CYIL vol. 11 (2020)

MONIKA FOREJTOVÁ – PAVLA BURIÁNOVÁ – VLADISLAV VNENK CYIL 11 (2020) As it has already been stated above, surrogacy is not regulated in legislation of the Czech Republic in an extensive way, it is only mentioned in provisions of Section 804 of the Act no. 89/2012 Coll., Civil Code (hereinafter referred to as “ Civil Code ”). It is, however, important that it is not forbidden by the legislation, 18 as it is the case in other countries, e.g. in France, Italy or Austria. 19,20 If surrogacy was regulated by the legislation, it could easily happen that there would be legal uncertainty of both the child and the surrogate mother as well as the ordering couple, especially in case when the child is refused by both the surrogate and biological mothers, for any reason. 21 3. Process of surrogacy – case of the Czech Republic The ECtHR is progressively legitimising surrogacy by a rapid succession of decisions, each carrying further the liberalisation of this practice and the logic of the right to a child. 22 Cases concerning gestational surrogacy arrangements raise issues mainly under Article 8 (right to respect for private and family life) of the European Convention on Human Rights, which states: “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and as necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ” 23 In order to determine whether the interference by the authorities with the applicants’ private and family life was necessary in a democratic society and a fair balance was struck between the different interests involved, the European Court of Human Rights examines whether the interference was in accordance with the law, pursued a legitimate aim or aims and was proportionate to the aim(s) pursued. As it has already been stated, we differ two types of surrogacy, namely traditional (complete) and gestational (partial), 24 when a fundamental question is whether the genetic material is provided from the ordering couple (in that case the matter concerns an incomplete surrogate 18 According to Doc. Králíčková, one should not derive, with a reference to the principle of the autonomy of will, that a deviation from the basic status rule is possible, which could have been prevented if legislation of the Czech Republic had been inspired by legislation of Slovakia, according to which it applies that the mother of the child is the woman who bore the child, and the agreements and contracts which are in contradiction with this rule are invalid – see KRÁLÍČKOVÁ, Zdeňka. Mater semper certa est! On surrogate and limping motherhood . Právní rozhledy, 2015, no. 21, C. H. Beck, p. 725. 19 See HRUŠÁKOVA, Milana. KRÁLÍČKOVÁ, Zdeňka. WESTPHALOVÁ, Lenka. et al. Family law. 2 nd edition. Prague: C. H. Beck, 2017. p. 157. 20 Unlike that, surrogacy is permitted e.g. in England and California. 21 In the same way: HRUŠÁKOVA, Milana. KRÁLÍČKOVÁ, Zdeňka. WESTPHALOVÁ, Lenka. et al. Family law. 2 nd edition. Prague: C. H. Beck, 2017. p. 157. 22 https://eclj.org/surrogacy/echr/the-liberalisation-of-surrogacy-by-the-echr. 23 E.g. Judgements in the case: Mennesson and Labassee , Foulon and Bouvet v. France, Laborie v. France , for more information please see https://www.echr.coe.int/Documents/FS_Surrogacy_ENG.pdf. 24 At a detailed level: BUREŠOVÁ, Kateřina. Surrogate motherhood and its (not only) legal aspects . Právní rozhledy 6/2016, C. H. Beck, p. 193.

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