Liability Under the Surrogacy Agreement: Problems of Law Enforcement

Abstract

AbstractPurpose: The article is devoted to the problems of law enforcement in the sphere of liability of the parties under the surrogacy agreement, related to the uncoordinated and fragmented nature of legal regulation of the issue of surrogacy in modern Russian conditions.Design/methodology/approach: The article analyzes the legal framework governing the implementation of the surrogacy program in the Russian Federation. The legal nature of the surrogacy contract is described, including partially disclosed the scope of subjective rights and legal obligations of both the surrogate mother and the genetic parents, the violation of which gives rise to the corresponding liability.Findings: The main problems of law enforcement of the parties’ liability under the surrogacy agreement in the Russian Federationare identified. Due to insufficient legal regulation and existing legal gaps, conditions have actually been created that allow the possibility of violating the legal rights of a child born under the surrogate motherhood program, guaranteed by the legislator. Along with this, the issue of violation of the surrogate mother’s obligations to transfer the child to potential parents is not resolved due to paragraph 4 of article 51 of the Family code of the Russian Federation, the provisions of which cast doubt on the fact of achieving the main goal of surrogacy, which is to overcome infertility of genetic parents. In the legislation there no provision for the possibility of termination of the contract in case of gross violations of contractual obligations by the parties, and there is no provision for liability of the parties in case of breaching surrogancy confidentiality.Originality/value: In the Russian Federation, only gestational surrogacy is used, based on a commercial basis, which is implemented by drawing up a contract on surrogacy. The authors propose the main ways to solve the legal problems of contractual obligations in the field of surrogacy and the problems of law enforcement of the corresponding liability.KeywordsSurrogacy contractGenetic parentsSurrogate motherJEL CodeК 36