearing thereof may be registered as the child's parents only upon consent of the woman who ha given birth to the child (the surrogate mother)". This provision impeding wider use of the surrogate programmes in treatment of infertility should be altered.

The law shall provide for the possibility to change the date and place of birth of the surrogate child for the purpose of keeping this fact secret - similar to the existing adoption practices.

Taking into consideration the declining environmental conditions and the risks arising out of manmade disasters, in Russia it is essential to create gamete and embryo banks for all people who are not ready to have children now, but wishing to realize their reproductive right in the future.

3. Remove Artificial Limitations for Women Wishing to become Surrogate Mothers

Pursuant to the requirements of earlier mentioned Order 67 of the RF Ministry of Health, a woman of certain age - from 20 to 35 - who has already had her own child may become a surrogate mother.

The removal of the age limitations would significantly increase the number of successfully realized programmes.

The requirement to have own child also limits the number of potential surrogate mother.

4. Introduce the prenatal adoption programmes. To talk of adoption as an effective instrument for solving the demographic problem can be only after prenatal adoption is in force in Russia.

Thu, in many cases, payment of a consideration would allow the woman considering abortion to keep the child. As we know, most women decide to have an abortion due to financial reasons - impossibility to maintain the child - and psychological reasons - unpreparedness to take responsibility for the child. Many of them would like to carry the child and transfer it to the adopters. A significant increase in births in Russia could be expected due to decrease in the number of abortions only. According to the official statistics, there are 1 million 610 thousand of abortions for 1 million 540 thousands of births.

Apart from that, it should be taken into consideration that abortions harm a lot the reproductive health of the woman. According to experts, from 10 to 15 % of abortions result in complications. 7-8% become infertile. Death from abortions makes up one third of all maternity deaths.

The prenatal adoption mechanisms may be similar to common mechanisms through the custody and guardian agencies.

The right to reproduce refers to the basic inalienable human rights. Speaking about the ethical side, everything which helps a new person appear in this world is ethical and acceptable.

To our mind, acceptance of a law regulating the ART and the human reproductive rights would contribute a lot to solving the demographic growth problem. Also a state programme for childless people who would like to resort to ART would help a lot.

A state assistance programme for childless people who need to use in vitro fertilization is required. Now the situation is starting to change to the better. The Duma Health Protection Committee is working at the Population's Reproduction Health Programme. Fore the first time in Russia it is planned to allot 15 billion rubles per annum for in vitro fertilization, i.e. the country plans to pay for the in vitro fertilization.

Such practice is common for a range of foreign countries. Thus, in Germany the insurance companies reimburse all the expenses relating to in vitro fertilization.

In Italy infertility treatment is fully state-financed, while in Finland only 50% is covered by the state. In Austria the state pays for 6 attempts, and in Hungary and Denmark for 3 attempts. In Russia the mandatory medical insurance today does not cover the expenses for infertility treatment - while abortions are financed through the insurance.

But still there are social reproductive programmes in Russia. Thus, in the Research Center of Obstetrics, Gynaecology and Perinatology at the Russian Academy of Medical Science in Moscow 11 thousand children were born with the help of the in vitro fertilization. 200 cost-free programmes are realized each year. But this is really a drop in the bucket. State support of the enthusiastic doctors would significantly increase the number of such programmes.

The cost of three in vitro fertilization attempts (this is usually enough for the pregnancy) in Russia amounts to 250,000 rubles - and this is the sum by which the state wants to motivate the women already having children to have more. I think it would be more logical - and practical - to finance the in vitro fertilization programmes for the poor childless couples with this money. A considerable plus here is that as result of in vitro fertilization twins or triplets are born in over half of cases.

The legal gap currently existing in Russia in the sphere of non-traditional reproductive programmes restricts their application. At all times the science went ahead of the society. It created new opportunities, which never existed before. And our main task is to use these opportunities correctly.