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Since its foundation in 1996 the law office “INLAT PLUS” has been one of the most active and leading companies providing legal service in Latvia. The variety of the qualified legal services provided by the company will meet the most demanding requirements of its clients (legal and physical persons).

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Surrogate Motherhood in Latvia

11.11.2011
Children are a blessing. Not all the couples, however, can have a child of their own. Nowadays infertility has become a big problem for many couples. Owing to modern medical technologies this problem can be solved quickly and effectively. Alongside with artificial fertilization another option for infertile couples – surrogate motherhood - is gaining more and more popularity. The idea of the surrogate motherhood is that a woman bears and gives birth to a child for a person or a couple – genetic parents - who then take legal custody of the child. These genetic parents shall be considered to be legitimate parents of such a child despite the fact that it was carried and born by a surrogate mother.
 Although surrogate motherhood for some people can turn out to be the only option to have their own biological child the society’s attitude towards surrogacy is still very controversial. Society has divided into two opposite camps – there are those who actively support surrogate motherhood and those who are categorically against it. Latvia is one of the few countries in the world where there are good perspectives for applying and developing the phenomenon of surrogate motherhood.
 
The notion “surrogate motherhood” became commonly used in Latvia starting from the 31st January 2002 when Sexual and Reproductive Health Law was adopted. According to this law, artificial fertilization (including surrogate motherhood) was officially allowed to fight against infertility. Since then special clinics specializing in infertility treatment have accepted an enormous number of patients, many of whom are foreigners, and this number is constantly growing. Highly qualified doctors and medical staff are eager to provide their patients with a whole range of services regarding pregnancy care and child birth.
Despite all that, the idea of surrogate motherhood is still considered to be extremely private in the society, therefore all the parties involved into this process do their best to observe strict confidentiality. It is quite understandable since the very process of surrogate motherhood is highly intimate and includes only a very narrow circle of people. Usually couples turn to their female friends or relatives with such a delicate request. However there is a considerable number of “stranger” females willing to carry a child. In most cases women do that in order to earn some money, sometimes – just to help those who cannot give birth to their own biological child. 
In this regard it becomes quite obvious that legislation must intervene into this social relationship since it involves children’s rights, their legal status and healthy development. Legal assistance is necessary both to formalize contractual relationship and to resolve disputes that might arise between the parties.
Surrogate motherhood is a complicated phenomenon, during its course a lot of different situations, issues and problems arise regarding the legal status of the persons involved, as well as the fact of determining parental custody and parental rights.
 
According to the applicable legislation, surrogate motherhood is carried out upon the request of a heterosexual couple or a woman on the basis of a written application submitted to the medical treatment institution by that heterosexual couple or the woman. Surrogate motherhood can be recommended by the gynaecologist (birth specialist) having assessed the reasons of infertility. The agreement on surrogate motherhood is concluded in writing between the medical treatment institution and a heterosexual couple or a woman. If the agreement is concluded with a heterosexual couple it must be signed by both spouses.
 
To avoid possible future risks it is recommended that the agreement should also be signed by the woman who has agreed to become a surrogate mother.
 
Legislation specifies a number of compulsory requirements that an agreement on surrogate motherhood must contain:
  • rights of the applicants (including the right to access to their own data) and their obligations;
  • rights and obligations of the medical treatment institution (including confidentiality issues);
  • written confirmation of the clarification rendered by the gynaecologist (birth specialist) prior to the beginning of the artificial fertilization procedure regarding the idea of the medical fertilization and possible complications, as well as possible genetic and medical complications the child may have;
  • register (name and address) that will contain personal data of the applicants (including sensitive data);
  • purpose and motivation of the transfer of personal data (including sensitive data);
  • type, amount and expiry date of the personal data (including sensitive data), as well as a possibility to transfer this data to the third parties.
     
As far as other provisions of the agreement are concerned the parties are entitled to agree whether to include particular clauses. It would be appropriate to include the terms of payment of living expenses the surrogate mother will have, as well as possible actions against the surrogate mother in the event she refuses to give the child she has given birth to the couple having signed the agreement with her, as well as possible actions against the couple if it refuses to accept the baby. It is also recommended to include a separate section regarding the duties and obligations of the surrogate mother, such as: the obligation to register in the medical treatment institution at the early stage of the pregnancy; to visit her gynaecologist on the regular basis and to observe all his orders; take good care of her health; inform other parties of the agreement about the course of her pregnancy.
The cost of medical treatment institution’s services shall be negotiated upon singing of the agreement, however the issue regarding compensation to be paid to a surrogate mother for carrying and giving birth of a child is quite disputable considering that Sexual and reproductive health law contains a restriction to use the gametes of the donor or the embryo for commercial purposes. Without a doubt the process of pregnancy requires good health, exertion and significant material expenses from the mother, including nutrition, special clothes, hygiene products, special care etc. Keeping in mind that an agreement on surrogate motherhood might be compared to a services agreement without compensation, the said expenses should be covered by the party in interest of surrogate mother’s services. Apart from actual expenses incurred by a surrogate mother, her services shall be remunerated in the appropriate manner as well. Reimbursement of expenses incurred during the process of pregnancy as well as remuneration for the provided services shall be the subject-matter of the agreement between ordering party and surrogate mother.
 
The services of surrogate mothers are not underestimated though. Surrogate mothers from Latvia and the rest of the world receive certain remuneration for the involvement in surrogate motherhood program.
 
Therefore an appropriate statutory regulation is required for the new type of legal relations being established as a result of surrogate motherhood. The accuracy of documentation necessary for establishing contractual relations between all parties involved in the surrogate motherhood program becomes vitally important. In case of disputes an agreement is the most important document considering that medical intervention as surrogate motherhood involves high level of professional risk and is often followed by harmful effect in relation to both the surrogate mother (to a far greater degree) and the ordering party (to a lesser degree). Such distinctions of surrogate motherhood shall be reflected in the agreement for purposes of providing necessary legal protection to the ordering party and the provider of the medical service.
 
Though many issues regarding surrogate motherhood remain unaddressed in the regulatory enactments and regardless of the conflicting opinions within society, we may not deny the existence of surrogate motherhood in Latvia, which makes possible a birth of a child so eagerly awaited by those who have turned for help to a surrogate mother.