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.