In the absence of a genetic connection – Newspaper Kommersant No. 42 (7487) dated 03/14/2023

Jason and Anastasia Kuusk, a couple from Australia, who became victims of a high-profile “doctors’ case”, reached the Constitutional Court, trying to rescue their children from the orphanage, born by a surrogate mother and with the help of donor eggs. At first, the twins were refused to be handed over to them for the period of the investigation of the “doctors’ case”, and then completely, citing the lack of a genetic connection with one of the parents. Now the Constitutional Court must decide whether this approach is consistent with the country’s Basic Law: the applicants complain about discrimination in access to medical care, as well as a violation of the right to family protection.

The Constitutional Court accepted the complaint of the spouses from Australia about the violation of their rights by the provisions of the law on the fundamentals of health protection, regulating issues of surrogacy. This was reported on the website of the court. The applicants challenge the law in the part that allows the guardianship authorities to refuse to transfer parental rights to the child to a married couple if the newborn does not have a genetic connection with one of the parents. This is possible, for example, when donor cells are used to obtain an embryo: in this case, the genetic material of a woman who wants to officially become a mother is not used.

The applicants are the spouses Jason and Anastasia Kuusk, the lawyer Dmitry Bartenev representing them from Onegin Group confirmed to Kommersant (only their initials are indicated on the CC website). In 2019, they used the services of the Rosconsulting agency and the European Medical Center in Moscow to treat infertility through surrogacy using donor eggs from another woman. In March 2020, the surrogate mother gave birth to twins – a boy and a girl. However, due to anti-epidemic restrictions, the applicant was denied entry to Russia, and the registration of parental rights by the applicants was delayed, and the newborns ended up in an orphanage. At the same time, the Investigative Committee began to investigate the high-profile “case of doctors.” Recall that law enforcement officials accuse representatives of a number of medical organizations providing surrogate motherhood services to foreigners of human trafficking. In the field of view of the security forces were, among other things, Rosconsulting and the European Medical Center. Therefore, although the Kalininsky District Court of Ufa recognized parental rights for the spouses, the guardianship authorities refused to transfer the twins to their parents, saying that they would remain under the guardianship of the state during the investigation of the criminal case, and the application for the transfer of children to parents could be considered only after the end of investigative actions. In 2021, the applicants resumed their attempts to rescue the children, but this time the Simonovsky District Court refused them, moreover, with reference to the contested provisions of the law on health protection – according to the court, they do not provide for the possibility of using surrogacy in combination with the use of donor cells. Simply put, according to the court, a child born with the help of a surrogate mother must have a genetic connection with both parents, Mr. Bartenev explains, otherwise both lose their parental rights.

The applicants believe that the disputed norm is not formulated clearly enough, and such an interpretation by the courts unreasonably deprives the right to receive medical care of those families in which a woman cannot bear a child for medical reasons and needs to use female donor cells. What is happening puts them in an unequal position – for example, with single women who are legally allowed to take advantage of surrogacy using male donor genetic material. It also violates the applicants’ right to family protection and deprives children born in this way of the right to know their parents and be brought up in a family.

Meanwhile, according to the complaint, according to the Russian Association for Human Reproduction, in surrogate motherhood programs, the share of cycles of assisted reproductive technologies using donor eggs in different years ranges from 20% to 40%. Mr. Bartenev notes that until a certain time, there were practically no issues with the adoption of such children, and the problems that the Kuusk spouses had could be associated with a criminal investigation. However, there is already a precedent when the recognition of parental rights with reference to the lack of a genetic connection with both parents is denied to Russians, the lawyer knows. Moreover, with the introduction in 2022 of the ban on surrogacy for foreigners, the wording of the law regarding the use of donor cells has also been tightened. Now the Constitutional Court must say whether such a ban on the use of donor cells by one of the spouses is permissible, the representative of the applicants hopes.

The requirement for both parents to have a genetic connection with the child is “sucked out of thin air” and contradicts the current legislation, lawyer Igor Trunov, who represents the interests of several parents at once in cases of surrogate motherhood, is sure. Based on this logic, the patient must have all his own genetic material – then why should he be treated at all, why are donor banks created, the expert is perplexed. In his opinion, the main reason for the refusals of the courts is the unwillingness to allow the adoption of children by foreigners, so the courts refuse them under various pretexts. He recalls that the ban on surrogate motherhood for foreigners was introduced after criminal cases began against the doctors who organized such procedures. Now, according to the expert, Russian medical centers have begun to play it safe and refuse even Russian couples if they cannot provide their own genetic material.

Anastasia Kornya