Wednesday, July 4, 2018

Surrogacy Law and Practice in Russia, Philippines, Indonesia and South Korea

In May I presented a paper I wrote (with valuable research assistance by my associate Dharma Gan) at the American Bar Association Family Law Section's conference in Nashville.

Here is the paper:


 
AMERICAN BAR ASSOCIATION FAMILY LAW SECTION SPRING CONFERENCE NASHVILLE MAY 2018 – SURROGACY LAW AND PRACTICE IN RUSSIA, PHILIPPINES, INDONESIA AND SOUTH KOREA

By Stephen Page[1] and Dharma Gan[2]

I wish to acknowledge the invaluable assistance I have received in the preparation of this paper by my associate, Mr Dharma Gan.

Russia

I want to set out a practical case that I had in 2016 highlighting the law and practice of surrogacy in Russia.

In 2016 new clients contacted me who were a heterosexual married couple with dual Russian/Australian citizenship.  They had tried IVF unsuccessfully in Australia.  They then tried IVF in Russia.  They were of the view that standards for IVF were high in Russia.  In their words:

“The pregnancy was by way of surrogacy.  In Russia the expectation is that a married couple will have children.  For years we received constant pressure from family members to have children.  There is great shame in Russia in disclosing that we had undertaken IVF, let alone that we had undertaken surrogacy and, even worse, that we had no genetic relationship with our child.  It is seen by family members that there is something wrong with our bodies if we can’t have children naturally.  As a result, we have not told other family members of how our child was conceived.

During the course of the pregnancy of the surrogate, (the intended mother) wore a baby bump to appear as though she was pregnant.  This was done out of embarrassment and concern, especially for the child that our family members were to learn that there had been a surrogacy (let alone egg or sperm donation) then the child would be cut off as a member of family.

Following our child’s birth, we told the intended mother’s stepmother and stepsister that our child was conceived by IVF.  We did not mention to them about egg and sperm donation.  They immediately made comments to the effect that our child was not a real member of the family.  This was extremely distressing and as a result of which we have cut off all contact from them for the benefit of our child.  They were excluded from attending the ceremony recognising us as parents under Russian law.

We have not told the paternal grandmother or members of her family that we have undertaken IVF let alone egg and sperm donation because we are concerned that a similar reaction would come from that side of the family, and as a result of which our daughter would not have any extended family members as she would to all intends and purposes be outcast and disowned.  As far as members of the family are concerned, we have undertaken IVF and the intended mother has given birth as a result.”

The problem for my clients was that they had not obtained Australian legal advice, were told that when the child was born they were the parents as a matter of Russian law, and both out of shame and on the basis of that advice, when they were asked by the Australian Embassy in Moscow to state whether they had undertaken surrogacy, their answer was no.

Not surprisingly, that got them into considerable difficulty.

They then contacted me.

I was pleasantly surprised at the quality of the work that was undertaken by the agency in St Petersburg.  All of the documentation was in Russian, which posed no difficulty for my clients - as they were Russian immigrants.  Whilst I have seen plenty of side by side local language/English gestational carrier agreements in other parts of the world, I haven’t seen that in Russia.  If that is unable to occur, then that places the intended parents at some considerable potential disadvantage. 

At no time did my clients enter into a gestational carrier agreement.  The document checklist was:

·         An agency agreement with a surrogacy agency.  The clauses of that agreement included:

o   A woman voluntarily agreed to give birth to a child who is not biologically hers.

o   The agency will find a surrogate and make sure that all medical services are undertaken.

o   That the agency will, on our behalf, provide monthly financial support for the surrogate.

o   That the agency will provide medical services for the surrogate.

o   That the agency will provide clothing for the surrogate.

o   Psychological counselling and support will be provided to the surrogate.

o   The agency will be assisting the intended parents to receive the birth certificate and the surrogate mother consents to the registration of birth in the names of the intended parents.

·         An ART agreement with an IVF clinic.  They also signed 4 consent forms, to comply with Article 51(4) of the Russian Family Code.

·         An Assisted Reproduction Technologies Consent Form.

·         A consent to the use of donor oocytes.

·         A donor sperm consent form.

·         A surrogacy consent form.

·         A PGD agreement with the clinic.

·         The surrogate has to confirm in writing, in accordance with the Russian Family Code that the intended parents were the parents of the child once born.

·         The surrogate has to consent to the child being registered as the child of the intended parents.

·         Surrogacy could only be proceeded with once there was a written medical recommendation to the effect that the intended mother was unable to carry the child to term.

In accordance with the Russian Family Code, the surrogate confirmed in writing that the intended parents would be the parents of the child once born and then consented to register the child as the child of the intended parents. 

Russian Law

Surrogacy is regulated in Russia to three pieces of legislation:

·         Healthcare Act 5487/1.

·         Order 67 Ministry of Health Care of Russian Federation on Application ART30, August 2012 No. 107n.

·         Russian Family Code 1995.

E.1 Healthcare Act

Article 35 provides:

            “Each adult female of childbearing age has the right to artificial insemination and embryo implantation.  Artificial insemination and embryo implantation can be carried out on a woman in institutions that are received to license for medical activities with the written consent of spouses.  Information on the performance of the artificial insemination embryo implantation, as well as the identity of the donor are confidential.  A woman has a right to information about the procedure of artificial insemination embryo implantation, about the medical and legal aspects of its impact on these health-genetic testing, external data and national donors, provided a doctor performed the medical intervention.  Unlawful conduct of artificial insemination and embryo transfer shall entail a criminal responsibility established by the legislation of the Russian Federation.”

E.2 Order of the Ministry of Health of the Russian Federation

            “On the order of use of Assisted Reproductive Technology, contrary indications and limitations to the use.”

Relevantly, the order allows for the use of donor, egg and sperm through ART – which are methods of treatment in infertility, or all of the stages of conception of an early embryo taking place outside the mother’s body.  This service can be provided to a man and woman.  The laboratory providing the service must have a licence for the execution of works (services) in obstetrics and gynaecology (use of ART).  There is a requirement for a survey to establish the cause of infertility.  The recommendation duration of that survey is 3-6 months.  If, after the cause of infertility treatment is carried out, including laparoscopic and hysteroscopic correction, stimulation of ovulation treatment and male factor infertility has been deemed ineffective (pregnancy has not occurred within 9-12 months), patients are referred for treatment with ART.

Russian Family Code 1995

Article 51 governs the entry of the child’s parents into the register of births.  Sub-article 1 provides:

            “The married father and mother shall be written down as the child’s parents into the Register of Births upon an application of any one of them.”

Sub-article 2 provides:

            “If the parents are not married, the entry about the mother shall be made about the mother’s application, and not about the father – upon a child application of the child’s father and mother, or by an application of the child’s father (item 4, article 48 of the present Code) or the father shall be written down in accordance with a court decision.”

Sub-article 3 provides:

            “If the child is born to an unmarried mother, in the absence of a joint application of the child’s parents and in the absence of the court decision on establishing the fatherhood, the surname of the child’s father in the Register of Births shall be written down as the mother’s surname, and the first name and patronymic of the child’s father – according to her statement.”

Sub-article 4 provides:

            “Married persons who have given their consent in written form to the artificial fertilisation or to the implantation of the embryo, shall be written down in the Register of Births if a child is born as a result of the application of these methods, as the child’s parents.

            The married persons who have given their consent in written form to the implantation of an embryo in another woman for bearing it, may be written down as the child’s parents only with the consent of the woman who has given birth to the child (of the surrogate mother).”

I would be very concerned if surrogacy were undertaken in Russia by anyone who is not in a heterosexual marriage, given the terms of Article 51. It has been suggested by a Moscow lawyer that others can undertake surrogacy in Russia- heterosexual cohabiting couples, same-sex couples and singles. I would be extremely wary about any of those undertaking surrogacy in Russia.

My clients were able to establish that they were the parents of the child in accordance with Russian law because:

Event
Law
They were lawfully able to proceed with surrogacy.
Order 67 of the Ministry of Health Care of the Russian Federation on application of Assisted Reproductive Technology
The intended mother was entitled to the right to artificial fertilisation and embryo implantation.
Healthcare Act No. 5487-1, article 35
The parties were in a heterosexual marriage.
Russian Family Code 1995, article 51(4)
The intended mother was unable to have a child.
Order 67 of the Ministry of Healthcare of the Russian Federation on application of ART
The intended parents gave their consent in written form to the artificial fertilisation
Russian Family Code 1995, Article 51(4)
The intended parents consented in writing to the implantation of the embryo.
Russian Family Code 1995, Article 51(4)
The intended parents consented to the embryo being implanted into the surrogate.
Russian Family Code 1995, Article 51(4)
The surrogate mother has given written consent to the intended parents being identified as the parents.
Russian Family Code 1995, Article 51(4)

My clients spent approximately US$60,000 on IVF in both Australia and Russia.  They spent approximately US$30,000 on the surrogacy arrangement. 

My clients ensured both for my purposes and for the purposes of the Australian Embassy that the following documents were translated into English:

1.      The agreement with the surrogacy agency;
2.      The retainer agreement with the IVF clinic;
3.      The ART consent form;
4.      The donor oocytes consent form;
5.      The donor sperm consent form;
6.      The surrogacy consent form;
7.      The acknowledgement by the surrogate that the intended parents were the parents;
8.      The consent by the surrogate mother to register the child as my client’s child.

There was no separate agreement between the intended parents and the surrogate similar to a gestational carrier agreement.  There was no separate agreement between the intended parents and either of the donors.  Despite those limitations, and the ability of the surrogate to withhold consent to the intended parents being recognised as the parents of the child (and there have been reported cases of that), the whole process was remarkably smooth and it appeared to me that the agreement with the agency and the agreement with IVF clinic were extremely well drafted and thorough.

It appeared plain to me that the clinic and the agency knew what they were doing. 

The position with surrogacy in Russia, although involving similar amounts of money to that in the Ukraine, is quite different in one sense in that in Russia the consent of the surrogate must be obtained for transfer parentage to occur, whereas in the Ukraine when the child is born the intended parents are automatically recognised as a matter of law as the parents.

Republic of the Philippines

The Philippines is an interesting case study.  It is a deeply conservative, mainly Catholic country with a population of just over 100 million people and is the only country that prohibits divorce. Same sex marriage is not recognised. In the south of the country there is a significant Muslim minority.

Despite the prominence of the Catholic Church, and while there is discrimination against gay and lesbian couples, including the inability to adopt - and as I understand it for lesbian couples being unable to access IVF- nevertheless there are IVF clinics. There has been no criminalisation of gay sex since 1822, when the Napoleonic Code came into effect. 

There is no specific recognition in law for surrogacy, so there is no ability to transfer parentage.

Children are either legitimate, having been born through marriage, being a heterosexual marriage, or illegitimate. 

Article 163 of the Family Code of the Philippines provides:

            “The filiation of children may be by nature or by adoption.  Natural filiation may be legitimate or illegitimate.”

Article 164 provides:

            “Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.”

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Code: Article 165.  Legitimacy of a child may be impugned on the basis:

1.      That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days or the 300 days which immediately preceded the birth of the child because of:
(a)          the physical incapacity of the husband to have sexual intercourse with his wife;

(b)         the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c)          serious illness to the husband, which absolutely prevented sexual intercourse;

2.      That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except for the instance provided in the second paragraph of article 164; or

3.      That in case of children conceived through artificial insemination, the written authorization or ratification of either parent as obtained through mistake, fraud, violence, intimidation, or undue influence. 

There is the ability of a single person to adopt: article 183.  Aliens may not adopt, except:

(a)          A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b)          One who seeks to adopt the legitimate child of his or her Filipino spouse;

(c)          One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse or relative by consanguinity of the latter;

(d)          Intercountry adoption.

The husband and wife must jointly adopt, except in the following cases:

1.      When one spouse seeks to adopt his own illegitimate child; or
2.      When one spouse seeks to adopt the legitimate child of the other: Article 185.

Filipino law is silent on commercial surrogacy or egg donation, but it is arguable that surrogacy may be defined as child trafficking.  Child trafficking is defined in the Special Protection of Children Against Abuse, Exploitation and Discrimination Act 1992 as:

            “Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua.  The penalty shall be imposed in its maximum period when the victim is under twelve (12) years of age.”

Section 8 of that Act provides in part:

            “There is an attempt to commit child trafficking under Section 7 of this Act:

            (c)        When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking.”

Under Article VII, section 11:

            “An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse if the acts constituting the same occur in the premises of said establishment under this Act or in violation of the Revised Penal Code, as amended.  An enterprise such as a sauna, travel agency, or recruitment agency which: promotes the aforementioned act as part of a tour for foreign tourists; exhibits children in lewd or indecent shows; provides child masseurs for adults of the same or opposite sex and said services include any lascivious conduct with the customers; or solicits children or activities constituting the aforementioned acts shall be deemed to have committed the acts penalized herein.”

Sally Escutan, then Legal Services Chief for the Department of Social Welfare and Development told ABS-CBN News in 2009 that section 8 of the Act would not apply to surrogacy because surrogacy and “egg harvesting both take place before a child is born, so Section 8 of RA7610 would not apply since it involves trafficking a child”[3].

The Philippine Society of Reproductive Medicine in 2006 and 2011 and the Philippine Obstetrical and Gynaecologic Society in 2011 have mandated that certain services associated with IVF are not offered:

·        sperm, egg or embryo donation
·        surrogacy
·        PGD.

It appears a consideration under the Civil Code, that human body and its organs like the heart, kidney and the liver are outside the commerce of man.  This was recognised by the Supreme Court in Beltran v. The Secretary of Health (GR No. 133640).  It says that the comparison of a human organ is not a proper object of a valid contract and therefore a vagina or any part of a woman’s internal reproduction organ, being a human organ, is beyond the commerce of man.

Bringing the baby home

The 1987 Constitution, Section 1, Article IV provides:

            “The following are citizens of the Philippines:

1.      Those who are citizens of the Philippines at the time of the adoption of this Constitution;
2.      Those who are fathers or mothers are citizens of the Philippines;
3.      Those who are born before January 17, 1973 are Philippine mothers, who elect Philippine citizenship upon reaching the age of majority; and
4.      Those who are naturalized in accordance with the law.”

I am simply unaware as to the mechanism for bringing a baby home to the Philippines from the United States.  It seems plain, however, that the child would not be recognised under Filipino law as a child of the intended parents.

Birth certificate

I simply don’t know what the requirements of Filipino authorities might be, but I would suggest as a matter of caution:

·        For any visas intended parents will be at risk that their child cannot enter the Philippines if they disclose that they underwent surrogacy somewhere else.
·        If intended parents are a heterosexual couple - have their names on the birth certificate.
·        If the intended parent is a single woman- that her name alone is on the birth certificate.
·        If the intended parent is a single male or a gay couple- that the genetic father and the surrogate are shown on the birth certificate as the parents.

It would be wise for intended parents to exercise a great deal of caution in dealing with Filipino authorities in seeking to have their child live in the Philippines or obtain Filipino citizenship.

Indonesia

It is sometimes forgotten that Indonesia is the world’s largest Muslim country, with a population of 260 million. Indonesia, according to some projections will in a few years become the world’s fourth largest economy. Indonesia has some significant minorities- Christian- especially on Ambon, Hindu- especially on Bali, and indigenous- especially in Papua.

Like the rest of Asia (with the likely exception soon of Taiwan, due to the ruling of its highest court), same sex marriage in Indonesia is not recognised.

I have had a number of clients, typically Australian same-sex couples, living in Indonesia who have undertaken surrogacy elsewhere (typically in the United States) and been able to have their child live with them in Indonesia.  It is a mystery to me as to how this has been able to be achieved as I have not yet been able to locate one lawyer in Indonesia who is willing to give advice about surrogacy. The general response that I received is that the area of surrogacy is outside the lawyer’s expertise- and that they are reluctant to touch it.

It appears that under Indonesian law the practice of surrogacy is not allowed by implication.  The three relevant laws appear to be:

1.      The Civil Code 1847;
2.      Law No. 23 of 2002 on child protection;
3.      Law No. 36 of 2002 on law on health.

Section 2, article 5(a) provides:

            “Legitimate and illegitimate children acknowledged by the father shall carry the family name of the father; illegitimate children not acknowledged by the father shall carry the family name of the mother.”

It is possible under the Code to change a person’s name but under Article 10:

            “The acquisition of a name in accordance with the provisions of the four aforementioned articles shall never be submitted as evidence of kinship.”

Marriage is heterosexual only: Article 27.

Under Article 250 the husband shall be deemed to be the father of a child born out of or conceived during the marriage.  The parenting presumptions as to paternity make no allowance for ART or surrogacy.

Under Article 272:

            “Children conceived outside marriage, with the exception of those who have been conceived in an adulterous or incestuous relationship, shall be legitimized by the ensuing marriage of their father and mother, if the latter-mentioned have acknowledged them legally prior to the concluding of the marriage, or if the acknowledgement took place at the time of the execution of the marriage certificate.”

It is possible to acknowledge a natural child which shall create a civil relationship between that child and his father or mother: Article 280.  However, no acknowledgement of a natural child shall, during the lifetime of the mother be accepted if the mother does not approve the acknowledgement: Article 284.

Under Article 287:

            “Investigation of maternity shall be permitted.  In this regard the child is required to prove that he or she was borne by that mother.  No proof by witnesses with respect to the child shall be admitted, unless there already exists initial written proof: article 288”.

Article 127 of Law No. 36 of 2009 on health, the Health Act, sets out that IVF can be undertaken but it is only available for heterosexual married couples using their own gametes.  The Act is silent about surrogacy.

Being Roman Dutch law, unless the law permits it, it would appear that an act is prohibited.  A requirement of any contract is that it is not contrary to law, morals or public order: Article 1320 in conjunction with Article 1337 of the Civil Code.  Because surrogacy is not referred to in the Health Act, it would appear on the face of it that surrogacy in Indonesia is unlawful.

From commentary, it would appear that surrogacy is banned under sharia law.

However, it appears that some surrogacy occurs in Indonesia, presumably only to heterosexual couples. A clinic in Jakarta advertises its fees as the equivalent of US$26,000 to undertake surrogacy[4].

Same sex couples

The National Criminal Code does not prohibit private, non-commercial homosexual relations between consenting adults who have reached 18 years of age. 

Following the demise of the Suharto regime, local governments have been given the option to pass local laws based on traditional Islamic morality.  In 2002 the Aceh province was given the right to introduce Islamic Sharia laws which criminalise homosexuality – but only to Muslim residents.  By 2015 Aceh was enforcing laws that punished homosexuals.  Earlier this year Aceh was punishing transgender hairdressers, requiring them to speak with deep voices and wear masculine clothing, and identify as men.

There is a current debate and movement in Indonesia to pass a new national criminal code which outlaws homosexuality.  The code is expected to pass in 2019. 

Recognition as parents

Article 27 of Law No. 23 2002 on the Protection of Children relates to the right of self-identity as outlined in the birth certificate.

For surrogacy involving a donor, if the intended parents’ name appeared on the birth certificate, it may be illegal because the intended mother is not the mother who gave birth to the child.

The Civil Code says that a child can only be acknowledged by the father through a marriage with the mother. Since the husband is the intended father, but is not married to the surrogate, then the intended father cannot be considered as a legal father under Indonesian law and can’t be added to the birth certificate. Being an accomplice to putting his name and/or his wife’s name on the birth certificate could trigger penal sanctions.

The child becomes a citizen of Indonesia if, whether or not the child is born out of Indonesia, the father and mother are both Indonesian citizens. If your child is born abroad, it appears what you need to bring the child in is a birth certificate naming you as the parent. 

It appears that you may be able to get the birth certificate in a country that has no problem with surrogacy and omitting the name of the surrogate mother.  In other words, getting a birth certificate in another country and registering it in Indonesia. 

It indicates on www.expat.or.id/info/registeringbirth.html, that a parent will need to apply for a limited stay permit for the child, which will follow the visa of the working spouse, if both parents are foreigners.  This is the ITAS visa.  The expiration date of the child’s ITAS will follow the expiration date of the father’s ITAS.  An exit visa for the baby is required as well. I don’t know what form the birth certificate ought to take.

Having a valid marriage according to Indonesia’s laws will affect whether the father and mother’s name appear on the child’s birth certificate. 

Birth certificate

I simply don’t know what the requirements of Indonesian authorities might be, but I would suggest as a matter of caution:

·        For any visas intended parents will be at risk that their child cannot enter Indonesia if they disclose that they underwent surrogacy somewhere else.

·        If intended parents are a heterosexual couple - have their names on the birth certificate.
·        If the intended parent is a single woman- that her name alone is on the birth certificate.

·        If the intended parent is a single male or a gay couple- that the genetic father and the surrogate are shown on the birth certificate as the parents.

It would be wise for intended parents to exercise a great degree of caution in dealing with Indonesian authorities when seeking their child to live in Indonesia or obtaining Indonesian citizenship.

Republic of Korea

Same-sex marriage is not recognised in Korea. Gay sex is not a crime in Korea- but current reports[5] are that gays are being persecuted in the military, and that this has been on the rise for the last two years. Given that there is a compulsory draft, this is a major issue. South Korea has a population of about 50 million. A majority of the population holds no religion, almost 30% are Christian, and under 20% are Buddhist.

Surrogacy is unregulated in South Korea but ethical guidelines issued by the Korean Medical Association discourages its use if the surrogate mother is attempting to give birth in exchange for money sale - commercial surrogacy. 

New Life, an agency that has previously operated in India, Thailand and Cambodia, says this about Korea[6]:

“In Korea, there is no law that restricts or legalizes surrogacy. Although there are no restrictions, Medical Association of Korea provides certain guidelines according to which, commercial surrogacy is not encouraged in the country.
Assisted reproduction technologies are permitted in Korea. Clinics that provide fertility treatments, need a special allowance and prior authorization from the minister of health and welfare. Only married couples can receive fertility treatment and same-sex parenthood is not accepted. In Korea, female giving birth to a baby will be a legal mother.
Egg donation procedures can be performed, however, are acceptable for research purposes only. A female can not donate her eggs more than three times.
Intended parents do not need to be worried if a certain country does not satisfy their needs or meet their expectations about surrogacy services. For our programs, we choose the most appropriate and unproblematic destinations.”
In an article titled “Sperm and Egg Tray, Surrogacy Back in Spotlight” published on 23 October 2011 by the Korea Herald, a man was arrested for arranging a surrogate pregnancy[7].  It reported he had organised surrogacy procedures for 29 women, 11 of which succeeded.  Nine babies were born and 2 surrogates were currently expecting. Of that 11, two of them had used their own eggs, which were fertilised with the sperm given by the fathers of the childless couples.  The remaining surrogates had just lent their wombs.  The man was arrested and accused of arranging the sale of eggs for those two women. The two women were also booked without detention for selling their eggs for surrogacy. 

Although it is legally ambiguous for surrogacy, Korea bans human egg sales outright. The problem was with the two women they had conceived using their own eggs which constituted an egg sale.  The current bio ethics law bans persons from giving or using sperm or eggs for profit or enticing their trade. 

An understanding of the legal landscape would be that surrogacy is accepted altruistically but not commercially. The Korean Medical Association discourages the use of surrogacy for commercial reasons.  

In Chapter 5 of the Handbook of Gestational Surrogacy: International Clinical Practice, Chapter 25 – Gestational Surrogacy in Korea – it reports gestational surrogacy is not illegal although there are no definitive policies or regulations pertaining to that procedure.

The relevant legislation is the Bioethics and Safety Act 2005 enacted on 29 January 2004 and modified in 2008.  The Bioethics and Safety Act 2005 prohibits financial transactions involving gametes among parties in Article 13.3:

“No-one shall provide or utilise the sperm or oocytes, or induce or assist in providing or utilising them for the purpose of receiving monetary benefits, property interests or other personal benefits in return.” 

The Act also bans PGD in Article 13.2.1:

“In producing embryos for the purpose of pregnancy, no one shall perform any of
the following acts:

1. Fertilizing an oocyte, when the oocyte and/or sperm have been specially
selected for the purpose of producing offspring of a particular gender.

Donors can be compensated for time. Article 15.4 provides:

“Embryo Producing Medical Institution may pay oocyte donors for their time needed for
oocyte collection procedure and recovery, and transportation fare as determined by the
Ordinance of the Ministry for Health and Welfare.”

I am not aware of the rate set by the Ordinance.

It appears that as long as there are no financial rewards, gestational surrogacy is not illegal in Korea. The practice of registering the intended parents’ names on the birth certificate instead of the surrogate’s also appears to be illegal.

In an article titled “Current issues on a standard for surrogate pregnancy procedures” published on 31 December 2012 by John-Ok Ha, he reports also that the Bioethics and Safety Act of Korea may ban writing surrogacy related contracts because the efficacy of the contracts cannot be recognised, in other words the object of the contracts cannot be recognised.

A surrogate’s arrangement has been urged to be considered as a justice act contrary to a social order, which invokes Article 103 of the Korean Civil Act which states that:

“A justice act which has for its object such matters as are contrary to good morals and other social order shall be null and void”.

Status of parents

The Korean Civil Act is oriented to defining, recognising or denying the father’s identity rather than the mother’s.  The principle of Roman law, mater semper certa est pater semper incertus ist [the mother is always certain, the father is always uncertain], is incorporated into the law.  Article 844.1 of the Korean Civil Act says:

“A child conceived by a wife during marriage shall be presumed to be the child of the wife’s husband.”

The focus is on the marital relation between the child carrying woman and her husband when determining legal fatherhood. Genetic connection is not stipulated by the law.  Therefore, the husband of the surrogate shall be the father of the baby- regardless of genetics or intention, unless stated otherwise and unless the legal validity of the surrogate arrangement is recognised. 

For surrogate mothers, it appears that the Institution needs to confirm that a surrogacy arrangement is not made for the purpose of acquiring pecuniary or property gains or other considerations in written form. 

Bringing the baby home

Regrettably I have no information that can assist.

Birth certificate

I simply don’t know what the requirements of Korean authorities might be, but I would suggest as a matter of caution:

·      For any visas intended parents will be at risk that their child cannot enter Korea if they disclose that they underwent surrogacy somewhere else.

·      If intended parents are a heterosexual couple - have their names on the birth certificate.

·      If the intended parent is a single woman- that her name alone is on the birth certificate.

·      If the intended parent is a single male or a gay couple- that the genetic father and the surrogate are shown on the birth certificate as the parents.

It would be wise for intended parents to exercise a great degree of caution in dealing with Korean authorities when seeking their child to live in Korea or obtaining Korean citizenship.

Stephen Page and Dharma Gan
Harrington Family Lawyers



14 March 2018


[1] Stephen Page is a partner of Harrington Family Lawyers, Brisbane, Australia.  He was admitted as a solicitor in 1987 and has been an Accredited Family Law Specialist since 1996.  Stephen is a Fellow of the International Academy of Family Lawyers and of the American Academy of Adoption and Assisted Reproduction Attorneys.  He is a member of the Fertility Society of Australia and of the Asia-Pacific Rainbow Family Forum, amongst others.
[2] Dharma Gan is a solicitor at Harrington Family Lawyers, Brisbane, Australia.  He was admitted in 2016.
[5] At the ILGA Asia conference I attended in December 2017 from the Korean delegation.

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