CYIL vol. 11 (2020)
MONIKA FOREJTOVÁ – PAVLA BURIÁNOVÁ – VLADISLAV VNENK CYIL 11 (2020) In the case of surrogacy, the issues are still more complex if also surrogate mother should enter into a wider family framework, even though for the time being this issue is resolved in the private-law area mostly in parameters of a business agreement made between the parents and the surrogate mother. Even here it is, however, possible to use the cited definition that if the child grows in harmonic environment, it is of course in the best interest of the child. On the other hand, there is no guarantee even in families of biological parents and their children born from their mother that the child will grow up in harmonic relations with both or at least one of the child’s parents. That is why, due to the current trend of the increasing age of first-time mothers, postponement of motherhood to the time of sureness of incomes and housing, the possibility of surrogacy may seem to be a suitable solution especially for infertile couples. Therefore, surrogacy may appear even more suitable than e.g. adoption of a school-age child, because in case of surrogacy, the child will grow with parents already from the child’s birth, and a very close relation will be developed from this moment between the parents and the child. Nevertheless, it is necessary to note that it is never possible to estimate ahead what impact this fact is to have just on the child, which is likely to lead to updates of especially psychosocial and ethical issues, as soon as there is a possibility of investigating (empirically) impacts on children born from surrogate mothers. In the current society it is possible to see, always more and more often, various situations when it is not excluded, from a medicine point of view, for a child to be borne by a woman who is not genetically related with the child, 11 but from a legal point of view she is the child’s mother. Such situations will require, earlier or later, a solution. That is why also the Czech Civil Code responded to the issues of surrogacy, when it has mentioned (since 1 January 2014 in provisions of Section 804) the notion of surrogate motherhood (surrogacy), without explaining or dealing at a detailed manner with this term. “ Therefore, it is necessary to perceive these provisions from a medicine point of view, not correlating in all cases with the basic principle of status family law. ” 12 With regard to complexity of this instrument, which is dealt with at a detailed level below, the creators of the “new” Civil Code did not attempt to prepare any extensive regulation of surrogacy, they only mentioned it in connection with adoption. Newly it is possible to arrange for adoption between related persons in cases of surrogacy. Legal theory finds this change to be important, progressive and positive, because in spite of the fact that legal regulation was missing there, surrogacy was medically carried out in a legal way. 13 2. Surrogacy– current definitions The Human Rights Campaign 14 offers a view of surrogacy in such a way that it outlines two types of surrogacy — traditional surrogacy and gestational surrogacy. In traditional surrogacy, a surrogate mother is artificially inseminated, either by the intended father or an anonymous donor, and carries the baby to term. The child is thereby genetically related to both the surrogate mother, who provides the egg, and the intended father or anonymous
11 See TRNKOVÁ, Lucie. Substitute child care . Prague: Wolters Klluwer ČR, 2018. p. 32. 12 TRNKOVÁ, Lucie. Substitute child care. Praha: Wolters Klluwer ČR, 2018. p. 32.
13 NOVÁ, Hana. Section 804 (Exclusion of adoption). In: ŠVESTKA, Jiří. DVOŘÁK, Jan. FIALA, Josef. ZUKLÍNOVÁ, Michaela and others. Civil Code: Comments, Volume II, (Section 655-975 Available in the ASPI System. ASPI_ID KO89_b2012CZ. Wolters Kluwer. ISSN: 2336-517X. 14 https://www.hrc.org/resources/overview-of-the-surrogacy-process.
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