CYIL vol. 11 (2020)
CYIL 11 (2020) SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS 5. Considerations concerning future issues of the surrogacy legalisation process In her publication “Surrogate Motherhood Families” 42 , Prof. Olga van der Akker formulated an opinion that the society starts to accept that there are alternative ways of how to have a family, and it is possible to expect that with the time development and if positive aspects of family life are emphasised, the surrogacy stigma will start to disappear. The author details the psychological adaptation required to continuing changes in public opinion, advances in technologies and new legislations in surrogate motherhood and discusses their impact at individual, societal and global levels. She describes the competing interests and interactions between legal, organisational, personal, social, psychological and cultural issues in relation to biological and genetic surrogate and commissioning parenthood. The process of legalisation of surrogate motherhood is about to undergo the second phase, which is adoption of this alternative as a common form of future parenthood which, however, must have its limits in criminal law. But still, the institute of surrogacy is still an innovation and couples who decide for the use of surrogacy should think about this decision considered by them very well because if they take this step, they are not deciding for themselves only, but in this case they already decide also for the child which is to be born. The importance of a wide range of ethical and legal issues, such as the Christian-Jewish cultural tradition about the miracle of man’s birth, will probably be gradually eliminated, not only for the reason that treatment with the help of surrogacy is a relatively successful method. From the medicine point of view it is not any complicated treatment intervention, but from the ethical, legal and social viewpoints this process is very complex and brings a number of issues for biological parents, surrogate mother, and last but not least for the child too. 43 For surrogacy it is therefore absolutely necessary to consistently perceive legal situations and case law of a particular country so that the future adoption processes, both legal and medicine, can be resolved in a comprehensive way. As far as the case of the Czech Republic is concerned, some experts 44 do not recommend practising surrogacy in case of couples when neither of the persons is a national of the Czech Republic and where they plan the delivery and subsequent legal steps in another country, and they even do not recommend to apply treatment with the help of surrogacy in the case when the surrogate mother is not a national of the Czech Republic. Conversely, they recommend the couple to consider, still before the beginning of the surrogacy process, whether they act to the benefit of the child or whether the benefit of surrogacy serves for the “parents” only but not for the child. The Council of Europe issued a recommendation regarding compensation for surrogate mothers 45 , but it should not exceed compensation of expenses and lost earnings. Anything 42 VAN DEN AKKER, Olga, Surrogate Motherhood Families , Palgrave Macmillan 2017, ISBN 978-3-319-60453-4, 321 p. 43 RUMPIK D., Ethical and legal aspects of surrogacy, Dissertation in the branch of Gynaecology and Obstetrics, Brno 2018. 44 RUMPIK D., Ethical and legal aspects of surrogacy, Dissertation in the branch of Gynaecology and obstetrics, Brno 2018, p. 60. 45 Parliamentary Assembly: Council of Europe. Assembly.coe.int: Children’s rights related to surrogacy (doc. 14140) [online]. Strasbourg: Council of Europe, 2016 [cit. 2017-06-25]. Available from: http://assembly.coe.int/nw/ xml/Votes/DB-VotesResults-EN.asp?VoteID=36189&DocID=16001&MemberID=.
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