The court retired from the meeting – Kommersant

The Constitutional Court (CC) terminated the previously initiated proceedings in the case of surrogate motherhood, so as not to unwittingly “assistance in the effective completion of the transaction for the sale of children.” This is stated in the ruling published on the website of the court on the complaint of spouses from Australia who became victims of the high-profile “doctors’ case”. The expert notes that this is the rarest case when the Constitutional Court refuses to consider a complaint that has already been accepted for consideration.

As previously reported by “Kommersant”, in March of this year, the Constitutional Court accepted for consideration the complaint of the spouses Jason and Anastasia Kuusk. 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, but due to anti-epidemic restrictions, the applicants were denied entry to Russia. As a result, the registration of parental rights was delayed, and the newborns ended up in an orphanage.

At the same time, the Investigative Committee accused representatives of a number of medical organizations providing surrogacy 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.

The guardianship authorities refused to transfer parental rights to the children to the Kuusk spouses, citing an investigation.

In 2021, the Simonovsky District Court of Moscow refused to transfer children, and with reference to the law on the basics of health care: according to the court, it does not provide for the possibility of using surrogate motherhood in combination with the use of donor cells, that is, children must have a genetic connection with both parents.

It was this interpretation of the law on the protection of the health of citizens (in the no longer valid version – the new one generally prohibits foreigners from using surrogate motherhood) that the applicants challenged in the Constitutional Court. They argued that this puts them in an unequal position, for example, with single women who are legally allowed to take advantage of surrogacy using male donor material, and also deprives children born in this way of the right to know their parents and be brought up in a family.

The Constitutional Court accepted the complaint for consideration, but after that it received information from the ICR that, although the investigation of the case of trafficking in human beings had not yet been completed, the court verdict against one of the accused “established the fact of a transaction for the sale of these children, involving their transfer applicants for a monetary reward,” the Constitutional Court’s ruling says. In the context of this information, the content of the court decisions in the applicants’ case acquires a new meaning, the Constitutional Court considers: the reason for the refusal was not the contested norm of the law at all, but the lack of information about the genetic mother of the children. “It is this fact, in conjunction with other circumstances related to the birth of these children, in the context of the investigation of the criminal case on the sale of newborn children under the guise of using surrogate motherhood, that was regarded by the courts as a circumstance preventing the transfer of children,” notes the Constitutional Court. In such conditions, checking the rule on the admissibility of using donor eggs in surrogate motherhood during the treatment of infertility of a married couple would mean checking this legal provision in the order of abstract normative control, which the Constitutional Court is not entitled to do at the request of citizens. In addition, the court fears that, when reviewing the applicants’ case, such a decision could “involuntarily contribute to the effective completion of the transaction for the sale of children”.

Lawyer of the Center for Constitutional Studies Alexander Kalva notes that this is the rarest case when the Constitutional Court terminates proceedings on a complaint that has already been accepted for consideration.

In addition, the decision of the court in a criminal case, which did not even enter into force, became the basis for this, he notes. Of course, the rejection of the definition of the COP will further strengthen such a decision, the expert warns. In his opinion, the applicants and children born with the help of a surrogate mother, who have been deprived of the opportunity to live and be brought up in a family for more than three years, will suffer the most from the conclusions of the Constitutional Court. There is hope that this decision will not affect the regulation of surrogacy issues for Russians, but for foreigners who once used surrogacy in Russia, the definition of the Constitutional Court carries considerable risks, the lawyer adds.

Lawyer Igor Trunov believes that in the “doctors’ case” there was a substitution of concepts: the provision of medical care for the treatment of infertility was qualified as an illegal deal.

“If you approach the matter in this way, then any extracorporeal operation can be regarded as human trafficking,” he adds. The expert calls the refusal of the Constitutional Court to check the controversial law “strange”, but hopes that the issue is not yet closed. “We are now also preparing a complaint to the Constitutional Court on behalf of an Austrian citizen, to whom the surrogate mother refused to give the children, but instead transferred them to an orphanage,” the lawyer said. In this case, there is no criminal deal, but the children are still not given to their own father, so there is every reason to raise the issue before the Constitutional Court again, Mr. Trunov emphasizes.

Anastasia Kornya