Legal Issues of A Surrogacy Contract Based on Iranian Acts
AbstractAssistive technologies have always opened new horizons in human’s life, posed solutions to problems and brought relief and prosperity for human beings. Iranian judicial authorities have recently recognized the importance of medical technologies. Accordingly, Iranian legal system has recognized surrogacy and a surrogacy contract seems unavoidable for surrogacy to be legally valid, socially acceptable and religiously legitimate. As a legal defense of including a typical surrogacy contract in contract law, this review studies the four building blocks of a valid contract: the intention and consent of parties, their legal capacity, the subject of the contract and its legitimacy. Discussing related Iranian Acts concerning contracts and responsibilities of parties, the authors of the present article deal with main commitments and responsibilities of the parties to a typical surrogacy contract: infertile couples, surrogate, fertility clinic or medical institute, and surrogate’s husband. The authors conclude that a surrogacy contract is accepted based on article 10 of Iranian Civil Act 1928, pose some suggestions to be included in such a contract, and emphasize that a specific Act concerning surrogacy should be approved to cover rights and legal needs of all parties to a surrogacy contract.
Whitehead MB, Schwartz-Nobel L. A mother's story: the truth about the Baby M Case. New York: St Martins 1989: 171-2.
Lacayo R. Is the womb a rentable space? Time 1986; 128: 36.
Roan S, Gottlieb J. Octuplets rattle fertility experts. Los Angeles Times 2009; 28 :A1.
Yoshino K, Garrison J. States consider stricter rules on fertility industry; some doctors worry that abortion rights could be limited. Los Angeles Times 2009; 6: A8.
Brinsden PR. Gestational surrogacy. Hum Reprod Update 2003; 9: 483–91.
Reilly DR.Surrogate pregnancy: a guide for Canadian prenatal health care providers. CMAJ 2007; 176: 483–5.
Inhorn MC, van Balen F, eds. Infertility around the globe: new thinking on childlessness, gender, and reproductive technologies. Berkeley: University of California Press, 2002.
Society for Assisted Reproductive Technology; American Society for Reproductive Medicine. Assisted reproductive technology in the United States: 2000 results generated from the American Society for Reproductive Medicine/Society for Assisted Reproductive Technology Registry. Fertil Steril 2004; 81:1207-20.
Akker VD.The complete guide to infertility: diagnosis, treatments, options. London: Free Association Books, 2002.
Bhatia K, Martindale EA,Rustamov O,Nysenbaum AM. Surrogate pregnancy: an essential guide for clinicians. Obstet Gynecol 2009; 11: 49–54.
Kindregan CP, McBrien M. Assisted reproductive technology: a lawyer's guide to emerging law and science. 1st ed. Chicago: American Bar Association; 2006; 29.
Bos H, van Balen F. Children of the new reproductive technologies: social and genetic parenthood. Patient Educ Couns 2010; 81: 429–35.
Okin SM. Justice, gender and the family. New York: Basic Books, 1991: 122.
Bernstein G. Regulating reproductive technologies: timing, uncertainty, and donor anonymity. Boston U Law Rev 2010; 90: 1189- 219.
Cahn NR. Test tube families: why the fertility market needs legal regulation. New York: NYU Press; 2009.
Cahn NR, Collins JM. Eight is enough, New U L Rev Colloquy 2009; 103: 1-8.
James S, Chilvers R, Havemann D, Phelps JY. Avoiding legal pitfalls in surrogacy arrangements. Reprod BioMed Online 2010; 21: 862-7.
Bashur AE. Whose baby is it anyway? the current and future status of surrogacy contracts in Maryland. U Balt L Rev 2009; 38: 165-72.
Malia SE. Balancing family members' interests regarding stepparent rights and obligations: a social policy challenge. Fam Relat 2005; 54: 298-319.
Omani Samani R, Vosough Taghi Dizaj A, Rezania Moalem MR, Merghati ST, Alizadeh L. Access to fertility treatments for homosexual and unmarried persons through Iranian law and Islamic perspective. International Journal of Fertility & Sterility 2007; 1: 127-30.
Whittaker A. Cross-border assisted reproduction care in Asia: implications for access, equity and regulations. Reprod Health Matters 2011; 19:107–16.
Paul EF.Fetal protection and freedom of contract. Public Affairs Quart 1992; 6: 305-26.
Garrison M. Regulating reproduction.George Washington L Rev 2008; 76:1623-56.
Shalev C. Birth power: the case for surrogacy. New Haven: Yale university press; 1989; 86.
Banerjee S, Basu S. Rent a womb: surrogate selection, investment incentives and contracting. J Econ Behav Organ. 2006; 69: 260-273.
Wilson MJW. Pre-commitment in free-market procreation: surrogacy, commissioned adoption, and limits on human decision-making capacity. J Legis 2005; 31: 329-37.
Committee on Ethics. ACOG committee opinion number 397, February 2008: surrogate motherhood. Obstet Gynecol 2008; 111:465-70.
Sachedina A. Islamic biomedical ethics: principles and application. Oxford: Oxford University Press; 2009; 66.
Indian Council of Medical Research and National Academy of Medical Sciences. National guidelines for accreditation, supervision and regulation of ART clinics in India. New Delhi: ICMR; 2004.
The holy Qur'an, 4: 141.
Galbraith M, McLachlan HV, Swales JK. Commercial agencies and surrogate motherhood: a transaction cost approach. Health Care Anal 2005; 13: 11-31.
Practice Committee of American Society for Reproductive Medicine; Practice Committee of Society for Assisted Reproductive Technology. Guidelines for gamete and embryo donation: a Practice Committee report. Fertil Steril 2008; 90: S30-S44.
Abbasia M, Samavati Pirouz A. Physician's acquittal of responsibility in Iranian statutes. J Res Med Sci 2011; 16: 211-8.
Krim TM. International perspectives on gestational surrogacy and the demise of the unitary biological mothers. Ann Health Law, 1996; 5: 193-226.
Baykal B, Korkmaz C, Ceyhan ST, Goktolga U, Baser I. Opinions of infertile Turkish women on gamete donation and gestational surrogacy. Fertil Steril 2008; 89: 817-22.
Broekmans FJ, Knauff EAH, Te Velde, ER, Macklon NS, Fauser BC. Female reproductive ageing: current knowledge and future trends. Trends Endocrin Met 2007; 18: 58-65.
Menezes RG, Bhagavath P, Adiga PK. Surrogacy in India. J Forensic Leg Med 2007; 14: 307.