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1635 results in Financial Law

Page 33 of 82

Principles of Banking Regulation
  • Kern Alexander
  • Published online:
    18 May 2019
    Print publication:
    06 June 2019
  • An accessible, comprehensive analysis of the main principles and rules of banking regulation in the post-crisis regulatory reform era, this textbook looks at banking regulation from an inter-disciplinary perspective across law, economics, finance, management and policy studies. It provides detailed coverage of the most recent international, European and UK bank regulatory and policy developments, including Basel IV, structural regulation, bank resolution and Brexit, and considers the impact on bank governance, compliance, risk management and strategy.

  • Russia

  • from THE FREE MARKET APPROACH
    • By Olga A. Khazova, The Moscow School of Social and Economic Sciences, Russia; National Research University ‘Higher School of Economics’, Russia
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 281-306

  • Summary

    GENERAL LEGAL FRAMEWORK

    SOME INTRODUCTORY COMMENTS

    The first time Russian law introduced provisions on assisted reproduction was in 1990, when Russia was still part of the Soviet Union. Although there were just two legal rules in that law, they were important and still exist in the current Russian legal regulation, albeit with a slightly modified wording. The first one stated that a husband who consented to assisted reproduction with donor insemination of his wife should be registered as the father of a child born to his wife. Under the second one, a person, who was registered as a child ‘s father by that person’ s application or joint application with the child ‘s mother, should not be able to contest that person’ s paternity at a later stage provided, if, at the moment of presenting a paternity application, that person knew that he actually was not the child's biological father.

    These provisions established that assisted reproduction should be understood as an imitation of natural procreation and to a significant extent shaped a general approach of future Russian regulation in the area of assisted reproduction, including surrogate motherhood. This approach, in turn, derived from understanding of assisted reproduction as fertility treatment. It was first formally stated in the Fundamental Principles of Legislation on Protection of Citizens ‘Health 1993 that stipulated the’ right of every adult woman of childbearing (procreative) age to assisted reproduction and embryo implantation ‘(s. 35). It was further developed in the Law on Protection of Citizens’ Health 2011 (s. 55), which is currently a standing law and which will be dealt in more detail later. Here, it is just important to note two points. Firstly, the 2011 Law says that a man and a woman, married as well as not married, have the right to have access to assisted reproduction technologies, provided they gave their mutual informed consent to medical interference.

  • Portugal

  • from THE REGULATORY APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 229-258

  • Summary

    GENERAL LEGAL FRAMEWORK

    STATUTORY FRAMEWORK

    In Portugal, specific legal rules allowing surrogacy were introduced very recently. Law no. 25/2016, dated 22 August 2016, which introduced amendments to Law no. 32/2006, dated 26 July 2006 (‘the Medically-Assisted Procreation Law’), created a legal framework for surrogacy in Portugal in 2016. A specific Regulatory Decree was enacted in 2017 (Regulatory Decree no. 6/2017, dated 31 July 2017) to supplement Law no. 25/2016, governing surrogacy.

    In 1997, a change to the Constitution of the Portuguese Republic mandated the Portuguese State to regulate access to medically assisted procreation techniques ‘in such a way as to safeguard the dignity of the human person’, as is stated in its Art. 67 no. 2(e). But it took almost 10 years before the constitutional mandate was finally fulfilled: the law governing Medically-Assisted Procreation Law no. 32/2006, dated 26 July 2006 was enacted in 2006. According to its first version, although the use of medically assisted techniques to procreate was authorised (as long as certain requirements were met) surrogacy was not permitted in any circumstances. Another 10-year period elapsed before surrogacy was accepted by the Portuguese legal system: this happened with the enactment of Law no. 25/2016, dated 22 August 2016, which created many particular safeguards and envisaged the use of surrogacy as exceptional, and only possible when certain strict conditions were fulfilled.

    Article 3 of this law expressly referred to the need for regulation of surrogacy, stating that the government had to approve the corresponding Regulatory Decree of the abovementioned Law no. 25/2016 within 120 days after the date of its publication in the Portuguese Official Journal which was 22 August 2016. The deadline was not met as Regulatory Decree no. 6/2017 was published almost one year later, on 31 July 2017. As a consequence, the legal regime governing surrogacy only entered into force on 1 August 2017.

    Less than nine months later, on 24 April 2018, the Portuguese Constitutional Court has declared that rules of the statutory framework regarding surrogacy, as they were enacted in 2016, violated provisions of the Constitution of Portuguese Republic.

  • Israel

  • from THE REGULATORY APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 165-184

  • Summary

    GENERAL LEGAL FRAMEWORK

    LEGAL RULES RELATING TO SURROGACY

    Israel was the first country in the world to regulate surrogacy by legislation. The Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn Law) 1996 (hereinafter ‘the Surrogacy Law’) legalised gestational surrogacy agreements which fulfilled the conditions set out in the Surrogacy Law and received approval from a Statutory Committee (hereinafter ‘the Approvals Committee’), set up under that Law. The Surrogacy Law specifically allows for payments to be made to the surrogate mother to compensate her for her time and suffering and thus surrogacy in Israel is commercial. Whilst the scheme is widely considered successful, over the years it became clear that some aspects needed improving. As will be explained below, a recent amendment law made some improvements, but did not address all of the problems. The Surrogacy Law relates only to cases where the implantation of the embryo takes place in Israel. In recent years, for reasons which will be set out below, a growing number of Israelis have entered into agreements with foreign surrogates. Since Israeli law does not forbid this practice, it is not illegal. In the absence of legislative regulation, the procedure for determining the status of the children born as a result of such arrangements is governed by administrative guidelines, as modified by judicial decisions, which will be explained below.

    THE APPROVALS COMMITTEE

    Surrogacy arrangements have to be authorised by the Approvals Committee, set up under the Surrogacy Law. The Committee is appointed by the Minister of Health and includes two doctors with expertise in gynaecology and obstetrics; one doctor with expertise in internal medicine; a clinical psychologist; a social worker; a lawyer; and a religious cleric (according to the religion of the parties).

    The Surrogacy Law 5 provides that applications to the Committee have to include a draft surrogacy agreement, a medical opinion confirming that the commissioning mother is unable to carry a pregnancy or that pregnancy would involve a significant risk to health; opinions from doctors and psychologists as to the suitability of each of the parties to participate in the process; confirmation from a psychologist or social worker that the commissioning parents received appropriate professional advice, including in relation to other possibilities of parenthood.

  • England and Wales

  • from THE TOLERANT APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 115-134

  • Summary

    GENERAL LEGAL FRAMEWORK

    THE LEGAL FRAMEWORK FOR SURROGACY

    England and Wales is regulated by two key pieces of legislation: the Surrogacy Arrangements Act 1985, and the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’). Having said this, there has been a large body of jurisprudence built up by the courts in this area which has substantially affected the way in which this legislation is applied. In examining the English law, it is important to note that it does not regulate when, how, or by whom a surrogacy arrangement can be entered into. Rather, it regulates the effects of the surrogacy – how legal parenthood can be transferred after birth.

    While England has been lauded as a jurisdiction that is very permissive towards surrogacy, in truth, the legislative framework for recognising parenthood through a surrogacy arrangement is highly restrictive. Although it does provide a specific mechanism for transferring parental status from the surrogate to commissioning parents – unlike in so many countries where adoption laws have been co-opted to this purpose – the circumstances in which this can be granted are narrow.

    The opposition of the British government to surrogacy can be traced back to the Report of the Warnock Committee, which was set up in 1982 to inquire into the technologies of IVF and embryology. The Committee argued that surrogacy constituted an attack on the value of the marital relationship, as it introduced a third party into the process of procreation, which they believed should be confined to the ‘loving partnership between two people.’ They suggested that it was inconsistent with human dignity for a woman ‘s womb to be used for financial profit, and treated’ as an incubator for someone else ‘s child’ and that given the risks relating to pregnancy, no woman should be asked to undertake it for another person in order to earn money. Furthermore, the Committee felt that the relationship between mother and child was distorted by surrogacy and argued that it was degrading for a child to be treated as a commodity and ‘bought for money’.

  • Australia

  • from THE TOLERANT APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 85-104

  • Summary

    GENERAL LEGAL FRAMEWORK

    Surrogacy is specifically regulated in Australia. Australia is a federation in which most matters of family law are regulated nationally, but some issues including surrogacy and assisted reproductive technology are principally regulated by the states and territories. All six states and the Australian Capital Territory (‘ACT’) have legislation dealing with surrogacy. The laws in these seven jurisdictions are broadly similar in three respects. First, commissioning parents in altruistic arrangements can apply, post-birth, for a ‘parentage order’, transferring parental status from the surrogate parents to the commissioning parents. Second, the surrogate mother can enforce the commissioning parents ‘promise to reimburse her reasonable expenses associated with the arrangement. Third, commercial surrogacy is prohibited.

    Federal family law does not specifically regulate surrogacy, but is relevant because commissioning parents sometimes apply under federal family legislation for orders that they have parental responsibility for children born in surrogacy arrangements, declarations of parental status, or leave to adopt. Federal immigration and citizenship law is also relevant to international surrogacy arrangements.

    There is currently no legislation in the Northern Territory regulating surrogacy. Australian medical practitioners, including those in the Northern Territory, must adhere to the National Health and Medical Research Council's Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research.

    There is no specialised authority which oversees surrogacy nationally. Statutory authorities in Victoria and Western Australia have a role in regulating some surrogacy arrangements. In Victoria, registered assisted reproductive treatment providers can only carry out surrogacy arrangements that were approved before conception by the Patient Review Panel of the Victorian Assisted Reproductive Treatment Authority (‘VARTA’). This is only permitted in altruistic surrogacy cases. If the arrangement was commissioned with the assistance of a registered assisted reproductive treatment provider, a Victorian court can only make a parentage order if the Patient Review Panel approved the arrangement.

  • European Court of Human Rights

  • from THE INFLUENCE OF INTERNATIONAL COURTS
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 331-354

  • Summary

    INTRODUCTION

    The issue of how cross-border surrogacy should be regulated has been a significant strand of the present authors’ research for several years. The Nuffield Foundation funded them from 2010 to 2012 to work on this topic and the main fruit of that labour was a substantial edited book that set out how surrogacy was being dealt with in many legal systems and presented the arguments for a new hard law solution of a Treaty regulating cross-border surrogacy arrangements along the lines of the highly successful Hague Convention on Intercountry Adoption. As a follow up to that work the present authors have systematically analysed the law on cross-border surrogacy from a comparative perspective in Europe and have recently analysed how the European Court of Human Rights (‘ECtHR’) has decided cases where a cross-border surrogacy arrangement was involved. The most recent work considered the case of Paradiso and Campanelli v Italy at the stage when the Chamber had taken its decision and the decision of the Grand Chamber was pending. In this contribution the authors intend to analyse the Grand Chamber decision in Paradiso and Campanelli and to consider the possible use of international soft law to help move states closer to achieving the consensus needed to regulate cross-border surrogacy arrangements in a Hague Convention.

    FACTS OF PARADISO AND CAMPANELLI

    In 2010, Ms Donatina Paradiso and Mr Giovanni Campanelli (‘the applicants’ or ‘the commissioning parents’), both Italian nationals and a married couple, entered into a surrogacy arrangement with a Moscow-based clinic called Rosjurconsulting whom they paid € 49,000 for their services. A surrogate was implanted with two embryos on 19 June 2010 and she gave birth to a child in Moscow on 27 February 2011. On the same day the surrogate gave her written consent to the child being registered as the applicants’ son.

  • Taiwan

  • from THE PROHIBITIVE APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 377-396

  • Summary

    The legal approaches to surrogacy vary widely around the globe. In Asia, commercial surrogacy is prohibited in many countries, though in several jurisdictions surrogacy is merely unregulated. Taiwan falls into the latter group, despite legalising altruistic surrogacy being discussed for more than a decade. The legal vacuum on the issue forces infertile couples who wish to have their own biological child into the global commercial surrogacy market to seek a possible resolution. Challenges exist in seeking to reach a consensus in Taiwan over controversial aspects of regulating surrogacy and balancing the rights and interests of surrogates, would-be parents commissioning this service, and children born via surrogacy. This chapter discusses the legal and ethical concerns on legalising surrogacy. It first introduces the historical background, statistics and general legal framework on assisted reproduction in Taiwan. It then illustrates the prolonged legislative trajectory on surrogacy in Taiwan and analyses recent draft amendments relating to surrogacy, such as eligibility criteria for commissioning parents, and surrogates, surrogacy contracts, agencies, and the arrangement of legal parenthood. Finally, the chapter elucidates issues concerning international surrogacy arrangements and the socio-legal causes behind the debates over amendments on regulating surrogacy in Taiwan.

    GENERAL LEGAL FRAMEWORK

    HISTORICAL BACKGROUND

    Demand for assisted reproduction has been growing rapidly around the world as people seek to take advantage of the medical and technical advances in assisted reproductive technologies (‘ART’). Statistics published by the Taiwan Health Promotion Administration (‘HPA’) of the Ministry of Health and Welfare (‘MOHW’) demonstrate that in the past decades, the share of test-tube baby births as a percentage of overall births in Taiwan has risen from 1.38 per cent to 3.24 per cent, the equivalent of a rise from 2,500 to 5,800 infants. Since 1985, when Taiwan's first test-tube baby was successfully delivered at the Veterans General Hospital in Taipei, further debates and discussions in the Taiwanese society on legal and ethical issues of the application of ART, such as in vitro fertilisation (‘IVF’) and surrogate motherhood emerged. Even though the demand of assisted reproduction has been increasing, nonetheless, the process of legislative enactment in the jurisdiction to regulate surrogacy has never been smooth. In 1986, the Department of Health (‘DOH’, the former MOHW) issued ethical guidelines to regulate human assisted reproduction.

  • Australia: A Judicial Perspective

  • from THE TOLERANT APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 105-114

  • Summary

    INTRODUCTION

    I would like to provide a view from the Bench. Interestingly, that view may be different depending upon which Bench you are sitting both from an International perspective and from an Australian perspective given that Australia, like America, is a federation and state laws may, and indeed do, often differ from federal laws.

    The focus of this conference, different perspectives of surrogacy, is, in my mind, its great strength. It encourages of us all to see the same problem through different lenses, to see the issue of surrogacy from the perspective of different cultures and traditions, different professions and different goals. The issue may be approached completely differently if one is a scientist interested in human reproductive technology as opposed to an advocate for children's rights.

    However, at the centre of the conference is the bringing into existence of a child – an issue that goes to the heart of our humanity – it literally defines who we are – and must therefore be an issue for humanity as a collective as a whole.

    It will be no surprise that, from my perspective, what is critical is the best interests of the child, regardless of the manner in which that child was brought into existence. This is the focal point of any decision made by me as a judge notwithstanding a myriad of other matters to be considered.

    Australia is a signatory to the (almost) universally accepted Convention on the Rights of the Child (‘the CRC’). The child's inalienable and inviolate human rights are therefore part of the fabric of Australian law and central to how a judge in my court considers issues relating to children, especially in relation to international commercial surrogacy. In other words, there is an inescapable truth and an inescapable logic that makes the best interests of the child central to the decision-making process rather than issues of contracting rights, adult desires, or technological advances.

    The reality from the Bench is that the welfare of the child is at issue, and that must be the primary focus.

  • Singapore

  • from THE PROHIBITIVE APPROACH
    • By Terry Kaan, University of Hong Kong, Hong Kong SAR
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 397-416

  • Summary

    GENERAL LEGAL FRAMEWORK

    THE GENERAL LEGAL FRAMEWORK AND SOCIAL BACKGROUND

    Singapore has no legislation that deals directly with surrogacy by that name. But the lacuna is not an oversight. The Singapore Parliament is well aware of the issues, given that the formal regulation of surrogacy has been urged upon the government of the day in recent Parliamentary debates. This does not, however, mean that surrogacy is beyond the reach of regulation or formal law in Singapore. As will be explained later in this chapter, Singapore does however have a number of legislative enactments that, together with executive instruments having the force of subsidiary legislation, impose clear and enforceable legal restrictions on the conduct of surrogacy arrangements within Singapore. Further, some of these legal provisions have extra-territorial reach, and have the potential to affect surrogacy arrangements involving a party or parties having a sufficient connection to Singapore as defined by the law.

    It may be useful at this point to set out briefly the key features of the constitutional and legal framework in Singapore in order to understand the development of the regulatory regime for surrogacy in Singapore, and in particular, the impact of English common precedents on local judicial decisions. From 1819 to 1963, Singapore was a British colonial possession before its merger with the new state of Malaysia in 1963. In 1965, Singapore became an independent country after peaceful secession from Malaysia by mutual agreement. Like many former British colonies, it inherited a constitutional system of the Westminster model, but with an elected President replacing the monarch, and a unicameral Parliament instead of a bicameral one. More than half a century after ceasing to be a British Crown Colony, the English common law continues to play the dominant role in its constitutional and legal system.

    The habit of adherence to the English common law has deep historical roots some two centuries old in the form of the Second Charter of Justice 1826 by which the Crown decreed that English law should be applied to its new possessions in the Straits of Malacca, including Singapore. Formal legal links between the United Kingdom and Singapore continued after independence with the Judicial Committee of the Privy Council being constituted as the highest court of appeal within the legal system.

  • Questionnaire

    • By Jens M. Scherpe, University of Cambridge, England, United Kingdom; University of Hong Kong, Hong Kong SAR; University of Aalborg, Denmark, Claire Fenton-Glynn, University of Cambridge, England, United Kingdom
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 7-12

  • Summary

    GENERAL LEGAL FRAMEWORK

    1. Are there specific legal rules dealing with surrogacy in your jurisdiction (especially: is there a specific statute or merely an administrative/court practice)?

  • – Please provide information including the general constitutional/legal framework where appropriate.

  • – If there are no specific legal rules, is surrogacy nevertheless regulated through other mechanisms (e.g. medical boards/professional bodies)?

    • 2. Is there a specialised authority set up to oversee surrogacy in your jurisdiction?

    If so, please provide information concerning the role, and powers, of this authority.

    3. What is the reasoning behind the law/rules on surrogacy (or lack thereof) in your jurisdiction?

    Please describe the historic development leading up to the current law, and any significant legislative or judicial debates.

    Please note if there is any distinction drawn between traditional and gestational surrogacy.

    4. Please give statistical information (where available), concerning:

  • – (estimated) number of surrogate births in your jurisdiction;

  • – (estimated) number of surrogacy arrangements undertaken by citizens in another jurisdiction;

  • – number of clinics in which surrogacy can take place;

  • – any other relevant/interesting statistical information.

    • SURROGACY ARRANGEMENTS IN GENERAL

    1. Are surrogacy contracts legal in your jurisdiction? Are they binding/ enforceable?

    If so, please provide information concerning the terms that can, and cannot, be included.

    2. Can a surrogate be remunerated for her participation in the surrogacy arrangement?

    In particular:

  • – Are there guidelines concerning appropriate levels of payments? If so, who are they provided by?

  • – Are there any limits on payments?

  • – How are payments to the surrogate monitored?

    • Please provide any statistical information concerning payments made to surrogates in your jurisdiction.

    LEGAL PARENTHOOD AT THE TIME OF BIRTH

    1. Who are the legal parents of a child born through surrogacy at the time of birth?

    How does this relate to the way in which your jurisdiction views parenthood in general, and motherhood in particular?

    2. Will there be any indication on the birth certificate, or other document, that the child was born as a result of a surrogacy arrangement?

    3. Is information concerning the surrogate – as the person who gave birth – preserved by the relevant authorities if she is not the legal mother of the child?

  • Spain

  • from THE PROHIBITIVE APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 59-82

  • Summary

    GENERAL LEGAL FRAMEWORK

    The first assisted reproductive technologies (‘ART’) regulation in Spain was Act 35/1988 of 22 November (BOE no. 282, 24 November 1988). This was followed some years later by Act 14/2006 of 26 May on assisted human reproductive technologies (BOE no. 126, 27 May 2006), which persisted in denying surrogacy arrangements any legal effects. Article 10.1 declared commercial or altruistic gestational surrogacy arrangements ‘fully null and void’, and thus these arrangements have typically been considered to be contracts with unlawful purpose (Arts 1271 and 1275 of the Spanish Civil Code). The main consequence of the nullity is that any child's legal mother is the woman who gave birth to it (Art. 10.2 of Act 14/2006), in accordance with the Roman law principle mater semper certa est.

    Spain has become one of the top ‘fertility tourism’ destinations for couples and single women from other European countries. Factors such as permission to use third-party gametes; ‘compensation’ policies fostering gamete surplus; donor anonymity; non-exclusion of unmarried and lesbian couples; and – in the private sector – lower costs and shorter waiting lists compared to other Member States which also have liberal ART regulations all go some way to explaining this phenomenon. However, Spanish citizens themselves need to leave Spain and visit other legal systems when matters of surrogacy are concerned. Popular destinations so far have been – in this order – the United States (US), Ukraine, India, Mexico and Thailand. Although providing official data on a reality which takes place outside the control of the law is extremely difficult, there is some evidence which leads to the conclusion that cross-border surrogacy is an ever-increasing phenomenon in Spain, often encouraged by private agencies and intermediaries. It is estimated that around 1,000 children with Spanish commissioning parents were allegedly gestated in this way and born in the US in 2003. According to data from the Spanish Consulate in Los Angeles, the birth rate among Spanish nationals resident in this consular territory in 2008 was 50.01 per 1,000 residents, which is five times higher than that among Spanish nationals residing in Spain that same year (9.8 per 1,000). This rate can only be explained because the Consulate has allowed for the registration of sons and daughters of non-residing couples of different sex.

  • Iceland

  • from THE REGULATORY APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 259-278

  • Summary

    GENERAL LEGAL FRAMEWORK

    BAN ON SURROGACY IN ICELAND

    Popular Icelandic folklore has numerous stories of women bearing children and giving them to others to raise, undoubtedly for different reasons and under various circumstances. The emergence and development of the science of human biology, reproduction and genetics has steadily increased the focus on how and to what extent reproductive technologies should be used to help persons desiring to create a family.

    The use of artificial technologies in Iceland has been growing steadily for the last decades. Though a general legal framework was lacking, procedures using artificial insemination started in 1980 and in vitro fertilisation in 1991. The Act on Children from 1992 incorporated articles on paternity for children born through the use of artificial fertilisation. In 1996 Iceland passed the Act no. 55/1997 on Artificial Fertilisation and use of Human Gametes and Embryos for Stem-Cell Research. This Act sets out certain criteria for the use of different reproductive technologies, for example opened up the possibility of egg donation. The Act also marks the first formal discussion on whether or not to allow for the use of surrogacy in Iceland.

    According to Art. 5 of the Act on Artificial Fertilisation, surrogacy is prohibited in Iceland. The Act defines surrogacy as ‘artificial fertilisation performed on a woman who intends to carry a child for another woman, and has agreed before the pregnancy to give up the child immediately after the birth.’ The preparatory comments on the issue of surrogacy were brief, first and foremost underlining that various ethical issues surround the question of allowing surrogacy. The preparatory comments specifically mention the issue of the maternity of the child, particularly after the use of egg donation, and emphasise the mater semper certa est (mater est) principle as the most widely acknowledged. The minority of the Parliamentary Standing Committee dealing with the Bill in 1995 issued a separate opinion agreeing with the majority on the ban on surrogacy while emphasising that surrogacy raised very many ethical and legal questions and particularly stated the view that commercial surrogacy was the worst form of female repression possible.

Page 33 of 82