Picture by Babygest (https://babygest.com/en/surrogate/)
Masaryk University in Brno, Czech Republic
As a result of the social development, the issue of the right to life is discussed very often also in connection with the freedom of choice and the right to self-determination. However, the topics like artificial insemination or surrogacy are very controversial and the legislation about them is in each country very different, is uncertain or is there not at all.
Surrogacy is a concept, which is not defined in the Czech legislation. However, according to the literature, surrogate motherhood is a concept of assisted reproduction, consisting of artificial insemination. This is a situation, where a third person is involved in the reproduction process – a woman, who is able and willing (for a fee or free of charge) to carry a child, to give a birth to him and then hand him over to the ordering couple.
Czech legislation does not have a legal regulation which would deal with she surrogacy motherhood or which would define it. Nevertheless, there are some provisions, which are related to this institute or which refer to it.
- The general provision is the Article 2 Paragraph 4 of the Constitution of the Czech Republic, which says that all citizens may do that, what is not prohibited by the law.
- In the Civil Code of the Czech Republic is the concept of the surrogate motherhood directly mentioned in the Section 804. Nevertheless, all it says about this institute is, that the legislation counts with its existence in the legal order.
- In the Section 775 of the Czech Civil Code is then stated that a mother is a woman who has given birth to a child.
However, the substitutive motherhood is with this provision inconsistent; if a mother was the woman, who has given a birth to a child, would the institute of surrogacy lose its sense because it is based on the opposite.
If we consider that in the process of surrogacy appear more women, will we find out that the legal status of these women has in the Czech legislation no regulation too. This situation is in contradiction with the principle “mater semper certa est“, as well as with the principle of legal certainty.
Conditions to legalization
As shown above, the legal status of surrogacy in Czech Republic is uncertain. The embedding of the institute of surrogate motherhood in the Czech legal order would for sure not be without problems.
In the first place it would be necessary to deal with its contradiction with the provision that a mother is a woman who has given birth to a child. As mentioned above, the problem is also the general signification of a mother; it is possible to distinguish the position of a woman
- as a biologic mother, who has a genetic bond to the child
- as a social mother, who raise the child
- as a legal mother, who is mother of the child from the legal point of view
In an ideal case is it just one person but in case of surrogacy it could be up to three women, which means complications in the legal signification as well as in terms of sociology, ethics, religion or medicine.
Despite the controversy of the institute of surrogate motherhood should be for its continuity defined the legal status of its subjects. Together should the legislation of the Czech Republic also set more specific borders, which would clarify the disputed areas at least from the legal point of view.