The Regulatory Decree regarding the Gestational Surrogacy has been approved to establish the conditions and requirements for its implementation, lacking only the approval by the National Commission of Medically Assisted Procreation (CNPMA) of the standard Surrogacy contract. This will be a standard agreement that will serve as a guide, and therefore, clauses and amendments may be added, provided that they comply with the law.
From theory to practice, in a process that can take a maximum of 180 days, science has thus given an answer to exceptional cases of couples who are not able to conceive.
The process of approval of Surrogacy Contracts will be supervised by the CNPMA, and in this article we try to anticipate some of the difficulties that may arise in the drafting of the same.
The Regulatory Decree defines the essential points of the Surrogacy Contract. The contract must state the obligations of the surrogate regarding the medical guidelines inherent and indispensable to the monitoring of the pregnancy, the type and place of delivery. Another aspect that must be regulated, regarding the surrogate, is the possibility of refusal to perform an amniocentesis or to travel on certain means of transport in the third gestational trimester, and also the option to terminate the contract in the event of a number of failed attempts and on which terms this termination may operate.
In parallel with the agreement between the Intended Parents and the surrogate establishing all these guidelines and rules, it is important to bear in mind that the imposition of restrictions to the surrogate is not allowed, nor the imposition of norms that violate her rights, freedom and dignity. In fact, the simplest restriction, further than infringing the rights of the surrogate, could prove itself to be difficult to apply - what to do if the surrogate refuses to take vitamins? After all, one cannot force people to take medication or remedies... This type of practices should be discussed by the couple with the eventual Surrogate, before coming to terms on the Surrogacy, and we recommend that couples choose a Surrogate whose habits and behaviours they have knowledge of, since the adoption of behaviours or lifestyles cannot be enforced.
The terms and clauses which the CNPMA will accept regarding the revocation of consent, the contract and its consequences are all yet to be defined, being also one of the mandatory provisions of the contract. Which consequences can really be accepted for the breach of the surrogacy contract?
We believe that in this matter and until a final text with consensus between the participants is reached, the process of opinion forming and the access to information have a significant and crucial importance as the parties' do not have the right of withdrawal after the impregnation. The transparency of the decision must comprehend all the risks that this process entails.
In fact, once the insemination has taken place, there is no right of retraction on behalf of the Intended Parents: they cannot force the Surrogate to interrupt the pregnancy against her will and they cannot renounce the right and the obligation to be registered as parents of the child. As for the Surrogate, who cannot have any genetic connection with the foetus, she cannot regret and declare that she wants to stay with the child. However, it remains to be disclosed what will be the consequences admitted by CNPMA, if the Surrogate decides to breach the contract. What if the Surrogate after the insemination intends to end the pregnancy? Will it be allowed? Or, breaching effectively the contract, which measures will be accepted that are not prejudicial to the latter's rights and freedoms? The courts will respond.
It remains to be answered the serious question of whether or not to give single men and male couples the right to resort to the Gestational Surrogacy, while single women and female couples are allowed. Men do not fit with the clinical criteria required by law, which seems to us a serious form of discrimination, and which reinforces the restrictions on the reproductive rights of men. There is therefore an urgent need to put an end to this breach of the principle of equality by allowing men equal rights with women.
* Note: The Authors do not adopt a position concerning the Gestational Surrogacy deliberately.