Is Serbia ready for surrogacy?

Family Law|August 11th 2015

Historically speaking, with the exception of the Middle Ages, Serbia has followed global trends in the field of law. In 1844 it became only the fourth country in Europe to formally codify its laws in the modern way, after France in 1804, Austria in 1811 and the Netherlands in 1838.

The Civil Code of Serbia was in force until the end of the Second World War. In the period after World War II, however, as a republic within Yugoslavia, Serbia adopted a series of legal regulations but there was no civil code dealing in a comprehensive way with such legal matters as property, family, inheritance and contract law.

Today, 170 years on, Serbia has a new Civil Code.

Although still in draft, the new Code reflects the modern world and introduces a number of novelties to the Serbian legal system such as surrogacy and a new spousal maintenance fund. The draft also contains provisions that equate the legal effects of civil and church marriage.

On the other hand, other changes are arguably retrograde. For example, ‘partial adoption’, which had existed until 2005, has been reintroduced. This system allows children to be adopted by an individual without forming a relationship with their family as well. Meanwhile there has been no attempt to legislate for gay marriage or cohabitation despite widespread legal recognition in other countries.

Under the new Civil Code, a contract to give birth to a child – ie a surrogacy agreement – can be concluded between a woman who will carry and give birth to a child (the surrogate mother) and spouses or cohabitants (the intended parents) only if the latter cannot get pregnant either the natural way or with the help of other types of assisted conception. It will also possible if natural conception is not advisable because of a serious risk of passing hereditary disease on to the child. If the surrogate mother is married, the contract will require the consent of her spouse. However, the Code does not envisage the approval of a cohabiting partner and in that way it puts them at a disadvantage in comparison to spouses.

Before signing the contract or surrogacy agreement, the intended parents and the surrogate mother have to obtain medical evidence that conception is not possible or desirable either naturally or using medically-assisted reproduction. This must include proof that the surrogate mother is medically fit to carry and give birth to a child, as well as evidence that they have used psychological counseling in order to prepare for surrogate motherhood.

The surrogacy agreement must be certified by a judge. They will refuse to do so, however, if the agreed-upon compensation is disproportionate to the surrogate mother’s actual costs.

This agreement may be concluded between relatives as well as between persons who are not related. The use of fertilized cells from the surrogate mother is not allowed, however. The contracting parties may only be Serbian citizens although it has been proposed that persons who have been residents of the Republic of Serbia for at least three years are also included.

The draft Civil Code provides for two types of surrogacy. The first type is a genetic surrogacy – an arrangement in which reproductive material from at least one of the intended parents is used to fertilize the surrogate mother. The second type is gestational surrogacy, when reproductive material from both the intended parents is used to fertilize the surrogate mother.

On rare occasions, fertilizing cells from a person who has since died could be used to fertilize the surrogate mother in gestational surrogacy arrangements, if there is written consent for the posthumous use of the material. This consent, if it exists, must be recertified by the court or a notary. This posthumous fertilization can be enforced within a year of the death of the person from whom the fertilizing material has been taken.

The surrogate mother is obliged to surrender the child to the intended parents after the birth and the intended parents are in turn obliged to take him or her, regardless of the child’s gender or other characteristics. They establish a parental relationship with the child and gain all the legal rights and duties that go with that, whether their marriage or cohabitation still exists at the time of the child’s birth or not. Other rights and obligations will be defined in such contracts – for example, the surrogate mother will be obligated to lead a healthy lifestyle during pregnancy, undergo routine medical examinations, follow the doctor’s instructions, refrain from drug use, smoking and alcohol. In addition, the contract will set amount and manner of payment, as well as the mutual rights and obligations of each party in the event of a breach.

The draft Civil Code stipulates that the court may give the surrogate mother the right to contact the child if it finds that this is in his or best interests. It is not clear, however, what might lead them to this conclusion.

If it is found during the pregnancy, on the basis of sound medical assessments, the child is likely to be born with severe physical or mental disabilities, the intended parents can require the surrogate mother to terminate the pregnancy. She meanwhile, has the right to terminate if the pregnancy will put her life or health at serious risk.

It should be noted that the current text of the draft Code is likely to be changed depending on the results of an ongoing public consultation. Running for a year, this will offer experts and other members of the public an opportunity to express their views on the many issues raised.

The conclusion of this author is that the draft Civil code does tackle some very modern issues, but only time will tell if Serbia is ready for them in 21th Century.

Marija writes papers on family law issues and is involved in the legal protection of children and the elderly for the Belgrade Guardianship Authority. She is a member of the Lawyers Association of Serbia and the Association of Lawyers Belgrade.

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  1. MartaKo says:

    Today many countries revise local laws concerning surrogacy issue. As they see people go foreign states in order to solve the problem of infertility with the help of surrogacy. And I see nothing evil in such procedure. The main aspect is that laws must be written in such way to protet rights of surrogate mothers and intended parents in an appropriate way. Ukraine can be a good example in this issue. Acording to the Ukrainian law parents considered to a couple who used surrogate motherhood, and surrogate mother has no biological connection with a child. There are rather good clinics in ukrainian capital that conduct such programs. They are extremely atractive for foreigners because of the good price, high level and what is the most important high success rates of ivf programs. Some clinics even guarentees 100% positive result of the program and refund in the case of failure. I guese Serbia can make a right desicion. As ukraine for example meets thousands of infertile couples each month and develop medical tourism in such way. Maybe in future Serbia will become a compatitor for ukraine. Time will show.

  2. Melissa says:

    First of all I’d like to wish Serbian doctors and fertility specialists a good god good luck in this issue. It will be a great advance in the sphere of reproductive medicine. European court of human rights has already announced its position and the so-called opinion concerning this issue. So now it’s world countries’ turn to answer the bell. I mean they must change strict point of view and position in general that could be seen during last years. The world has been changing and the same concerns reproductive medicine. It’s not a kind of caprice of some persons! Infertility is a global challenge! And statistic’s figures by the world health organization, European Society of Human Reproduction and Embryology and others are a good confirmation of it. Marta, you have written about Ukraine and its great achievements in the field of assisted reproductive methods and artificial insemination. Yes, it’s really true fact! This wild country shows the whole world how it can do medical tourism and help people who have already despaired. There is even one clinic which is known for its incredible results and scandals. Anyway only time will show how the infertility problem will be solved in the world community.

  3. Norah says:

    Why not? I think any country can be ready for surrogacy. Another question is whether the country is ready to understand all the issues connected with the surrogate motherhood. As it needs to pass a number of important laws and set appropriate rules, norms in this sphere. It’s extremely important all sided of such procedure and their rights to be protected. I see a lot of people write about Ukraine and its surrogacy “business”. There are so many infertile people go there in order to use surrogate motherhood or egg donation programs! People from America, Europe, and Australia go to Ukraine! And all these because of its law price and friendly legislation concerning the ART use. As of Serbia it has an opportunity to become popular destination. If local officials create good conditions for surrogacy in Serbia there will be a great number of medical tourists there. You know infertility is a global problem. More and more people face the infertility challenge every day all over the world, women and men. So it will be very popular as surrogacy is in great demand with the infertile couples. Ukraine earns big money conducting such procedures absolutely legally. It attracts a great number of foreign patients from all over the world! So Serbia has a chance to become a strong competitor with Ukraine. Reading this article it can be seen that Serbia has already had a rather good starting law. I mean it includes right norms and conditions. So let’s see the views experts and other members of the public will express in the nearest future. it will be interesting what community think about the surrogate motherhood issue.

  4. yamini says:

    In most of the countries a surrogacy is legal and surrogacy treatment is very helpful to the couple that those who are unable to conceive the baby. In ukraine surrogacy treatment is legal and surrogacy clinic will provide best facilities with well experienced doctors in affordable cost.

  5. Rachel says:

    It can be seen a lot of European states start revising legal documents towards ART use. It happens because a lot of patients need just such treatment. And we know most infertile visit America or Ukraine in order to use surrogate motherhood. On the other hand they could do it at home. But it is not legal at home. In most European states surrogacy is banned. It is a well-known fact. I will not protect or criticize surrogacy. But I think it is extremely popular today. It is practically impossible to ban it. It is a huge machine. And we can see it gains momentum from year to year. I want also to say that Ukraine for example show great organization of surrogacy procedures. Thus biotexcom center which is the most popular among Europeans propose great conditions. Therefore people go there. The main thing is that everything is legal. In addition rights of both bio parents and surrogates are protected.

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