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Appearance of a new child in this world is always an outstanding event. But not everyone can experience this happiness. The unprecedented medical achievements in the sphere of reproductive technologies have given hope to people who have desperated to have children. But, as it usually happens, development of science goes ahead of the ethical and legal adaptation of society to such new achievements. The legal regulations are not perfect and they always follow the society's development. This is true for the reproductive technologies regulations which are now in force in the world. The laws and regulations relating to surrogate motherhood or other current reproductive programmes are one of the most complicated issues of today's legal practice. From the common point of view, surrogate motherhood often means "made-to-order" carrying of a child by a woman. From the legal, as well as the sensible point of view, this is not so. In this article we will tackle the surrogate and pseudosurrogate motherhood issues. To make distinction between the two notions, it is appropriate to introduce a generic term covering all "made-to-order" deliveries with use of reproductive technologies - reproductive motherhood.

First of all, it should be noted that the current Russian legislation is one of the most liberal in the world in what concerns application of reproductive technologies.

Let us refer to the law. The Fundamental Principles of the RF Law on Health Protection dd 22.06.93 N 5487-1, Article 35 Artificial Insemination and Embryo Transplantation reads:

• "Any adult woman of child-bearing age is entitled to artificial insemination and embryo implantation.
• Artificial insemination and embryo implantation shall be done by organizations certified to carry out medical activities and subject to consent of the married couple (or the single woman).
• Information on the artificial insemination and embryo implantation, as well as the identity of the donor shall be treated as confidential medical information.
• The woman shall be entitled to receive information relating to the procedure of artificial insemination and embryo implantation, medical and legal consequences, medical and genetic survey results, appearance and nationality of the donor, which shall be provided by the doctor carrying out medical intervention".

In other words, any married or single woman, subject to her consent and consent of her husband (if any), can undergo the artificial insemination and embryo implantation procedure in the licensed medical establishments and thus act as a surrogate or reproductive mother.

It should be noted, however, that according to the law, surrogate motherhood is bearing a child for a married couple (i.e. persons officially married as of the time of embryo implantation) which is biologically "foreign" for the woman who carries it.

This is what the Family Code says about a married couple:

• Section 1, p. 2. Only marriage certified in the civil registration bodies is acknowledged;
• Section 10. Marriage. P.1. Marriage shall be registered in the civil registration bodies. P.2. The rights and obligations of the spouses emerge as of the state registration of marriage in the civil registration bodies".

For the married couple to be able to resort to surrogate motherhood programme, certain medical grounds are required. They are set forth in p. 7 of Appendix 1 to the RF Ministry of Health Order dd 26.02.03 N 67 On Application of Assisted Reproductive Technologies (ART) in the Treatment of Female and Male Sterility (registered in the RF Ministry of Law as of 24.04.03 ã. N 4452):

"Grounds for Surrogate Motherhood:

• absence of uterus (built-in or acquired)
• deformation of uterine cavity or cervix (congenital malformation or as consequence of a disease)
• uterine cavity synechia (unsusceptible of treatment)
• somatic diseases (when bearing of a child is prohibited)
• unsuccessful attempts of vitro fertilization, provided embryos of high qualities are obtained and transfer thereof does not result in pregnancy".

Not all women can become surrogate mothers. The above Appendix 1 to the Ministry of Health Order states: "Surrogate mothers may be women who agree to participate in this programme of their own free will.

Requirements to surrogate mothers:

• age from 20 to 35;
• having their own healthy child;
• psychologically and somatically healthy.

Thus, only a woman taking part in the above programme for bearing child of a married couple who are the biological parents of a child is the surrogate mother by law.

Other programmes also based on the modern reproductive technologies which differ from the above programme are not surrogate motherhood as per the current legislation. In other cases it is better, as mentioned above, to use the term "reproductive motherhood", and for the women taking part in such programmes to use the word "reproductive mother" or "repro-mother". All relations arising out of such programmes are governed exclusively by the common family law.

The main catch for the biological parents in case of classical surrogate motherhood is that the surrogate mother after the birth of a child may change her mind and refuse to give to the biological parents her consent to registering them as the child's parents. This right is given to the surrogate mother by virtue of the current Family Code (p. 4 of Section 51):

• The married couple who have given their written consent to application of the artificial insemination method or embryo implantation, in case a child is born as result of application of such methods, shall be registered as its parents in the civil register.
• The married couple who have given their written consent to implantation of an embryo to another woman for the purposes of bearing thereof, may be registered as the child's parents only in case the woman who has given birth to the child (the surrogate mother) gives her consent to this".

The Law on the Acts of Civil Status dd 15.11.97 N 143-FZ also reads:

Section 16. Child Birth Application

5. Upon state registration of the child pursuant to application of the married couple who have given their consent to implantation of embryo to another woman for carrying thereof, together with the document confirming birth of the child a document shall be provided issued by the medical establishment and confirming the consent of the woman who has given birth to the child (the surrogate mother) to registering the above married couple as the child's parents.

Thus, the surrogate mother may leave the biologically foreign child to herself and be officially acknowledged as its mother, with the relevant civil and legal consequences.

The surrogate mother may do so as result of the maternal feelings towards the child she bears or for the purpose of blackmailing the biological parents. This is one of the worst scenarios for the parents, but it is too early to lose heart. Even after the record in the birth register is made, such record may be appealed against in court, as claimed by the biological father or mother of the child. This is what the Family Code states in this respect:

Section 52. Contestation of Paternity (Maternity)

1. Registration of parents in the birth register, as per p. 1 and 2 of Section 51 of this Code may be contested only in court and as claimed by the person registered as the father or mother of the child or the person who is actually the father or mother of the child, or the child itself on its full age, the child's guardian/custodian, or guardian of the parent adjudged incapable.
2. The claim of the person registered as the father of the child pursuant to p. 2 of Section 51 of this Code as to contestation of paternity may not be satisfied if as of the time of the registration the person knew that he is not the actual parent of the child.
3. The parent giving its lawful written consent to application of the artificial insemination method or embryo implantation may not, when contesting paternity, refer to such circumstances.
4. The parents who have given their consent to implantation of embryo to another woman and the surrogate mother (part two of p. 4. of Section 51 of this Code) may not refer to such circumstances when maternity or paternity is contested after registration of parents in the birth register".

Can a legally adequate agreement between the biological parents and the surrogate mother prevent such turn? An agreement acknowledged by the current law may be only entered into for the purpose of acquisition/transfer of civil rights and obligations. The transfer of the child from the surrogate mother to its biological parents may not be the subject of the agreement, as the child may not be subject of a transaction. The agreement may and should provide only for a certain compensation for creation of the best conditions for the surrogate mother bearing the child and for her further rehabilitation. A legally adequate agreement shall contain provisions that in case the surrogate mother decides to keep the child to herself, she not only loses the right to the above compensation, but shall compensate the biological parents for all expenses under the agreement.

Thus the relations between the biological parents and the surrogate mother may and should be transferred into the civil and legal framework, which allows, to the certain extent, to guarantee that the surrogate mother, understanding the lack of legal prospects, will transfer the child to its biological parents.

The above provisions apply to the reproductive motherhood, except that the provisions of Appendix 1 to the Order of the RF Ministry of Health dd 26.02.03 N 67 On Application of Assisted Reproductive Technologies (ART) in the Treatment of Female and Male Sterility do not apply, as well as that the maternity may not be contested in court in this case (except when the non-anonymous oocyte donor is used). The biological mother may refuse to have parental rights, but may be deprived of such rights only pursuant to court's decision. Moreover, even if she is deprived of the parental rights, her parents will be still entitled to communicate with the child, and she herself may reestablish such rights.

Consequently, in case of reproductive maternity the biological mother can always have the technical means to use the baby as the blackmailing instrument starting continuous litigation.

General Recommendations:

1. With the help of competent lawyers, to prepare and enter into a legally adequate agreement with the surrogate or reproductive mother providing for elaborate compensation transfer.
2. Obtain written consent from the surrogate mother for participation in this programme.
3. Carry out legal expertise of the agreement with the medical establishment where the medical part of the programme will take place.
4. Any negotiations with the surrogate or reproductive mother shall be carried out by the competent lawyers, or, at least, in their presence.
5. Prior to the birth of the child, obtain the surrogate or reproductive mother's signature on all documents which might be required later.
6. Throughout the entire duration of the matter, work with a legal company specializing un the sphere of family law, which could, if so required, represent the interest of the parent (s) in court in case of any disputes.