Surrogacy in Slovakia
In determining parenthood, Slovak family law is based on the Roman principle of mater semper certa est, pater incertus, ie the mother is always certain, the father is. In this principle, motherhood is gained only by the fact of birth and there are no other options for recognising the mother of the child. The reasoning behind this principle is that by providing legal certainty of motherhood, the child has at least one parent certain at the time of his/her birth. In accordance with this principle, motherhood is defined exclusively by childbirth, as a single, separate legal fact.
According to article 82 of Slovakian Family Act (Act No 36/2005 Coll. on family and on amendments to certain acts) ‘The mother of the child is the woman who gave birth to the child’. The system automatically registers the women who gave birth to the child as the mother of the child on the birth certificate of the child.
There are situations where the mother is not registered on the birth certificate of the child, such us secret unknown births where the mother brings the child to ‘rescue nests’ and leaves the child there. ‘Rescue nests’ are places usually located in hospitals where a mother can spend time anonymously with their child. She rings the bell while leaving and the medical staff will take the child. Slovakian law provides, under article 83 para 1 of Family Act:
‘If there is any doubt as to who the mother of the child is, the mother will be determined by the court on the basis of the facts found about the birth of the child.’
In cases of surrogate motherhood, the legal solution in practice is the adoption of the child by the biological mother from the women registered as a mother of the child, namely the surrogate mother. Following the adoption, the adoptive parents have the same rights and duties as if they had not used a surrogate.
For the adoption to be lawful, the consent of the women registered on the birth certificate as mother is necessary. The duty of the surrogate mother to give consent to the biological mother is generally stipulated in the surrogacy agreement. Practical problems arise where the surrogate mother does not want to hand over the child to the biological mother or in cases where the biological mother does not want to take care of the child due to some health issues or other reasons. In both cases the child is in the middle of this ‘battle’ and the principle of the best interest of the child shall prevail.
In regard to the validity of surrogacy agreements in Slovakia, article 82 para 2 of Family Act stipulates that any agreements which are contrary to the principle mater semper certa est are null and void in Slovakia. The second article which is used is article 39 of the Civil Code which renders invalid any act which, in its content or purpose, contradicts the law or circumvents it or transcends good morals. Finally, Slovakian law provides that the subject of a private contract cannot be a human being. The barriers to surrogacy agreements in Slovakia are thus very high.
The Slovakian District Court of Trnava ruled in one case on the adoption of a minor. The case is interesting in that the information about the method of procreation of a minor child is absent from the case report. The wife of the biological father of the child subsequently filed an application for the adoption of the child and the Trnava District Court granted her request. It appears that the Trnava District Court placed great importance on the fact that the couple were married and what this would mean for the child’s welfare.
Another issue which often arises is the name and the surname of the child. The surname of the child based on Slovakian law in cases where the mother is single and there is no father registered before the birth of the child, is the mother’s surname. Where the fatherhood of the biological father is registered before the child is born, the child will take the surname agreed by the parents.
Maternity leave for surrogate mothers is also a difficult issue. Slovakian law provides that maternity leave starts when the women is pregnant which means the surrogate mother starts the maternity leave. After giving the child to the biological mother, she shall continue with the maternity leave. This has various implications, depending on the terms of the surrogacy agreement and when the commissions parents take over. According to para 169 part 1 of the Slovakian labour code:
‘A woman and a man who, on the basis of a valid decision of the competent authority, took the child into care replacing the care of parents entrusted to him by the decision of the competent authorities for later adoption or foster care, are also entitled to maternity leave and parental leave, or a child whose mother has died.’
Generally speaking, the biological mother after taking care of the child may take the maternity leave. The jurisprudence in Slovakia is in the line with the case law of the CJEU. In cases C-167/12 and C-363/12, the CJEU held that a refusal to provide paid leave equivalent to maternity leave to a female worker who, as a commissioning mother has had a baby through a surrogacy arrangement, does not constitute discrimination on grounds of sex. The situation of such a commissioning mother as regards the grant of adoptive leave is not within the scope of directive 2006/54/EC.
In respect of international surrogacy involving Slovakian parents, the Slovakian courts look to the principles of international law, in particular the Act on Private and Procedural International Law. Based on article 23 of the Act:
‘… the determination (finding or denial) of parenthood is governed by the law of the State of the child's birth. If a child who has acquired Slovak citizenship by birth, is born and lives abroad, the determination (finding or denying) of parenthood is governed by the law of the state in which the child has his or her habitual residence. If the child lives in the Slovak Republic, parenthood can be determined (ascertained or denied) under Slovak law, if it is in the best interests of the child. It is sufficient for the recognition of parenthood to be valid if it takes place under the law of the State in which the recognition took place.’
These rules applies in relation of the substantive law.
If, in a particular case, a surrogacy agreement has been concluded which is considered by the foreign substantive applicable law to be valid, it is necessary to deal with the question of whether the Slovak judicial authorities are obliged to apply such a foreign law in the proceedings on the determination of parenthood. In accordance with international law principles, Slovakia is not required to recognise an order which contradicts the public order of the country. This applies both to the foreign law applied in making the order and to recognition and enforcement of the order itself. The child’s best interests is the guiding principle, subject to the public order exception.
In this respect, Slovakia is in line with the jurisprudence of the ECtHR. Menneson v France and Labasse v France are examples of the ECtHR looking at the public order exception. The ECtHR highlighted the importance of biological parenthood as part of a child’s identity and made clear that it is not in the best interests of the child (and is also potentially a breach of the parents’ rights) to be deprived of a legal relationship of this nature, where the parent and/or the child demand full recognition. Further, in the case of Paradisso and Campanella v Italy the EtCHR held that a child born by surrogacy abroad should enjoy protection of the right to family life even though the surrogacy agreement was obtained fraudulently, against payment, without genetic link and after a very short period of cohabitation. These cases narrow the public order exception and it is difficult to envisage circumstances in which it might apply.
Conclusion
Surrogacy as a method of assisted reproduction is not explicitly prohibited in Slovakia, but the legislator, by anchoring the absolute invalidity of surrogacy agreements in the Family Act which regulates parenthood, provided for an explicit prohibition of contractual modification of the legal presumption of maternity and thus excluded the contractual disposition of the child’s personal status.
However, the Slovak courts have made clear in certain circumstances that it foreign surrogacy agreements should be recognised provided they do not infringe public order. As the ECtHR has made clear, this is a narrow exception which is only likely to apply very rarely.