Małgorzata Manowska
First President
Supreme Court of the Republic of Poland
Civil law aspects of gestational surrogacy (under Polish law): selected issues*
Outline: 1. Introduction ‒ 2. Legal assessment of the admissibility of surrogacy in Poland ‒ 3. Legal consequences of the actual implementation of surrogacy procedures in Poland ‒ 4. Conclusion.
- Introduction
The phenomenon of gestational surrogacy has long been a source of social, ethical and legal controversy. In an era of rapid advances in reproductive medicine, globalisation and the use of cross-border medical services, the issue of gestational surrogacy is taking on particular significance for both the Polish and Italian legal systems. Even if we adopt the position that surrogacy as such is inadmissible in certain legal systems, we cannot turn a blind eye to the reality of so-called “reproductive tourism”, i.e. travel to other countries to undergo surrogacy procedures.
It should be noted, however, that this is neither a new problem nor exclusively a modern challenge. Let us consider a few examples from antiquity.
For instance, the practice that served the modern function of surrogacy was already regulated in the Code of Hammurabi. Children born to a slave woman could become full heirs only if the father acknowledged them as his own during his lifetime (by addressing them as “my children”). Otherwise, upon the father’s death, these children and their mother would only gain their freedom, but no rights to the estate[1].
And let us consider perhaps the best-known ancient example: the story of Abraham and his barren wife Sarah. Sarah, Abraham’s wife, suggested that a servant named Hagar act as a surrogate to her husband, and Hagar gave birth to a son called Ishmael. Sarah recognised Ishmael as her own child.
It is worth noting that ancient forms or, one could say, proto-forms of surrogacy were closely linked to the legal status of slaves and the desire to ensure the continuity of the family line.
In modern times, starting from the 1980s, medicine has presented us with a new complication: it became technically possible to carry out gestational surrogacy, characterised by the absence of a genetic link between the surrogate and the child. In other words, the embryo is usually created from the egg and sperm of the intended parents, while the surrogate physically gives birth to the baby. Compared to ancient times, the motivations behind surrogacy have also changed. And today we must face this “contemporary” and “update” phenomenon of surrogacy.
I shall endeavour to do so from the perspective of Polish law. Let me share some reflections in this regard.
My presentation will consist of two parts. The first will concern an assessment of the legal admissibility of surrogacy in Poland. I will then attempt to outline how the law currently in force in Poland responds to the situation where a surrogacy procedure is actually carried out in Poland. In other words, I will discuss the legal consequences of a situation where surrogacy has already taken place.
The situation that I will not consider here is one where a so-called surrogate mother gives birth to a child of her own at the behest of another woman or couple (with premeditated intention), as such conduct should be regarded as human trafficking. Let me also apologise in advance for treating a living being as an object rather than the subject of a legal relationship, but this is intended to highlight how unnatural such a situation is.
2. Legal assessment of the admissibility of surrogacy in Poland
From the perspective of private and civil law, surrogacy is, first and foremost, an agreement or contract. If we wanted to analyse this agreement using the analytical tools of civil law, we could say that it is an unnamed contract, where the essentialia negotii (essential elements) have not been defined by statute. This also means that, in theory, the source of this contract should be analysed from the perspective of freedom of contract. The parties to this contract are the surrogate mother and either one parent (usually the mother awaiting the “delivery” of the child) or parents – let us call them the “intended parents”. As such, it would be a reciprocal, causal, dispositive and obligatory, consensual, and mutually binding contract in exchange for consideration. Suppose we conduct a thought experiment and consider the types of contract that a surrogacy agreement most closely resembles: we might conclude that it contains features of both a “contract for the provision of services” and “a contract for specific work”. A surrogacy agreement resembles a contract for the provision of services in that the surrogate mother undertakes to perform a series of actions (in particular, undergoing the implantation procedure, caring for the baby during pregnancy, and giving birth), but cannot “guarantee” the birth of a healthy baby or her ability to carry the baby for the full term of the pregnancy. Therefore, this is an obligation of due care rather than an obligation to deliver a result.
When characterising this contract, one should note that trust and the personal performance of actions undertaken by the surrogate mother are the crucial elements. The surrogate mother cannot use a substitute. Furthermore, we can observe a certain continuity of actions. Pregnancy lasts nine months and requires the routine performance of specific activities (medical examinations, a suitable diet, abstaining from smoking or consuming alcohol), which is closer in nature to services than to the one-off “production” of an object.
On the other hand, the similarity of the surrogacy agreement to a contract for specific work is evidenced by the fact that the ‘intended parents’ are not interested in the surrogate simply “being pregnant”, but in a specific result: the birth and transfer of the baby to them. The commonly used method of financial settlement is another argument in favour of similarity to a contract for specific work. In most cases, the surrogate mother receives a non-returnable deposit or advance payment at the outset, while the main remuneration (for instance, in commercial models used in other countries) is contingent upon the successful completion of the pregnancy and labour, the birth of the baby and the handover of the baby to the intended parents.
The essentialia negotii, or essential elements, of such an agreement would include three components, namely:
- The surrogate mother undertakes to undergo a medical procedure and give birth to a baby.
- The surrogate mother undertakes to hand the baby over to the intended parents after childbirth.
- The intended parents commit to accepting the baby and paying the remuneration.
The accidentalia negotii (subjectively essential elements) of the agreement may include, for example: an obligation to reimburse the costs of medical care, clothing and food; the requirement that the surrogate mother follows a specific diet or performs physical exercises; or contractual penalties for withdrawing from the contract.
Such an agreement may take any form since, in the absence of specific regulations, we would apply the general principle of freedom of form in legal transactions.
Having characterised the surrogacy agreement, or “childbirth contract”, we must assess its admissibility and validity from the perspective of Polish law.
I believe that such an agreement is absolutely null and void. The invalid nature of such an agreement from the perspective of Polish civil law is based primarily on the application of Article 58 of the Polish Civil Code. This provision is found in the general part of the Civil Code and is of significance for the entire system of private law. According to this article, an agreement is null and void if it is contrary to the law or to the principles of social coexistence, which correspond to the criterion of ‘good morals’ (boni mores) known also to the ancient Romans.
As regards conflict with the law or the intention to circumvent the law, let me highlight a few issues in the context of a surrogacy agreement:
Firstly, the principle of “mater semper certa est” (the mother is always certain) has long been enshrined in Polish law. However, in the context of the medical advances mentioned in the introductory part of this paper, this principle is no longer self-evident to everyone. Consequently, Article 611 was introduced into the Polish Family and Guardianship Code in 2008. It states clearly and unambiguously, leaving no room for interpretation: “The mother of a child is the woman who gave birth to it”. This provision introduces a mandatory, absolutely binding norm, i.e. norma iuris cogentis. This means that this legal norm cannot be altered by the will of the parties. Yet it is precisely the essence and purpose of a surrogacy agreement to change the rules of a child’s filiation. At this point, the surrogacy agreement is in conflict with binding law.
Secondly, civil status (including the child’s descent from a specific person) is a personal right under Polish law. It is inalienable and cannot be disposed of; it is outside the scope of commercial transactions (extra commercium). The issue of parental authority is similar in nature: it cannot be transferred by the will of the parties to the agreement. Thus, an agreement based on the opposite premise is null and void.
Thirdly, Polish law provides for strict and rigorous adoption procedures. These procedures are primarily focused on the child’s best interests and are subject to review by the guardianship courts. A surrogacy agreement represents an attempt to circumvent these regulations. Therefore, we are dealing with a circumvention of the law, which also results in the invalidity of such an agreement.
Fourthly, while I am not a specialist in criminal law, I have noted that my colleagues in Poland who specialise in criminal law analyse surrogacy in the context of two offences. The first of these is human trafficking, i.e. Article 189a of the Polish Criminal Code[2], as well as the offence of “illegal adoption” i.e. Article 211a of the Criminal Code[3]. A conflict with the law within the meaning of Article 58 of the Civil Code concerns not only the provisions of private law, but those from other branches of law, including criminal law. Consequently, the classification of the surrogacy procedure as a criminal offence also, as a matter of course, renders the surrogacy agreement null and void.
And, fifthly, it is recognised that a surrogacy agreement contradicts the principle of dignity, expressly set out in Article 30 of the Polish Constitution. Surrogacy leads to the “commodification” of the baby and the woman’s body. An agreement in which a human being becomes the object of a service violates inherent and inalienable dignity, which means that such an agreement contradicts the very foundations of the legal order, which includes the protection of dignity.
With respect to conflict with the principles of social coexistence, i.e. the equivalent of “good morals”, this clause invokes moral values that are universal, commonly recognised and respected in society. Here, several arguments can be raised on the basis of this standard of review.
Firstly, it is generally considered immoral to treat a child as an “object of a commercial order” and the process of birth as a “service”. The sale or transfer of parental authority in exchange for payment is contrary to the fundamental ethical standards prevailing in Polish society. The introduction of a market component (equivalence of performances) into the act of childbirth is viewed as immoral.
Secondly, according to the principles of social coexistence, family relations must be based on emotional and biological bonds. An agreement that provides for separating the child from its biological mother immediately after birth is deemed harmful to the psychological well-being of the newborn.
Thirdly, according to ethical principles, the bond between the mother and the child, which begins to form during the prenatal period, must enjoy special protection. An agreement that, right from the outset, assumes the deliberate severing of this bond is regarded as one that undermines fundamental social values.
3. Legal consequences of the actual implementation of surrogacy procedures in Poland
If a surrogacy procedure were to be carried out in the territory of Poland, the application of the law de lege lata raises several points.
As stated in the first part of this paper, a surrogacy agreement would be invalid and have no legal effect. The state would not provide protection for such an agreement.
As a consequence, the surrogate mother would not be able to claim remuneration, and the intended parents would not be able to demand the handover of the child. Polish civil courts would dismiss such petitions, which means that such claims would not be enforceable.
In accordance with the rule of filiation mentioned earlier, the surrogate mother is the child’s mother, and she is the only person who may be entered in the child’s birth record as the mother. Genetic tests confirming that the intended mother is the genetic mother are also considered irrelevant.
Consequently, the surrogate mother will acquire parental authority over the child.
The attribution of parental authority to the intended mother (the commissioning mother) is possible only through adoption, i.e. a so-called “designated adoption”. This is because, under Article 1191a of the Polish Family and Guardianship Code, which was introduced in 2015, parents may designate an adoptive parent before the guardianship court, and this adoptive parent may only be a relative of the child’s parents, subject to that person’s consent expressed before that court. Also, the spouse of one of the parents can be the designated adoptive parent.
However, let us imagine, purely theoretically, that the intended parents might want to circumvent this regulation. This could potentially be achieved in two steps.
In the first step, the intended father acknowledges paternity of the child, with the surrogate mother’s consent. Subsequently, an application for adoption is submitted to the court, designating the spouse of one of the parents as the adoptive parent. This would lead to the adoption of the child by the intended mother.
However, some questions deserve to be asked here: Would such a procedure constitute an abuse of the institution of adoption? Does it lead to a circumvention of the law? How should the courts conduct evidentiary proceedings to detect the factual circumstances surrounding a potential surrogacy? Should judges be required to report, ex officio, cases of suspected offences of human trafficking or illegal adoption if they have reasonable grounds to suspect surrogacy?
4. Conclusion
In summary, the intention of my paper was to provide a general overview of the position of Polish law on surrogacy. It follows from the analysis that, de lege lata, a surrogacy agreement is absolutely null and void under Polish law and, as such, has no legal effect. While this paper has focused on the legal aspects of surrogacy, ethical and emotional aspects take priority in the assessment of the institution of surrogacy, namely the feelings of the child who was the subject of the agreement, and the feelings of the woman who carried the foetus for nine months and must subsequently be separated from the baby she gave birth to. I can understand the tragedy of women who are unable to give birth to a child, but I am opposed to the institution of surrogacy. Human beings are creatures who constantly push boundaries, which leads to degeneration. The potential legalisation of gestational surrogacy does not fully consider the nature of human beings and creates the temptation to extend this institution to situations where children are born “to order” using a woman’s own eggs, while treating her as an incubator devoid of feelings.
Given the time constraints, I have been unable to address all the existing issues in this paper, particularly those concerning the response of Polish law to surrogacy procedures carried out abroad, such as the transcription of civil status records from countries where surrogacy has been legally performed.
Nevertheless, I am very much looking forward to your presentations and comments on this socially important issue. I believe such sharing of experiences is highly valuable, particularly in the Italian-Polish context, as Poles and Italians have many things in common.
Thank you very much for the opportunity to present this paper.
* Co-author: dr. Albert Pielak, Supreme Court Research and Analyses Office.
[1] [§ 170 of the Code of Hammurabi: «If a man’s wife bear him children and his maid-servant bear him children, and the father during his life time say to the children which the maid-servant bore him: “My children”, and reckon them with the children of his wife, after the father dies the children of the wife and the children of the maid-servant shall divide the goods of the father’s house equally. The child of the wife shall have the right of choice at the division»].
[2] § 1. Whoever engages in human trafficking shall be liable to imprisonment for a term of 3 to 20 years.
[3] § 1. Whoever, for financial gain, organises the adoption of children contrary to the provisions of this Act shall be liable to imprisonment for a term of 3 months to 5 years.
