General Rules of the Laws of Georgia (Europe) in Terms of Surrogacy Regulations:
In Georgia (Europe), there is no specific separate law/statute regulating only assisted reproductive technologies (‘ART”) or either of its method including surrogacy. The following normative acts (some article of these acts) refer to the issues of surrogacy and ART in general:
- Law of Georgia (Europe) on Health Care adopted on 10.12.1997 (Articles 141, 143 and144);
- Law of Georgia (Europe) on Civil Acts, adopted on 20.12.2011 (Article 30);
- Law of Georgia (Europe) on the Legal Status of Foreigners and Persons with no Citizenship, adopted on March 05, 2014, in force from September 01, 2014 (Article 49 1 );
- Order of the Minister of Justice on the Establishment of the Rule on Registration of Civil Acts, adopted on January 01, 2012 (Article 16 and Article 19);
- Law of Georgia (Europe) on Patient Rights adopted on May 05, 2000 (Article 22);
- Joint Order of the Minister of Justice of Georgia (Europe) and of the Minister of Internal Affairs of Georgia (Europe) on the Establishment of Rule of the exit from Georgia of the Child born in Georgia as a result of In Vitro Fertilization (Surrogacy), adopted on April 11, 2016.
The basic regulations concerning surrogacy and ART, in general, are outlined in Article 141, 143 and 144 of the Law of Georgia (Europe) on Healthcare, specifically:
1. Article 141 of the Law of Georgia (Europe) on Healthcare determines the following:
141. “Fertilization with the donor’s sperm shall be allowed: a) due to infertility, if there is a risk of transmitting a genetic disease from the husband to the child, or for fertilization of a single woman if a written consent of the infertile couple or the single woman has been obtained. If a child is born, the infertile couple or the single woman shall be deemed as parents, with the responsibilities and authorities proceeding from this fact. The donor shall not have the right to be recognized as the father of the born child”.
The terms used in Article 141 are not quite clear, however, the wording of this article can be interpreted as allowing the use of donor sperm in the fertilization procedure (for example, insemination) provided that fertilization does not refer to in vitro fertilization with the surrogacy program. Such procedure shall be allowed both for the infertile couple and for a single woman provided that the patient signs the informed consent about such a procedure.
Article 143 of the Law of Georgia (Europe) on Healthcare refers to in Vitro fertilization including surrogacy and determines the following-
“143. 1. In vitro fertilization shall be allowed:
a) to treat infertility if there is a risk of transmitting a genetic disease from the wife or the husband to the child, using the gametes or embryo of the couple or a donor, if a written consent of the couple has been obtained;
b) if a woman does not have a uterus, by transferring the embryo obtained as a result of fertilization to the uterus of another woman (‘surrogate mother’) and growing it there; obtaining the written consent of the couple shall be obligatory.
2. If a child is born, the couple shall be deemed as parents, with the responsibilities and authorities proceeding from this fact; the donor or the ‘surrogate mother’ shall not have the right to be recognized as a parent of the born child”.
Article 144 of the Law of Georgia (Europe) on Healthcare refers to the allowance of the usage of frozen gametes and embryos for artificial fertilization and determines the following:
“144. It shall be possible to use male and female gametes or embryos that have been conserved by freezing for artificial fertilization. The time of conservation shall be determined according to the couples will, under the established procedure”.
As a result of the analyses of the regulations provided in the laws of Georgia (Europe), it may be concluded that In Vitro Fertilization may be performed in the following ways: In vitro fertilization with the use of the couples’ or donor’s gametes or embryos, fertilization with
the donor’s sperm, in vitro fertilization with the use of a surrogate mother and the use of frozen gametes or embryos during in vitro fertilization.
In Vitro Fertilization with Surrogacy:
Laws of Georgia (Europe) do not determine the term “Surrogacy”. In terms of the procedure referring to surrogacy, the law of Georgia (Europe) on Healthcare (Article 143) is quite laconic and incomplete in the light of legal accuracy and only determines that In Vitro Fertilization shall be allowed if a woman does not have a uterus, by transferring the embryo obtained as a result of fertilization to the uterus of another woman (‘surrogate mother’). According to this the wording for the surrogacy to be performed, apart from obtaining the written consent of the couple (potential parents) the law requires non-existence of the potential mother’s uterus as a pre-condition for the commencement of such a procedure. This is considered as a drawback of the law in practice interpreted as requiring the medically determined health state of the potential mother thus not having the ability to impregnate and bear the child, in other words, medically evidenced need for surrogacy.
Even though the law does not directly refer to the permitted forms of surrogacy, it is interpreted as allowing gestational surrogacy (where the surrogate mother is only a gestational carrier and does not provide her oocyte for fertilization) and prohibiting traditional surrogacy (where the surrogate mother has a genetic link to the child).
As for the forms of gestational surrogacy itself, as mentioned above, the law does not make any reference to it. However, it might be interpreted in the following manner: it is allowed to perform in vitro fertilization and embryo transfer procedure with the use of either the oocyte donor or sperm donor and the gamete of one of the potential parents and to transfer the received embryo to the surrogate mother’s uterus. In this case, the child born as a result of such a procedure will have a genetic connection only with one of the parents. Besides, the law does not directly require that the child born as a result of surrogacy should have a genetic connection with at least one of the parents neither it directly states such availability. However, such a possibility may be indirectly determined under the regulations set forth by the Order of the Minister of Justice on the Establishment of the Rule on Registration of Civil Acts, adopted on January 01, 2012 (Article Article 19) (hereinafter the “Rule of Registration of Civil Acts”). Article 19 of Rule of Registration of Civil Acts determines the rule of birth registration of the child born as a result of surrogacy arrangements and determines the required documents to be submitted to the Civil Registry for the issuance of a birth certificate showing the potential parents as legal parents of the child. Specifically, Article 19 determines that in addition to the document certifying the fact of in vitro fertilization issued by the medical institution upon the embryo implantation, the following shall be submitted to the Civil Registry:
The agreement certified by a notary and concluded before in vitro fertilization between the following parties:
- the woman delivering the baby and genetic parents; or
- the woman delivering the baby, genetic parent, person to be recorded as a parent of the child (who is not a genetic parent) and donor; or
- the woman delivering the baby, couple and donors.
The legal parents of the child born as a result of in vitro fertilization shall be considered:
- genetic parents;
- genetic parent and person to be recorded as a parent of the child;
Even though the Order refers to the procedure of the birth registration, in consideration of its provisions it can be concluded that even if both the oocyte and sperm donors have been involved in the procedure of in vitro fertilization and the received the embryo has been transferred to the surrogate mother (gestational carrier), the potential parents not having the genetic link to the child shall be considered the legal parents of the child (provided that all the documents are submitted to the registry in the form and manner as required).
For the potential parents to be recorded as legal parents of the child delivered by the surrogate mother the following requirements should be met:
1. In vitro fertilization and embryo transfer to the surrogate mother’s uterus shall be performed in a clinic and the document issued by the clinic shall certify the performance of such a procedure;
2. In Vitro fertilization may be performed either with the use of:
- potential parents’ gametes or
- gametes of one of the potential parents and a donor; or
- gametes of donors.
3. Surrogacy cannot be used by a single potential parent or same-sex couple. Potential parents must be a heterosexual couple. No evidence of registered marriage or another form of relationship between the couple is required;
4. No proof of the DNA test is required; the document issued by the clinic certifying the performance of the procedure is sufficient;
5. There are no requirements established for the surrogate mother or potential parents to be eligible for the application of surrogacy (e.g. age, surrogate mother’s marital status, consent of surrogate mother’s husband, etc). The only requirement established for the use of surrogacy is the medical need for surrogacy for potential mothers. No separate evidence is required to be submitted to the Civil Registry for the registration of the birth of a child. The document issued by the clinic certifying the performance of the procedure is sufficient.
6. Potential parents are required to conclude the agreement concerning surrogacy before in vitro fertilization and certify it with the notary. Significantly, the agreement cannot be certified by the notary after the embryo is transferred to the surrogate mother’s uterus. The violation of this term will lead to the negative decision of the Civil Registry refusing potential parents to be recorded as legal parents of the child delivered by the surrogate mother. Besides, the parties of such agreement should be:
- Potential parents and surrogate mother if no donor is involved in the procedure of in vitro fertilization;
- Potential parents, surrogate mother and the donor if the donor is involved in the procedure of in vitro fertilization;
- Potential parents, surrogate mothers, and donors if the donors are involved in the procedure of in vitro fertilization.
Since the Georgian legislation requires the above-indicated agreement to be notary certified, it means that the identity of every party of the agreement shall be revealed and cannot be maintained confidential. The parties of the agreement have to either appear at the notary and sign the agreement in the presence of the notary or the parties (either of them) may be represented by another person (s) based on valid notary certified power of attorney (if the power of attorney is issued outside Georgia (Europe), it shall be notary certified and apostilled).
7. Besides, the fact that the child is born as a result of surrogacy should be indicated in the medical reference issued by the maternity hospital where the child is born. Such reference is sent electronically by the maternity hospital to the Civil Registry within 5 business days from the birth of the child. The registration of the birth of the child is fulfilled by the Civil Registry upon the documents required by the legislation are filed by potential parents in the Registry but no later than 7 calendar days from the date the medical reference on the birth is submitted. It is noteworthy that if the documents are not submitted to the Registry within this indicated period, or insufficient documents are submitted, the Registry is authorized to refuse registration of potential parents as legal parents of the child. This decision of the Registry may then be either appeared in court or civil lawsuit might be filed in court claiming for the recognition of parental rights.
8. If the Registry refuses to register the potential parents as the legal parents of the child born as a result of surrogacy, Registry provides the relevant information to the Social Service and the latter shall determine the name and surname of the Child. In such a case, the birth certificate of the child is issued without indicating the parents of the child. The full custody of the child legally is granted to the Social Service and Social Service may decide to grant the temporary custody to potential parents while the dispute concerning the recognition of potential parents as legal parents of the child is finally settled. It should be underlined that the Georgian legislation prohibits any indication of a surrogate mother or/and the donor in the birth certificate of the child even in case of refusal to register potential parents as legal parents of the child. Moreover, the law directly determines that the surrogate mother and the donor are not entitled to claim parental rights over the child.
9. There are no references made to the form of surrogacy, in other words, there are no direct regulations whether commercial surrogacy is allowed or whether only altruistic surrogacy is permitted. Accordingly, there are no prohibitions concerning the payments to be made to surrogate mothers or other restrictions regarding the activities of intermediary agencies. As for the requirements of the Medical Institutions concerning the performance of in vitro fertilization, the medical institutions are required to obtain written informed consent from the patients before the commencement of such a procedure.
10. Besides, the child born as a result of the surrogacy arrangement in Georgia (Europe) cannot leave the country, if the birth certificate of the child does not determine both legal parents of the child even if the child has a foreign passport.