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Case 5 - Surrogate Motherhood Contracts

Published online by Cambridge University Press:  11 February 2021

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Summary

Mr and Mrs Duck concluded a contract with Miss Swan stipulating that she would carry and give birth to a child for them. The child was conceived by artificial insemination of Miss Swan's egg with Mr Duck's sperm. According to the agreement between the parties, Miss Swan was reimbursed for expenses related to the pregnancy and birth (including healthcare and clothing). After giving birth to a healthy baby boy, whom she named Donny, Miss Swan, however, realised she felt so much affection for the baby that she was unable to hand him over to Mr and Mrs Duck. Can the couple require Miss Swan to give Donny to them? If not, can they reclaim the amount of money they paid to Miss Swan?

Variation 1: Would it make a difference if Miss Swan had received a sum of €25,000 for acting as a surrogate mother?

Variation 2: Would it make a difference if Donny had been conceived using genetic material of both Mr and Mrs Duck and Miss Swan would only have carried and given birth to him?

Case References: Trib. Monza 27 October 1989, Foro it. 1990, I, 298; Trib. Roma 17 February 2000, Foro it. 2000, I, 972; OLG Hamm 2 December 1985, NJW 1986, 781; Cass. Ass. plén. 31 May 1991, D. 1991.417.

AUSTRIA

OPERATIVE RULES

Mr and Mrs Duck cannot require Miss Swan to give Donny to them. They cannot require Miss Swan to reverse the reimbursement for the costs of giving birth and any consequential costs, but most likely can recover the reimbursement of pre-birth expenses.

Variation 1: The results would be the same. It is likely that the sum of €25,000 cannot be recovered.

Variation 2: The results would be the same.

DESCRIPTIVE FORMANTS

According to Art. 3(1) Reproductive Medicine Act, only eggs and sperms of spouses, registered partners or cohabitees may be used for medically supported reproduction of human beings. It is evident from the travaux préparatoires to this provision that the Austrian legislator intended to prohibit any form of surrogate motherhood. Conceiving Donny by artificial insemination of Miss Swan's egg with Mr Duck's sperm would therefore be illegal in Austria, and thus the surrogate motherhood contract between Mr and Mrs Duck on the one side and Miss Swan on the other would be void on the ground of violating a statutory prohibition (Art. 879(1), first alternative, CC).

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Publisher: Intersentia
Print publication year: 2020

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