CYIL vol. 11 (2020)
CYIL 11 (2020) SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS motherhood), unlike the complete surrogate motherhood during which the surrogate mother is the genetic mother of the child. For example, the Human Fertilisation and Embryology Authority 25 states that they are the UK’s independent regulator of fertility treatment and research using human embryos. “As a world-class expert organisation in the fertility sector, we were the first statutory body of our type in the world”. At the same time, they state that they were set up by legislation as an “arm’s length body” of the Department of Health, meaning that they work independently on behalf of the Government. 26 Centres of assisted reproduction 27 do not ensure any surrogate mothers for the couples and they must not act as intermediaries in the surrogacy process either, their task is only the actual assisted reproduction. 28 Since the beginning, the matter has not involved any banal step and any simple solution, whether medicine or legal. The hardest task of future parents is to find a suitable surrogate mother. With regard to t he fact that the current society is highly motivated by financial means, which is excluded in the case of surrogacy, it is not an absolutely simple task. This means that surrogate mothers are, in most cases, relatives of the ordering couple or women that already have their children and wish that also the women who unfortunately cannot have their own children for health reasons could have a child, without wanting to earn any money thereon. It is suitable for a surrogate mother not to be married, because if she is married, it is her husband and not the man from the ordering couple that is subject, according to the Czech legislation, namely Section 776 of the Civil Code, to the first legal presumption of paternity. Before the actual delivery, the surrogate mother and the man from the ordering couple should arrive at the Vital Statistics authority, where they declare, with mutual consent, their parenthood with regard to the child. By taking this step, the ordering couple has obtained a partial victory, but not yet in the full extent. The most important step for the ordering couple to become parents of the newly born baby is that the surrogate mother should provide her consent with adoption of the newly borne baby. The consent is necessary according to provisions of Section 813 of the Civil Code and it can only be provided after the lapsing of six weeks from the birth of the child, which is quite a long time for the surrogate mother to have a possibility of reviewing her original intent of provision of the consent. And it is just the place where problems often occur, because the mother is not obliged, in any way, to grant her consent, and if she thinks over all circumstances after the delivery, it is just her that is the legal mother of the child. 29 If surrogate mother granted her consent before the lapsing of six weeks from the birth of the child, such a legal conduct would be void and null, and as provided for by provisions of Section 813(2) of the Civil Code, such a consent would not be taken into account. It is, however, important that mother can grant her consent to adoption for a particular person, and it means that she will be supposed to grant her consent to adoption just to the woman 25 https://www.hfea.gov.uk/treatments/explore-all-treatments/surrogacy/. 26 https://www.hfea.gov.uk/about-us/. 27 e.g. Clinics of Reproduction Medicine of Zlín – IVF Czech Republic; https://www.ivf-zlin.cz/24903-surogatni- materstvi. 28 As above: ŠÍNOVÁ, Renáta. ŠMÍD, Ondřej. JURÁŠ, Marek et al. Current issues of family-law regulation: Parenthood, upbringing and maintenance of minors . Prague: Leges, 2013, pp. 109-110. 29 In the same way, see NOVOTNÝ, Petr. IVIČIČOVÁ, Jitka. SYRŮČKOVÁ, Ivana. VONDRÁČKOVÁ, Pavlína. New Civil Code. Family law. 2 nd edition. Prague: GRADA Publishing, a.s. 2017, p. 108.
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