Surrogacy in Cyprus & Surrogacy Agreements
Surrogacy is “ the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth (1)”. There are two main forms of Surrogacy
A levy woman (hereinafter called the “ surrogate woman”) carries an embryo comprised of the egg of the natural ( intended) mama and the sperm of the natural ( intended) father (hereinafter concertedly called the “ commissioning couple”). The surrogate woman’s egg isn’t used. In this case the “ in vitro fertilized” embryo of the commissioning couple is placed in the uterus of the surrogate woman who’ll go through the process of gestation, give birth to the child and hand it over to the commissioning couple.
The process is also known as “ Full Surrogacy” or “ Gravid Surrogacy”. The surrogate woman has no inheritable relationship to the child. In other words, the surrogate is simply a “ visitant” for the commissioning couple’s embryo.
The intended father’s sperm is instinctively inculcated to the surrogate woman who formerly again carries the child and agrees to hand it over to the commissioning couple at birth. One may name this as “ Partial Surrogacy” as the surrogate woman has a inheritable relationship to the child whereas the intended mama has none.
The process of surrogacy isn’t free from problems, one similar problem would be that the commissioning couple want the child and the surrogate woman wants to keep the same child and thus refuses to hand the child over after birth to the commissioning couple.
The Legal Position regarding the regulation of Surrogacy in Cyprus – The Legal Gap
As the legal system in Cyprus stands now there are no bills and/ or regulations which regulate surrogacy. Further, there’s no licensing scheme which could control surrogacy arrangements.
Problems arising due to the absence of Surrogacy Laws and possible results
In a situation where the surrogate woman is single and gives birth to a child and also hands it over to the commissioning couple, according to Law187/91 the child is considered to be the child of the intended father and the surrogate woman’s born out of connubiality. In this case, the maternity of the child may be established either by voluntary acknowledgment or by a Court order. A voluntary acknowledgment can not be abandoned. In this case, the intended father needs the concurrence of the surrogate woman as she’s supposed to be the natural mama of the child. The coming step for the commissioning couple is to make an operation to the court for the relinquishment of the child. The operation should be made by the intended father and the intended mama, this being his woman.
Under Cyprus Adoption Law 19 (I)/ 1995 an relinquishment order can be effected handed that the natural mama (the surrogate woman in this case) gives her concurrence (it should be given at least 3 months after the child is born) and the child has at all times during the antedating 3 months lived with the consanguineous parents ( videlicet the commissioning couple).
Section 5 of the Law 19 (I)/ 1995 provides that in order for the Court to issue and relinquishment order it should be satisfied that, among others, the party (ies) applying for relinquishment haven’t agreed to give to any person any payment or price or admit from any person any payment or price for or in consideration for the relinquishment of a child. Eventually, whether an relinquishment order would be affected is dependant on whether it’s considered to be in the child’s “ stylish interests”. The term “ stylish interests” has an indefinite legal meaning. What’s in a child’s stylish interests, isn’t fluently determined. For illustration, the Court will have to decide whether it’s better for a child to be reared by the woman who gave birth to him, whether the domestic status quo will be disturbed, whether the espousing parents aren’t over agedetc.
In a situation where the surrogate woman is wedded and the child results from supported gravidity procedures with her hubby’s concurrence, also the legal father is the surrogate’s hubby and not the intended father. In this case both the surrogate and her hubby should give their concurrence which can not be given previous to the completion of 3 months form the birth of the child. Once this concurrence has been given the commissioning couple should apply for common relinquishment of the child.
If an relinquishment order is made all the rights and scores of the natural parents cease to live and are transferred to the consanguineous parents (2). The espoused child will be considered for all purposes as the legal and natural child of the consanguineous parents and in no case will be supposed to be the child of any other person (3).
The critical case, still, will do where the Surrogate refuses to hand over the child to the commissioning couple. If this is the case also the commissioning couple will be left without requital because there’s no concurrence on behalf of the surrogate mama and no procedures live in our Legal System that could impel her to hand over the child. Consequently, this gap in our law will leave the commissioning parents without remedy.
“ Surrogacy Agreements”
With regard to the conformation of a‘Surrogacy Agreement,’one should be extremely careful because is a contract which will give for a matter that isn’t regulated under Cyprus Law. Thus if commodity goes wrong, for illustration, the surrogate refuses to hand over the child also the possibilities for administering this Agreement are veritably little.
Still, if the commissioning couple and the surrogate want to subscribe similar Agreement also the crucial matters to be considered are the public policy aspects of this Surrogacy contract and/ or Agreement. It should be borne in mind that as Cyprus Law stands now the commissioning couple will actually have to borrow the child to be born only if the surrogate gives her concurrence. Consequently, the following points regarding a academic Surrogacy Agreement should be noted
According to the Adoption Law, the whole idea of relinquishment is that the placement of the child is dependent on where the child’s “ stylish interests” lie at the time of the operation. Thus, a contractual decision before generality on who should borrow the child would be against the policy of the solon to give equal weight to the rights of both natural parents.
The Surrogacy Agreement shouldn’t expressly give for the destruction of the rights of one of the natural parents, videlicet the natural mama.
It shouldn’t guarantee the separation of a child from its mama.
It shouldn’t separate the child from its mama anyhow of her wishes and her motherly fitness.
It shouldn’t be an agreement for the trade of a child. The only plutocrat that can be paid is to cover “ reasonable charges” of the surrogate woman.
In conclusion of this point, we’re of the opinion that in a situation where the commissioning couple decides to do with surrogacy, also they should do so in the United Kingdom or in Greece where the matter is regulated by laws and regulations for the protection all the interests of all parties involved.
Legal regulation of Surrogacy in the United Kingdom
Surrogacy Arrangements Act 1985
The said Act was legislated to enjoin the wrong of marketable surrogacy.
Section 1 of the Act prohibits the reclamation of women as Surrogates and Section 2 prohibits the concession of surrogacy arrangements by agencies on a marketable base. Advertising of or for surrogacy services is also banned ( Section 3). Surrogates and the commissioning couple are pure from felonious liability ( Section 2 (2) (a) (b)).
Section 1A explicitly states that surrogacy agreements aren’t enforceable as contracts. With this is to be said that if the surrogate is happy to hand over the child also the courts will help the commissioning couple to keep the child. Still, if the surrogate changes her mind and refuses to hand over the child the commissioning couple can not sue the surrogate for breach of contract or ask a court to order the performance of the contract. Nor, can a surrogate sue if she doesn’t admit any agreed payments.
The Mortal Fertilisation and Embryology Act 1990
27 of the Mortal Fertilisation and Embryology Act 1990 provides that “ The woman who’s carrying or has carried a child, as a result of the placing in her an embryo or sperm and eggs, is to be treated as the mama of the child and not any other woman”.
30 of the Act allows the commissioning couple to acquire maternal status and rights, there are a number of conditions which need to be satisfied for similar rights to be acquired
The aspirants must be married, with one of the being genetically related to the child (s. 30 (1)).
The operation must be made within six months of the birth of the child (s30 (2)).
The child must be living with the couple at the time the operation or order is made (s. 30 (3)).
Both aspirants have attained the age of 18 (s. 30 (4)).
The Court needs to be satisfied that the couple and the surrogate mama have freely acceded to the maternal order being made (s. 30 (5)).
No plutocrat or other benefits, piecemeal from charges, must have passed to or from the aspirants, unless the Court authorized else (s. 30 (7)).
The legal position in Greece
The matter of Surrogacy is regulated in Greece under Article 1458 of the Greek Civil Code.
Handed that there’s a written agreement between the commissioning couple who wish to have a child through surrogacy and the surrogate woman ( including her partner, if she’s wedded) without any fiscal benefit from it, also all involved parties shall have to file an operation to the Court, that they wish to suffer the specific procedure which shall issue its decision after establishing that the ensuing conditions are met
The woman who files the operation and wishes to have a child isn’t physically suitable of having one.
The woman offering to be the surrogate mama is healthy and suitable to carry such a gestation and shall suffer a thorough cerebral evaluation.
The embryos implanted to the surrogate mama don’t belong to her but to the woman wishing to have the child or to a third party, being known as a patron.
The commissioning couple wishing to have a child as well as the surrogate woman accepting to carry the gestation should all be endless residers of Greece.
Farther the law provides that only after the applicable Court authorization allowing the perpetration of the supported reduplication fashion has been issued, can the croaker do with the corresponding medical procedure.
