In the dissertation thesis for the first time in the domestic civil doctrine, the
institution of surrogacy in international private law, the genesis of the legal regulation
of the institution of surrogacy in international private law, the sources of legal
regulation of the institution of surrogacy in international private law and conflicting
links, as well as the peculiarities of the subject composition of the institute of surrogate
motherhood in international private law, forms of implementation of reproductive rights
in the field of surrogate motherhood in international private law.
The author's definition of the concept of surrogacy as a medical service provided
to potential parents by a surrogate mother is proposed, given the lack of a clear
definition of this concept in the sources of international private law, with its subsequent
consolidation at the legislative level, which will regulate all legal aspects of the
institution of surrogate motherhood.
At the level of a separate section 1, the genesis of the legal regulation of the
institution of surrogate motherhood in international private law, the sources of
international private law and conflicting links are analyzed. Which, in turn, made it
possible to highlight the history of the development of legal regulation of surrogate
motherhood in international private law and to establish the presence or absence of legal
regulation of this type of reproductive technology by the national legislation of states
and to establish the pluralism of this legal regulation and the need for legislative
consolidation that would regulate gaps in the law and clearly established conflict
bindings.
Also, the above-mentioned legal regulation of the institution of surrogacy in
international private law was classified by distinguishing a number of states that allow
altruistic (non-commercial) surrogacy, that prohibit any type of surrogate motherhood,
that allow commercial surrogate motherhood, whose legislation does not regulate
surrogate motherhood. In order to conduct effective research for our dissertation work,
countries that allow surrogacy for foreigners and conflict of laws regulations are
identified.
It has been proven that when concluding a contract of surrogacy, the conflict of
law binding of the the law of the place of conclusion of the contract should be applied,
the specifics of which must be taken into account when concluding the relevant
contracts, because in some of them, legal responsibility for providing the services of a
surrogate mother is provided for.
In addition, it has been proven that the right to procreation through surrogacy, in
particular in the concept of transhumanism, is an expression of equal and free access to
assisted reproductive technologies, as enshrined in the Report of the International
Conference on Reproductive Human Rights.
It has been found that it is humane for people who have lost their reproductive
function for various reasons to have their genetically related children to turn to the latest
medical technologies and advances, including surrogacy.
At the level of a separate section 2, the legal status of subjects of the surrogate
motherhood institute in international private law has been researched and established. It
has been proven that the subjects of this type of reproductive technologies are potential
parents and surrogate mothers, as well as proposed copyright requirements for these
subjects.
Based on the analysis of the legal norms of international private law, the author's
definition is given, according to which a woman who, with the voluntary consent and
on the basis of a contract on surrogacy with potential parents, through the
implementation of an embryo or a fertilized egg based on the biological material of the
potential parents, provides the medical service of surrogacy the latter to exercise their
reproductive rights.
It has been proven that the surrogate mother's husband is not a participant in the
surrogate motherhood program and, accordingly, cannot be a party to this contract.
Thus, only a voluntary notarized written consent will be required from him for his wife
to undergo a surrogacy program as a surrogate mother.
The rights and their guarantees, the obligations of the subjects of legal relations in
the field of surrogate motherhood have been studied. It has been established that a
common guarantee for both the customer-parents and the surrogate mother is the
observance of confidentiality by the participants of the surrogate motherhood program
at all stages of its passage.
It has been proven that the surrogate mother's husband is not a participant in the
surrogacy program and, accordingly, cannot be a party to this agreement. Thus, only
voluntary written consent is required from his wife to undergo surrogacy as a surrogate
mother.
