Replacement motherhood and its criminal consequences

On 20 November 2019 the Act of 16 October 2019 amending the Act – Criminal Code and Act – Civil Procedure Code[1], in which the institution of the so-called surrogate mother in Poland was sanctioned, the aim of which, as the legislator points out, is to satisfy the law-abiding or circumvent the adoption of children.

In the opinion of the legislator, the current legal arrangements do not adequately protect children, and it is therefore necessary to introduce rules to regulate such behaviour, and the question of the legality of maternity contracts was not standardised.

The current legal framework only regulates the organisation of large-scale illegal adoptions (Article 211a Act on 6 June 1997 – Criminal Code, hereinafter: k.k.)[2].

However, it should be noted that the Act does not penalise through this provision trade, trade, commercial transactions involving a child, but only the action of the offender against the provisions on adoption.

1. Replacement motherhood – definition, types

A surrogate motherhood is called a surrogate. This is the type of civil law agreement between the foster mother and future parents under which the foster mother undertakes to bear a pregnancy, and after the baby is born she transfers rights to the future parents.

Replacement motherhood violates a common principle known from Roman law: “Mater semper certa est; pater est quem nuptiae demonstrators – Mother is always sure; the father is the one the marriage points to.” This is a rule that has long been the essence of determining the origin of the child from the woman who gave birth.

Surogacy gives us the opportunity to view this standard differently, as the child may be related to the genetic mother and to the woman who gave birth to it.

Distinguishing two types of surrogate motherhood. first This is a full (other than gesture) motherhood, which means that future parents undertake to provide the surrogate of the previously obtained embryo with an in vitro method.

This kind of motherhood only generates a biological bond between a mother and a child, which is due to the fact of pregnancy and childbirth. second the genus is a partial replacement motherhood (or traditional motherhood) which is that the surrogate mother is also an egg donor.

This kind of foster motherhood creates a genetic bond between a mother and a child.

In addition, we can divide the surrogacy into a commercial surrogate, that is, one in which the obligations arising from the contract are performed (pregnancy, childbirth, transfer of the child to future parents) for remuneration, and altruistic surrogacy, where the surrogate mother receives compensation in return for fulfilling the obligations under the contract in the form of medical costs and costs (charges) related to pregnancy. At this point, it should be pointed out that there is a problem of legal regulation of surrogate motherhood in many countries, particularly as regards the determination of the legality of such contracts, or the assessment of the civil status of a child from surrogacy.

2. Replacement motherhood in international law

The legal instrument governing the issue of surrogate motherhood is the draft Recommendation of the Council of Europe with 10 January 1989 „Artificial Human Procreation (Principles set out in the report of the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences – CAHBI)[3].

This project includes the definition of a surrogate mother (chapter I, sub-section e), which is “a person who carries a child to another person and who, before becoming pregnant, agreed that the child would be transferred to another person after birth”.

In the above recommendation, it was pointed out explicitly that the surrogate mother could not obtain any material benefits from the operation (Chapter IV, point 4, point (e)).

Another legal act that we can refer to as foster motherhood is the Convention on Human Rights and Biomedicine with 4 April 1997[4], of Article 21 It states: ‘The human body and its parts cannot, in themselves, be sources of profit’. Furthermore, it should be borne in mind that the Convention for the Protection of Children and Cooperation in the Field of International Adoption of 29 May 1993[5] a provision was made: “International adoptions will be made in the best interests of the child and respecting his fundamental rights, as well as preventing the abduction and sale of children and their trafficking”; this statement has been reiterated under Article 1, Point b.

Under Article 4, point c, the third sub-item, numbered 3, states: ‘The adoption to which the provisions of the Convention apply may only take place if the competent authorities of the country of origin have satisfied themselves that: consent has not been obtained for payment or remuneration of any other kind and has not been revoked. On the other hand, Article 32 The above-mentioned Convention expressly prohibits: "No one may obtain an improper asset or other advantage from an action concerning international adoption".

In turn in the Convention on the Rights of the Child with 20 November 1989[6], under Article 21 relating to the adoption system, it was indicated: ‘States Parties recognising and/or allowing the adoption system shall ensure that the best interests of the child are the ultimate aim, and shall take all appropriate steps to ensure that, in the case of adoption to another country, the persons involved in it do not receive undue financial benefits for this reason’.

These legislation allowed countries to freely shape their internal law and regulate the question of replacement motherhood. Currently, you can highlight:

• 1. Countries providing for a total ban on maternity contracts: Portugal, Italy, Spain, France, Switzerland, legislation of certain states of the USA (Washington, Arizona, Michigan, Indiana) and from 20 November 2019 – Poland;
• 2. States that do not directly address the problem of replacement motherhood, but accept its total unacceptableness, e.g. 20 November 2019 – Poland;
• 3. States which do not directly address the problem of replacement motherhood but accept its admissibility, for example Belgium;
• 4. States providing for a ban on commercial surrogacy, allowing altruistic surrogacy, such as the United Kingdom and Australia, South Africa;
• 5. Countries that allow commercial surrogacy, e.g. Ukraine, Russia, India and some US states (California, Texas)[7].

It should be pointed out that the European Court of Human Rights has spoken very often in its judgments on surrogacy. Countries where the surrogate is not directly permitted do not consent to the legalisation of child birth certificates from foster motherhood. Therefore, when parents seek legalisation of the origin of the child, they complain to the European Court of Human Rights, citing Article 8 European Convention on the Protection of Family Life[8].

An important ruling of the European Court of Human Rights is Mennesson’s complaint against France[9].

In this case, the complainants were husband and wife of Dominique and Sylvie Mennesson and their children (twins) with American nationality, born In 2000 The parties have benefited from the replacement maternity procedure (gestational surrogate) in the United States due to the infertility of Mrs Mennesson. The U.S.

court found Mennesson to be twin parents. Mr Mennesson sought to register twins in French civil status records, but unsuccessfully. The French authorities suspected that the couple had benefited from replacement motherhood.

The lawsuits that the marriage filed against decisions refusing registration in civil law were dismissed at the last instance by the Court of Cassation 6 April 2011

The Cassation Court argued that entering entries in the register would mean legalising replacement motherhood which is incompatible with the French Civil Code. The Court also held that there was no breach of the right to respect for private and family life, since the children had already lived closely with the applicants 10 years.

In response to the above ruling, the Mennesson spouses brought an action before the European Court of Human Rights in which they alleged the infringement Article 8 ECHR.

In the above case, the Court noted in particular the lack of consent on the legality of replacement motherhood and the lack of legal recognition of the relationship between parents ordering and children legally recognised by courts abroad.

It should be stressed that there was a relationship between foster children and parents. In the present case, the Court considered the action lodged in two aspects first – concerning the right of applicants to respect their family life and second – the right of children to respect their private life.

In the first The Court found that a proper balance had been struck between the interests of the applicants and the interests of the State in respect of the right to respect for family life.

In the second The Court pointed out that respect for private life requires that everyone should have the opportunity to establish details of their identity as a human being, which also includes their relation.

When Article 8 The ECHR does not guarantee the right to a specific nationality, this does not mean that it is not part of the identity of the individual. The Court pointed out that although the biological father was French, the children were in a situation of deep uncertainty about the possibility of being considered French citizens.

Due to the importance of biological affinity as an element of identity, it cannot be considered compatible with the interests of the child to deprive him of such a legal relationship when the actual biological situation has been established and the child and the parent have claimed its full recognition.

Not only was the relationship between children and their biological father not granted, but it would not be possible to obtain it by e.g. recognition of paternity or adoption or to establish paternity because of the barrage case law adopted by the Court of Cassation on these matters.

The Court found that given the consequences of this restriction by thus creating an obstacle to the recognition, as well as the determination in national law, of the relationship between twins and their biological father, the State went beyond the limits of the allowed freedom.

The Court therefore concluded that the right of children to respect their private life had been infringed by refusing registration. However, there was no infringement Article 8 The Convention in connection with the right of applicants to respect their family life.

On the other hand, the right of children to respect their private life has been violated[10].

The situation is different when the genetic bond does not exist. The ruling of Paradiso and Campanelli against Italy is very important in this respect[11]. Donatina Paradiso and Giovanni Campanelli were married. They decided to be a surrogate mother after failed in vitro fertilization attempts.

They therefore concluded a replacement motherhood agreement in Russia. The baby was born In February 2011 Moscow. The spouses were registered as parents of the child under Russian law, however, the birth certificate did not indicate that the child was born by foster motherhood.

The Italian consulate in Moscow issued documents enabling the applicant to return to Italy with his child.

A few days after the arrival of Campanelli tried to register them in the municipality of Colletorto, but without success, as the Italian Consulate in Moscow informed the Court of Minorities in Campobasso, the Ministry of Foreign Affairs and the municipality of Collerorto that the file on this child contained false data.

As regards the above, Campanelli's spouses have been accused of ‘applicable false civil status data’, of the use of false documents and of violating the Adoption Act because they have brought a child in violation of Italian and international law and against conditions held since December 2006 approval to adopt, which ruled out the adoption of such a small child.

On the same day, the prosecutor at the juvenile court in Campobasso requested the initiation of a procedure for the consent of the child to be admitted because it was abandoned under Italian law.

The DNA test we ran revealed that Campanelli was not the child's biological father. The semen from other sources was used in fertilization. As a result 20 October 2011 The court decided that the child should be immediately removed from the applicants and taken into public custody.

The reason was the lack of biological ties between them and the doubts about the educational and emotional abilities of the complainants because they acted unlawfully. The spouses therefore decided to bring an action before the European Court of Human Rights because of the infringement Article 8 ECHR.

In this case, the Court made a clear statement stating: "Article 8 does not guarantee the right to establish a family or the right to adopt. The right to respect “family life” does not protect the desire to establish a family; it assumes its existence, or at least the minimum potential relationship, which may develop, e.g.

between a child born outside of marriage and his natural father, or a relationship born out of an authentic marriage, even if the family life has not yet been fully created, the relationship between the father and his legitimate child, even if it turns out that after years he did not have a biological relationship or a relationship born out of lawful and authentic adoption.”[12].

Consequently, the Court considered that the conditions for accepting the conclusion that there was a genuine family life were not fulfilled. The Court therefore ruled that he was not in the case. Consequently, the complaint was dismissed. This is an important ruling from the point of view of increasingly contracted maternity contracts.

In that judgment, the Court indicated that Article 8 The ECHR does not guarantee the right to establish a family or to adopt, but refers to respect for an existing family.

The Court concluded that family life did not arise in the above case, as there was no genetic relationship and parents and children did not spend a long period together.

It should be pointed out that the legal effects resulting from the conclusion of a surrogacy agreement under international law cannot always be fulfilled, since this depends on many factors. First of all, this will depend on the acceptance by national law of the existence of a genetic bond with a child or the time spent with a child, which will cause us to have contact with a "actual family".

3. Replacement motherhood in Polish criminal law

By the date of entry into force of the amendments 16 October 2019 Poland was one of the countries that did not regulate the admissibility of replacement maternity contracts and their inadmissibility. However, it should be assumed that replacement motherhood was not socially acceptable.

The door for the application of replacement maternity institutions was the regulation with Article 1191a Act on 25 February 1964 – family and caring code[13] (hereafter as k.r.i.o.) – the adoption of the so-called adoption with an indication of when a person may be a spouse one My parents.

As a result of the adoption, the foster mother lost her parental power over the minor child.

The only provision in the Polish legal order relating directly to the adoption of children is Article 211a k.k., which provides for the organisation of adoption against the provisions of the Act. In this provision, “the main object of protection is undoubtedly the welfare of the child.

It also appears that public order is involved in the need to comply with certain procedures (that is why the original offence was included in Chapter XXXII "Fences Against Public Order"). “Child” means persons who have not completed 18. years of age’[14].

However, this provision regulates the issue of the organisation of adoption "in principle, as a complex (conglomerate) of individual behaviours, which are assessed together in the process of "organising adoption"[15].

The organisation of adoption should be understood as taking any action, as long as they are intended to carry out adoption, e.g. any formalities related to adoption, finding the appropriate adoption child, seeking potential adoption parents[16]. This provision did not apply to foster mothers or adoptive parents.

Therefore, it was impossible to draw consequences for them.

In view of the above, the legislator decided to introduce rules into the Code, which would allow not only the persons involved in the organisation of adoption to be held accountable. In the Amending Act from 16 October 2019 the institution of the so-called surrogate mother has been defined.

A provision has been introduced in the Criminal Code which provides that it is subject to imprisonment from 3 months to years 5 the person entitled to parental authority over the child consents to the adoption of the child by another person:

1. In order to obtain a property or personal benefit, by keeping this objective from the court in the adoption procedure and in the event that the parent has given his consent to the adoption of the child in the future without indicating to the applicant, a declaration of that consent shall be given to the receiving court;
2. With the exception of the adoption procedure and the person who agrees to adopt the child under the conditions referred to above.

Furthermore, the legislator introduced into the code a definition of adoption, which according to the law involves the acquisition of parental power over the child by a person other than the one from which the child originates (added provision 115 section 22a k.k.).

The legislator stressed that, under criminal law, "adopted" was not defined in any way, so he considered it necessary to introduce this term into the Polish legal order.

According to the legislator, ‘adopted’ is intended to cover all situations where the action results in the acquisition of parental power over the child, regardless of the legal instruments used for this purpose (e.g. recognition of the child, obtaining a decision of the court of adoption).

It should be pointed out that so far under Article 211 k.k. the behaviour of organising adoptions contrary to the provisions of the Act has been compromised. This provision did not allow other persons who participated in the adoption process to be brought to justice.

The explanatory memorandum of the bill argued that there is a real need to bring to justice those whose behaviours consist in agreeing to obtain parental power over the child by a person who is not his biological parent.

It should be borne in mind that the Act penalises both the giving of the child for adoption by a person who has parental power over him (Article 211a(2) k.k.), as well as the adoption of the child for adoption by the person from whom the child does not come, who is not his biological parent (Article 211a(2) k.k.).

According to the will of the legislator, a crime with Article 211a(2) k.k. is individual (may be committed only by a person who has parental authority over the child) as opposed to a specific crime under Article 211a(3) k. which is a common crime.

It should be stressed that this offence would be committed as soon as the consent to adopt the child under certain conditions under Article 211a(2) k., i.e. in order to obtain a property or personal benefit, without informing the court of judgment in the case of adoption or without the procedure.

The legislator points out that for the existence of the aforementioned crime it does not matter whether adoption was carried out or even attempted.

It would only be important that, by agreeing to adopt the child, the person giving or accepting the child would include his or her awareness that the adoption of the child would result in the giving or receiving of a property or personal benefit and the concealing of that fact before the court in the adoption procedure or without the adoption procedure (intentional offence).

Subsequent adoption under these conditions would only be evidence of the perpetrator's prior criminal intent.

The legislator points out that such a treatment of the type of prohibited act, where emphasis is placed on the moment of consent to adoption, would allow for penalisation of, for example, parents who, for this purpose, agree to adopt their child in the future without the indication of the person to whom the[17] Or the so-called foster mother.

From the point of view of the exhaustion of the characteristics of such a prohibited act, it is also not important whether the parties have reached an agreement (consistent statements of will) on the adoption of the child, but only whether the consent of such content has been expressed by the perpetrator.

The legislator indicated two the types of adoption which should be considered socially harmful and thus illegal in the legal sense of criminal law. first is the use of the established procedure for the acquisition of parental power by a person who is not his biological parent.

The legislator has decidedly negatively assessed the action aimed at adopting the child in order to achieve an asset or personal benefit.

In addition, it stresses that in practice exceptional situations may arise in which action to achieve an asset or personal benefit should not put an end to the opportunity of those seeking to adopt a child.

This is in a situation where a surrogate mother receives small amounts of maintenance during the half-life or transfers items to serve the child, such as diapers or trolleys.

As already pointed out in the aforementioned Convention on the Protection of Children and Cooperation in the Field of International Adoption: "No one can obtain an improper asset or other benefit from an action on international adoption". That is why this amendment puts the emphasis on inappropriate assets (of a commercial nature).

From the point of view of the possible social harmfulness of such behaviour, it is necessary to establish the purpose of the adoption parents' action by the court in the matter of adoption.

This court, knowing all the circumstances of the adoption of the advantage, will be able to assess whether and how they affect the predisposition of the person wishing to provide the child.

second the type of illegal adoption is to do so without the adoption procedure, i.e. when future adoptive parents use other legal institutions to adopt a child, e.g. the fictitious recognition of a child (by a non-biological parent) or the waiver of parental rights by a surrogate mother to adopt another person.

In this case, it is not necessary for the perpetrator to act in order to obtain an asset or personal benefit.

In such a situation, it is punishable to circumvent the law in the form of failure to carry out the procedure provided for in order to resolve the compliance of another person with the welfare of the child and the control of the authorities of the State with that procedure.

With regard to the above, it should be pointed out that the legislator made a clear statement on the legality of the conclusion of replacement maternity contracts.

4. Summary

The foster motherhood is causing a lot of controversy around the world. There are many countries that allow them to exist, as well as those that prohibit them, or have no rules on their legality. By the date of the entry into force of the law amending Poland, it did not in any way regulate this issue.

In the bill of 16 October 2019 The legislator explicitly indicated that those who conclude a replacement motherhood agreement (both future adoptive parents and foster mother) would be subject to criminal liability.

This is not a good solution primarily from the point of view of parents who are not able to have their own offspring due to their health. It should be agreed that such agreements should be controlled by the State, but certainly not penalised.

Where all the conditions arising from existing legal acts are fulfilled, the conclusion of replacement maternity contracts should be fully legal.

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