CYIL vol. 11 (2020)
CYIL 11 (2020) SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS donor. In gestational surrogacy, an egg is removed from the intended mother or by an anonymous donor and fertilized with the sperm of the intended father or anonymous donor. The fertilized egg, or embryo, is then transferred to a surrogate mother who carries the baby to term. The child is thereby genetically related to the woman who donated the egg and the intended father or sperm donor, but not to the surrogate mother. Some lesbian couples find gestational surrogacy attractive because it permits one woman to contribute her egg and the other to carry the child. Traditional surrogacy is more controversial than gestational surrogacy, in large part because the biological relationship between the surrogate mother and the child often complicates the facts of the case if parental rights or the validity of the surrogacy agreement are challenged. As a result, most states prohibit traditional surrogacy agreements. Additionally, many states that permit surrogacy agreements prohibit compensation beyond the payment of medical and legal expenses incurred as a result of the surrogacy agreement. Surrogacy within the framework of Czech legal science occurs in situations when the surrogate mother bears a child of another person after carrying him or her for full (or almost full) term of pregnancy, 15 and the terminology usually recognises the surrogate mother and the ordering couple. Surrogacy is considered in situations when a woman cannot get pregnant for health reasons, or she is not able to carry a child for full term of pregnancy or when she is prevented from getting pregnant by other serious health problems. A surrogate mother can get pregnant either in a traditional way, or (more often) by using assisted reproduction methods, 16 when eggs are provided either by the ordering woman or by the surrogate mother or by a third person. “ Artificial insemination or assisted reproduction is a process when a female germ cell “oocyte” – egg is inseminated by a male germ cell – sperm out of the woman’s body, and the arising germ – embryo is inserted into the woman’s uterus for carrying and birth (in-vitro fertilisation). ” 17 It is, however, not a matter-of-course that everybody who wants to get pregnant by using this method is immediately successful in fulfilment of such a wish. Assisted reproduction has its special rules pursuant to provisions of Section 3(1) of the Act no. 373/2011 Coll., on specific health services. They determine the methods and procedures during which germ cells are taken, they are handled, a human embryo arises through insemination of the egg by a sperm out of the woman’s body, human embryos are handled, including their maintenance, for the purpose of artificial insemination of a woman a) for health reasons during treatment of her infertility or infertility of the man, if it is little probable or even absolutely excluded for the woman to get pregnant in a natural way or to carry a viable foetus and also if other methods of treatment of her infertility or infertility of the man did not lead or with a high rate of probability will not lead to her pregnancy. Or b) as far as the need of a timely genetic examination of the human embryo is concerned, if health of the future child is endangered for the reason of a provable risk of transmission of genetically conditioned diseases or defects, the bearer of which is that woman or man. 15 For other possible features of surrogacy, seeHRUŠÁKOVA,Milana. KRÁLÍČKOVÁ, Zdeňka.WESTPHALOVÁ, Lenka. et al. Family law. 2 nd edition. Prague: C. H. Beck, 2017. p. 157. 16 Assisted reproduction is regulated e.g. in the Act no. 372/2011 Coll., on health services, no. 373/2011 Coll., on specific health services, no. 296/2008 Coll., on human tissues and cells, no. 227/2006 Coll., on research on human embryonic stem cells. 17 ŠÍNOVÁ, Renáta. ŠMÍD, Ondřej. JURÁŠ, Marek et al. Current issues of family-law regulation: Parenthood, upbringing and maintenance of minors . Prague: Leges, 2013, p. 108.
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