Surrogacy can be defined as the legal arrangement where a woman agrees to carry and give birth to a baby for a couple, with the intention of giving the baby to the couple when it is born. Often, the egg and sperm of the couple will be taken and used to create an embryo, which will then be implanted into the uterus of the surrogate. In Cyprus, the Medically Assisted Human Reproduction Law of 2015 (the “Law”) recognizes surrogacy as a valid method of medically assisted reproduction, giving couples, who are struggling with fertility problems, an invaluable way of becoming parents. This article aims to explain the procedure for creating a valid surrogacy arrangement under the Law, as well as the general principles and restrictions that the Law imposes regarding the commercialization of surrogacy.
Creating a surrogacy arrangement
There are three steps that must be followed before a surrogacy arrangement can be deemed valid. Firstly, the couple intending to have a child through surrogacy must apply to the Council of Medically Assisted Reproduction (the “Council”), in order to obtain its written approval. According to Section 23, the Council will give its written approval once it is satisfied that:
Once the Council has given its written approval, the second step is to apply to the Court for the issuance of a surrogacy decree. Subject to Section 24 of the Law, the Court will issue this decree when it is satisfied that the couple has obtained the approval of the Council, as stipulated above. The Court may set conditions, or give specific instructions regarding the decree, in order to ensure that the desired purpose is achieved.
The final step is the creation of a written agreement between the couple and the surrogate mother, as stated in Section 25 of the Law. The agreement must state, at least, the following:
Once the written approval of the Council has been given, the surrogacy decree has been issued by the Court, and the couple and surrogate have signed a written agreement, it is considered that they have entered into a valid surrogacy arrangement.
General principles regarding surrogacy
Section 22 contains the general principles regarding surrogacy that the parties must consider before creating a surrogacy arrangement. Firstly, it is noted that the surrogate mother will not be the legal parent of the child. Instead, the couple will be the legal parents of the child, having all the rights and obligations that parenthood entails. The couple must be ready to receive the child once it is born, and it is not an option to refuse to take the child for any reason. Failing to take the child born from a surrogate mother, or abandoning the child, is a criminal offence that is punishable with imprisonment for up to five years.
In addition, the Law clearly states that the surrogate mother cannot charge a fee for agreeing to carry the child. However, the couple can pay the surrogate to cover her expenses related to the pregnancy, childbirth, and any complications that may arise. Further compensation may be given if the surrogate suffers harm that leaves her unable to work during the implantation process, throughout the pregnancy or after childbirth.
Restriction on the commercialisation of surrogacy
Subject to Section 26, creating a surrogacy agreement for commercial purposes is strictly prohibited. This means that a party to a surrogacy agreement cannot initiate or participate in commercial negotiations regarding the agreement, nor can they make financial offers to conclude such an agreement. Failure to adhere to the above is considered a criminal offence, punishable by imprisonment for up to one year, or a fine up to €50,000, or both.
It is also prohibited for a woman to advertise that she is willing to offer her services as a surrogate mother, according to Section 27. Any person who advertises (through printed or online platforms) that they are willing to negotiate, or that they wish to enter into a surrogacy agreement with a couple, commits a criminal offence. Criminal liability will also be incurred by the publisher of such an advertisement.
In conclusion, surrogacy is regarded as a crucial method of medically assisted reproduction which allows a couple to avoid the lengthy adoption process, and have a child that is biologically related to them, despite problems in conceiving or sustaining a healthy pregnancy. The Law prioritizes the best interests of the child to be born, but safeguards also exist to ensure that both parties in a surrogacy agreement are well-informed about their rights and obligations, and that each party is treated fairly.
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Stella Hadjiloucas, Legal Consultant, Tel 25363685 or email Stella.Hadjiloucas@kyprianou.com