A Difficult Turning Point in Family Law: The Current Developments on Surrogate Motherhood with a Comparative Law Perspective
Şafak Parlak BörüSurrogate motherhood has become one of the most interesting and complicated issues of family law in both domestic law and private international law. The verity of the ‘mater semper certa est’ principle of Roman law has started to feel the effects of the development of new reproduction techniques. The different national legal provisions and applications have become the reason for the rise of (international) surrogacy tourism. It can now be seen that the once rigid approach of European countries in this area has softened since the decisions of the ECHR in Mennesson and Labassee. The subject is partly regulated in Turkish law while the practice of surrogate motherhood is prohibited. In our study, we attempted to deal with the subject matter according to different aspects - in terms of comparative law and recent decisions of the ECHR. Thus, we wish to make a contribution to the discussion and potential legal framing and harmonization in Turkish law.
Aile Hukukunda Zor Bir Dönemeç: Karşılaştırmalı Hukuk Bakış Açısıyla Taşıyıcı Anneliğe İlişkin Güncel Gelişmeler
Şafak Parlak BörüTaşıyıcı annelik gerek devletlerin iç hukuklarında gerekse uluslararası hukuk çerçevesinde aile hukukunun en ilginç ve karmaşık konularından biri haline gelmiştir. Roma hukukundan günümüze gelen ‘mater semper certa est’ (‘Anne her zaman bellidir’) prensibinin genelgeçer kesinliği modern üreme tekniklerinin ilerlemesiyle birlikte sarsılmaya başlamıştır. Devletler arasındaki yasal düzenleme ve uygulama farklılıkları taşıyıcı annelik turizminin doğmasına sebep olmuştur. Avrupa ülkelerinde taşıyıcı anneliğe ilişkin katı tutumun özellikle AİHM’in Mennesson ve Labassee davalarında vermiş olduğu kararların ardından yumuşamaya başladığı görülmektedir. Türk hukukunda ise konunun kısmen ele alındığı ve uygulamanın yasak kabul edildiği görülmektedir. Çalışmamızda konuyu farklı yönleriyle, karşılaştırmalı hukuk düzenlemeleri ve AİHM kararları çerçevesinde ayrıntılı şekilde ele almaya çalıştık. Böylece dünyada konuya ilişkin güncel gelişmeler ışığında, Türk hukukunda konuya ilişkin bakış açısına ve yapılacak değerlendirmelere katkı sağlamayı diliyoruz.
Surrogate motherhood has become one of the most interesting and complicated issues of family law in domestic laws as well as in private international law. The wellaccepted certainty of the ‘mater semper certa est’ principle of Roman law has started to lose potency with the development of new reproduction techniques. The different national legal provisions and applications have become the reason for the rise of international surrogacy tourism. It has been observed that the once rigid approach of European countries in this matter has become softer following the decisions of the European Court of Human Rights (ECHR) in Mennesson and Labassee. The subject in Turkish law is partly regulated and the practice of surrogate motherhood is prohibited. In our study, we attempted to approach the subject from different perspectives in terms of comparative law and recent ECHR decisions. In this way, we wish to make a contribution to the discussion and potential legal framing and harmonization in Turkish law. Surrogate motherhood has recently turned into a global operation because couples who face legal prohibition of surrogacy in their own countries head towards those countries which allow the process. Nonetheless, this process does not function smoothly especially because of the associated legal and ethical problems. Moreover, the legal problems of transnational surrogate motherhood, issues such as the legal validity of the conditions of the surrogacy agreement, the parties to the agreement, the rights and obligations of the parties in case of breach of contract, the legal and ethical nature of the contract, and the parentage issues are the main topics for discussion. Cases regarding surrogate motherhood initially started to engage public attention in the 1980s. The legal cases ‘Baby Cotton’ (Britain) and ‘Baby M’ (USA) have had serious repercussions across the world and have brought forth the legal and ethical issues regarding the process. The current and famous international cases such as ‘Baby Donna’ (Belgium), ‘Baby Manji’ and ‘Balaz Twins’ (India), ‘Baby Gammy’ (Australia-Thailand) have followed these cases. National legislators are now faced with this new and interesting element in family law, confirming that the practice of surrogate motherhood is steadily increasing. In comparative law, countries may be divided into three categories according to their legal policies on surrogate motherhood: 1. Those countries known as ‘import countries’ in the doctrine because that they do not currently allow surrogate motherhood in their domestic law. Germany, Switzerland, France, Austria, Italy, Spain and Turkey are in this first category. 2. Those countries where no legal regulations regarding surrogate motherhood exist or where the process is allowed in domestic law under strict conditions and supervision provided that the willing couples are entitled to nationality or permanent residence e.g. Belgium, Holland, New Zealand, Brazil. 3. The third group is referred to as export countries, including certain states in the United States (e.g. California), Russia, Ukraine, Israel, India and Greece. These countries accept both transnational and domestic surrogacy. Those countries belonging to categories I. and II. have long refused parental authority for willing couples of babies who were already born in countries which allow surrogate motherhood based on the grounds of ‘contradiction to public policy’, ‘fraud against law’ or incompleteness of other requirements. Nonetheless, it is possible to say that the rigid approach of European countries in this area has softened since the EHCR decisions in Mennesson and Labassee case. In Turkey, there was no specific legal regulation (in terms of ‘code’) for a long time regarding having a child by assisted reproductive technologies and surrogate motherhood – although the legal aspect of the subject was partly regulated by a by-law. Evaluating the legislation of the foreign countries that have prohibited the surrogacy, it was truthfully criticized in the doctrine that such a legal prohibition of surrogate motherhood should have been set forward rather by the will of legislator, but not the administration. Finally, there have been amendments to Law 2238 on the Harvesting, Storage, Grafting, and Transplantation of Organs and Tissues, by Law 7151 on the Amendment of Certain Laws and Decree Laws enacted in Official Gazette 30616 dated 05.12.2018. Accordingly, surrogate motherhood is legally prohibited by power of these amendments. (Non-commercial) Surrogate motherhood should also be accepted as a legal possibility de lege ferenda and should be the subject of an extensive and detailed legal arrangement and supervision as it is the case in Israel, in case there is no other medical choice left. It is possible that surrogacy can come to be a useful alternative solution, provided that the arrangements aiming at the protection of the child and the parties to the application are carried out under strict supervision. As evidenced by the increasing number of cases of surrogate motherhood, disregarding what the science of medicine provides and, moreover, legal prohibition of its practice is not a long-term solution. Since the surrogate motherhood agreement is a private law contract, it will be more appropriate to allow the implementation of this application in the event that no one can be forced to become a party to the contract. Furthermore, the application is considered as a last resort when the usefulness of the application is taken into consideration and the other means are officially depleted. Hence, we believe that the legal arrangements should be made to facilitate the establishment of paternity with the willing father and mother. In the face of medical developments in reproductive methods, the silence or prohibition of the law will violate the rights of individual/families to have children and their rights to reproduction. We would like to express that surrogacy has been prohibited not just because of the ethical aspects of the subject matter, but also the legislator may probably have thought of avoiding the problems to be occurred in the practice.
