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Surrogate Motherhood: A challenge for the Cypriot standards!
Last Update: October, 2016

Undoubtedly, motherhood constitutes the most precious natural gift given prima facie to every woman. Nevertheless, not everybody has been blessed; on the contrary, a lot of couples are prevented from being able to give birth to their own child in the natural way due to medical problems or weaknesses of other kind. To this end, an innovative Bill, for the Cypriot standards, has been  approved and enacted into Law on the 15th of May 2015: the Law on the Application of Medically Assisted Human Reproduction of 2015 (Law 69(I)/2015) (hereinafter referred to as «the Law»). The said Law provides for various methods of medically assisted human reproduction, from which special interest is conferred to the method of surrogacy which is a relatively new concept and practice for the Cypriot standards.

Undoubtedly, the number of couples choosing the path of surrogacy in order to “fight” their weaknesses to give birth to their own child, has been increased significantly worldwide. In particular, surrogacy is a medically assisted method which contributes to the biological procreation of an infertile couple through another woman acting as the surrogate mother. In particular, Article 2 of the said Law defines surrogacy as the situation “where a woman carries and gives birth (pregnant) after the in vitro fertilization using foreign genetic material that belongs to the intended couple, which is unable to give birth to a child in the natural way for medical reasons, and embryo implantation into her uterus.” Basically, that woman acts as a surrogate mother since one or more eggs, fertilized outside of that woman’s body using genetic material from the couple intended to have a child, are implanted into her uterus. Essentially, in that case the “donors” are the natural parents of the child.

Alternatively, according to the Law, in case where the use of genetic material from either or both spouses is not possible, it is still possible to make use of the method of surrogacy using genetic material of third parties – donors. Of course, the identity of the donor(s) is not disclosed to the couple throughout the process. Accordingly, the identity of the couple as well as the identity of the child is not disclosed to the donors. However, the Law prima facie sets age limits for donors depending on their gender. In particular, “in case of sperm donation, the donor shall not have attained the age of 45 years, while for egg donation, the donor shall not have attained the age of 35 years.” Obviously, in the case of surrogate pregnancy using, wholly or partly, “foreign” donated genetic material, the child is not considered as biological child of the couple.

Until recently, due to the fact that there was a statutory void as regards the method of surrogate pregnancy, a lot of couples tended to choose to proceed with the medically assisted human reproduction method of surrogacy, either by going abroad to countries where surrogacy is/was permitted by law or by concluding a secret and private contract with a woman who was willing to act as a surrogate mother. Thereunder, they agreed that immediately after the birth of the child, the actual parents of the child, who have provided the generic material for the purpose of surrogate pregnancy, would submit an application for adoption to the Court, in order for the child to be officially recognized as a legitimate child of the “donors”.

In order for the Court to issue an adoption order, a brief and confidential procedure should (and shall) be followed. However, in this respect, some qualifications must be fulfilled:

  • The consent of the natural parents or guardian of the minor, the consent of the spouse/husband of the applicant if the later is married as well as the consent of the adoptee if he/she is of an age and state of mind to understand the effect of the adoption order.
  • The adoption shall safeguard the best interests of a child.
  • The adoptee shall reside and be placed under the care and supervision of the applicant(s) for a determined period of time before the issuance of the adoption order.
  • The applicant and/or any other person shall not receive and/or give and/or agree to receive or give any sum of money and/or remuneration of any other kind in return for the adoption.
  • The Social Welfare Department shall prepare a report indicating whether the applicant(s) is/are eligible to become adoptive parent(s).

Obviously, it may be considered as reasonable and essential for the method of surrogacy, through the use of genetic material retrieved from third-parties – donors, to be followed by an adoption procedure. Notwithstanding, the problem lies in the use of the method of surrogacy through the use of genetic material originally derived from the couple intended to have a child, in which case the persons intended to adopt the child are in fact its biological parents.

It is generally accepted that women after childbirth are in a highly vulnerable emotional and psychological state. This entails the potential risk that the surrogate mother, who gave her consent to hand over the child for adoption once it is born or has agreed to act as a “surrogate mother”, may decline to give the child for adoption. Hence, given the fact that the natural mother is allowed to reasonably withdraw her consent to hand over ′her′ child for adoption at any stage prior to the issuance of the adoption order, the couple intended to proceed with the adoption remains uncertain. Understandably, the problem is even more acute in cases where the adoption procedure is followed just for the child to be formally recognized as a legitimate child of its de facto biological parents. Apparently, once the the medically assisted human reproduction through the method of surrogate pregnancy has been approved, such problems are expected to cease. Besides, the legislative approval of surrogacy constitutes one of the main axes of the Law on the Application of Medically Assisted Human Reproduction. To be more precise, the said Law extensively refers to surrogacy purporting to strike a balance between the desire of the infertile couple to have a child and the interests of the surrogate mother.

Of course, in any case, we should bear in mind that the Law in question seeks to limit the possibility of uncontrolled and rampant use of the method of surrogate pregnancy and the medically assisted human reproduction, in general. At first, according to article 16 of the Law, which sets out the general principles governing the medically assisted human reproduction, medical assistance is only permitted in cases where giving birth to a child in the natural way is impossible or where there is an inherent risk of transmission to the child of a serious illness or disease. Furthermore, the Law provides for some qualifications in order for the Court to grant authorisation for the implantation of the fertilized eggs in the uterus of the surrogate mother:

  • The couple intending to have a child, through the method of surrogacy, must be deprived of doing so in the natural way due to medical problems or inherent weaknesses of other kind.
  • An application shall be submitted to the Council of Medically Assisted Human Reproduction (which is going to be established once the Bill has been enacted into law).
  • An originating application shall be submitted to the Court in order to obtain the relevant permission.
  • A written contract at no monetary consideration or remuneration of any other kind shall be concluded between the couple intended to have a child and the surrogate mother; of course, the prospective parents are obliged to undertake all the costs and/or expenses in relation to pregnancy.
  • The potential surrogate mother shall undergo a series of medical and psychological tests in order to determine her state of health and fitness to carry and give birth to a child.
  • Both the person or the couple intending to have a child and the prospective surrogate mother shall undergo a mental evaluation.
  • Neither the person / the couple intending to have a child and the prospective surrogate mother have been convicted of offenses referred to on the Prevention and Combating of Sexual Abuse, Sexual Exploitation of Children and Child Pornography Law.
  • The eggs that will be implanted in the uterus of the surrogate mother must not belong to the same, but come either from the woman who is interested to have the child or from a third person – donor.
  • Both the woman who wants to have the child and the woman who will carry and give birth to the child must have their permanent or usual (legal) residency in the Republic of Cyprus. Nevertheless, in exceptional cases, where it is impossible to find a woman, who has her permanent or usual residency in the Republic of Cyprus, willing to carry and give birth to a child, the Committee may grant its consent for the “use” of a foreign surrogate mother provided that the latter will stay at the Republic of Cyprus at least from the 28th week of pregnancy up to the birth of the child, unless this is prevented due to medical reasons evidenced by an official medical certificate.

However, it is worth to note that the commercial exploitation of the method of surrogacy is strictly prohibited. Identically, the advertising of the availability of a woman to act as a surrogate mother as well as the expression, in the same way, of the couple’s willingness to find a woman who is available to act as a surrogate mother are also forbidden under the Law 69(I)/2015. As in the case of adoption, consideration is in all respects illegal and thus forbidden. Moreover, according to the Law, it is noticeable that, as regards surrogacy, either the surrogate mother or the presumed mother, has the opportunity to dispute motherhood if it is proved that the child is in fact a natural successor of the surrogate mother.

Apparently, where the intended parents have the opportunity to have their own child, even through the method of surrogacy, the plurality of couples will choose to give their genetic material in order for the fertilization to be made and the fertilized eggs to be implanted in the uterus of the surrogate mother rather than proceed with an adoption. Besides, it is very difficult to find a child for adoption through private placement within the territory of the Republic of Cyprus due to the fact that Cypriots nearly never decide to surrender their children for adoption, unless there are special reasons for doing so. Consequently, those who are interested in adopting a child in the usual way shall proceed in collaboration with the Welfare Office in order to find a child from the various foreign organizations and institutions, with which Cyprus has concluded bilateral agreements, so as to fulfil the adoption proceedings properly and lawfully.

Ultimately, medically assisted human reproduction through the method of surrogate pregnancy is an equivocal issue which contradicts with ethics and morality. However, the morality is supplanted by the greatness of medical science that provides the opportunity to assist the human reproduction’s weaknesses. Admittedly, the medical assisted reproduction through surrogacy offers the chance to many couples that are unable for whatever inherent reason to give birth to their own child, to acquire their own biological child through a surrogate mother. Therefore, the ultimate objective of the government should not be the deprivation of infertile couples from having their biological children using medical assistance. Instead, the primary aim should be the controlled medical assistance for human reproduction in order to ensure the health and safety of those involved in the procedure and, at the same time, avoid any kind of commercial or financial exploitation of these methods for the achievement of distinct purposes.

Last update: 02/09/2016

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Publish Date: 06 November, 2014
Antria Aristodimou Antria is an Advocate – Legal Consultant. Antria was born in Limassol. She obtained her LL.B degree from the University of Cyprus in June 2013 and her LL.M in Maritime Law from the University of Southampton in December 2014. Antria joined our firm in July 2014 ...

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