Surrogacy is the practice whereby one woman, the surrogate mother, becomes pregnant with the intention of handing over the child to the intended parents after birth. This practice is preferable among infertile couples, same sex couples and even single people who wish to have a child, as the child might be genetically linked to them and they won’t need to undergo the lengthy process of the adoption system. However, surrogacy is not available everywhere. There are some countries that have legalized surrogacy and others that explicitly prohibit its practice. Cyprus is amongst the countries that have not yet legislated on the matter, thus surrogacy is an option for those who cannot get pregnant.
Nevertheless, the Parliament has been discussing the possibility of introducing some provisions within the legal framework of Cyprus that will regulate surrogacy. The Medical Assisted Human Reproduction Bill (MAHR) has been introduced to Parliament and is being discussed by Parliament members, the Cyprus Bioethical Committee, the Cyprus Medical Association and other bodies that are involved in the process of medical assisted human reproduction. This Bill provides for every method of medical assisted human reproduction and introduces the Medical Assisted Human Reproduction Council, which will be responsible for regulating and monitoring the practice of medical assisted reproduction.
To begin with, in discussing the proposed article dealing with surrogacy, it should be noted that surrogacy can either be partial or full. Partial surrogacy is where the surrogate mother is inseminated with the intended father’s sperm, whereas a full surrogacy is where an embryo created in vitro, usually by the intended parents’ gametes, is transferred to the surrogate mother’s uterus. The MAHR Bill distinguishes between partial and full as it allows for a full surrogacy in certain circumstances and prohibits the placement of live gametes in a woman, which leaves insemination by the surrogate mother herself unregulated. Here the Bill could have provided for insemination to be carried out only in approved medical facilities and thus regulating partial surrogacy as well.
According to the Bill, the placement of an embryo in the surrogate mother’s uterus will only be possible after a Court Order and when the parties have signed a written agreement that does not provide for any consideration. However, the MAHR Bill does not state the actual nature of the Order and whether it is just permission for surrogacy or something more. Also, it does not provide who is to be treated as the child’s legal parent. The Bill does not state whose name is to be written on the child’s birth certificate; whether it is the surrogate mother’s name or the intended parents’ names. Moreover, it neglects to mention whether the written agreement of the parties is enforceable or if the surrogate may, if she wishes, keep the child after birth. The Bill should have addressed the issue of enforceability of surrogacy agreements so as to not leave it upon the Courts to decide on the matter if a surrogate refuses to give the child to the intended parents and the case goes to trial.
Nevertheless, to get a Court Order the commissioning couple’s request must firstly be approved by the MAHR Council. For approving an application, the Council must be satisfied that it is medically impossible for the intended mother to bear a child, and that the surrogate is fit for gestation. Furthermore, the Bill provides that the commissioning couple and the surrogate should undergo the required by the Council medical examinations and psychological evaluations.
It can be seen by the MAHR Bill that the practice of surrogacy is to be exercised only by heterosexual couples and on a strictly altruistic basis. This is due to the fact that the written agreement between the parties must be without consideration, which means that the surrogate will not get paid for her services and the whole process will not be equivalent to “womb hire”. Even though the surrogate will not be getting a lump sum, the Bill allows for the payment of necessary expenses, as well as any damages that the surrogate might suffer due to any leave of absence from work. Nevertheless, the maximum amount payable to the surrogate will be determined by the Council. The fact that the Bill allows only for altruistic surrogacy and the surrogate is not to get paid, apart from the necessary expenses, might discourage women who would otherwise be willing to act as surrogates. As a consequence, the lack of surrogates might force intended parents to travel to countries that allow for commercial surrogacy, so that they can find a woman who will be willing to act as their surrogate. In its turn this might cause other problems such as the child being left stateless and parentless.
This issue arose on several occasions in the UK where intended parents had traveled to countries such as Ukraine, that allow for commercial surrogacy. The problem here is created when the child is brought from one country to the other, due to the fact that under the Ukrainian law the intended parents are considered as the child’s legal parents from the moment of conception and their names are written on the child’s birth certificate, whereas UK treats the surrogate as the child’s legal mother until the intended parents secure a parental order. Thus, the child is left parentless and subsequently stateless. Even though it seems that the proposed legislation is providing a good starting point for a legal framework that will regulate surrogacy it still needs careful consideration so that the practice of surrogacy can be carried out as intended.