Restrictive concept of surrogacy in the draft text of the Civil Code of Serbia

Abstract

The working draft of the Civil Code of Serbia, which was published in June 2015, includes model-provisions on surrogate motherhood, which is, at present, expressly prohibited by law. The paper gives a survey of the proposed provisions and examines particularly those that define which persons can conclude a contract on surrogacy. By limiting this right to persons holding the nationality of Serbia, or to these nationals and persons residing in the territory of Serbia for at least three (five) years the legislator wish to avoid reproductive tourism. Surrogate mothering with cross-border effects gives rise to complicated legal problems as regards the definition and recognition of legal parentage of the intended parents both in the countries in which the surrogate mother gives birth to the child, as well as in countries in which the intended parents wish to live with their child. The restrictive concept which retains surrogate mothering within the borders of the domestic state and between domestic nationals disables outgoing cases of surrogate motherhood, but it is not quite true for persons who are not citizens of Serbia, but living on its territory. For these reasons the paper critically examines these limitations in the proposals, and indicates that the incoming cases of surrogate motherhood cannot be prevented due to the free movement of people. The paper also provides analysis of the legal issues of the incoming cases of surrogate motherhood, and suggests solution for them if in the future Civil Code the proposed ipso jure legal parenthood of intended parents will be adopted. With ipso jure legal parenthood of a child who is born to a surrogate mother abroad there is no need to restrict surrogacy cases to nationals of Serbia or to foreigners domiciled in Serbia for three (five) years minimum.