Photo: Pescanik
Photo: Pescanik

If you thought that today you can find anything online, you’re sadly mistaken. Soon, as announced by the law professors, members of the ministry of justice taskforce for the development of the Civil Code, you’ll be able to buy a living female uterus which will bear your baby. To this purpose, the Group coined the term “birthing mother”, because the term “surrogate” was obviously too rough for them. All of this is available for a ”symbolic fee” of 8 to 15 thousand euros, four times cheaper than in Ukraine and ten times cheaper than in America. Serbia, a land of eternal gray economy, is getting in line to become “the world center of surrogate motherhood”. And now that Asian countries, like Thailand, Cambodia, India, and Nepal, have tightened their laws, it has a good chance of succeeding.

If we look at the current state of affairs in Serbia, which is an “investment heaven” for companies which force women to wear adult diapers during working hours to avoid going to the toilet, which they are allowed to use only once a day during their periods, and then only if they wear a red tape around their arms – it’s not realistic to expect better conditions for “birthing mothers”. They will also be treated as employees by their employers – future parents, intermediaries, lawyers, gynecologists and the state.

Since the chain of “stealing” babies from hospitals by doctors, nurses and others, which allowed rich and influential people to become parents, has hopefully been broken, this provides a new chance to revive and legalize this highly profitable business. The taskforce’s draft which only allows couples and single persons who are citizens of Serbia and can’t have children biologically to use surrogate mothers, will surely be disputed as a form of discrimination, and also eluded by all those involved in this business, because it doesn’t make sense to miss a chance to make a few euros out of the difficult social and economic status of surrogate mothers.

Professor Orlic, who was my professor of obligatory law 20 years ago, said in an interview with Politika that the “birthing mothers” will sign a Contract of birthing for another party. He didn’t specify whether this contract will be like contracts on sale or lease, or not, such as contracts on gifts or interest-free loans. He also didn’t specify the object of the contract, i.e. the thing that is being leased, bought, or given.

The current Law on obligations says that the contractual obligation may consist of giving, acting, omission, or suffering, but also that the object of the obligation is inadmissible if it is contrary to the compulsory regulations, public order or good customs. The explanation for the omission of the provisions of international law or ratified international treaties may be that the Law on Obligations was adopted in 1978, before SFRY ratified the UN Convention on the Elimination of All Forms of Discrimination against Women (1981) and the Convention on the Rights of the Child (1990).

After ratifying the European Convention for the Protection of Human Rights and Fundamental Freedoms in 2003, Serbia stated in the Constitution of 2006 that no one can be held in slavery or a position similar to slavery, that any form of trafficking in human beings is prohibited, that forced labor is forbidden and that sexual or economic exploitation of a person in a disadvantaged position is considered forced labor.

Perhaps the women of Serbia expect members of the ministry of justice taskforce to respect and be familiar with the provisions of the Constitution and ratified international documents. However, taskforce member and professor of family law Olga Cvejic Jancic explained in Politika that the contract cannot establish a reward for giving birth for another party, but only a ‘remuneration of reasonable costs related to bearing and birthing a child’, such as a loss of earnings, medical services, transportation, accommodation and nutrition of a surrogate mother. Future parents will support their surrogates during pregnancy. They will make sure that they eat quality food, receive proper medical care, and have good living conditions. The only question she didn’t answer is whether the parents will still pay if the child dies at birth or if it is born with disabilities, that is, whether they will bear the cost of funeral or treatment of a surrogate mother in the event of complications from pregnancy or childbirth. The members of the Taskforce obviously do not know that Serbia still belongs to the group of countries with a high rate of mortality of women and children at childbirth. Perhaps they weren’t even interested in this, because they didn’t plan for future parents to pay if the object (i.e. the baby) is not delivered in accordance with the “specifications”, while the surrogate mother is likely to bear the risk of the work herself.

In order to legalize the sale of babies, according to Professor Cvejic Jancic, the Taskforce for the development of the Civil Code has foreseen that the contract birth for another party must be certified by a judge who is obliged to determine whether all prescribed conditions have been fulfilled and warn the contracting parties of all consequences of the contract, “and in particular that the woman who gave birth to the child will not be considered a child’s mother”. She states that when the child is born, the ‘intended’ parents will be enrolled in the registries as the child’s parents – the legal mother and the father of the child.

By paying a reasonable fee to the surrogate mother, or to her “pimp” (mediation agency, violent partner, human traffickers…), as well as court and administrative fees, Serbia will, in contravention of the constitutional provisions, legalize the trafficking of children and the exploitation of women. But this is not a problem for Serbia, because the Constitutional Court already doesn’t decide on submitted initiatives to assess the constitutionality of laws that violate the rights of children and citizens of Serbia (the Law on Financial Support for Families with Children, the Law on Free Legal Aid, the Regulation on Measures of Social Inclusion for beneficiaries of financial social assistance).

It’s interesting that the ministry of justice decided ten years ago that Serbia should once again adopt the Civil Code, modeled after France and Austria, after more than 70 years. Whose decision it was to make the Family Law Book IV of this future Code, which will have over 2,800 articles, is unclear, if we know that the ministry of labor, employment, veterans’ and social affairs is responsible for the adoption of the Family Law. This ministry has been working on amendments to the Family Law for years, and several days ago, the Draft Law on the Rights of the Child was published. While the ministry of labor, employment, veterans’ and social affairs keeps listing children’s rights which will have to be respected in the future, the ministry of justice is preparing to violate all of them.

France and Austria, which were the role models for initiators of the idea of adopting the Civil Code, prohibit surrogate motherhood. France does not allow entry into the registries of a child which was “bought” abroad, stating that the surrogate contracts are null and void (they do not produce a legal effect) because they are contrary to the principles of the inalienability of the human body. In the case of Meneson v. France, the European Court of Human Rights found that the State of France had a legitimate aim in interfering with family life as it sought to achieve two of the legitimate aims set forth in Article 8 of the Convention – the protection of health and the protection of the rights and freedoms of others. This means that no one can use some of their human rights if it endangers the rights of others. It is important to point out that being a parent is not a human right. The European Court has therefore concluded that the non-registration of ‘children born by a surrogate mother abroad’ did not lead to a violation of their right to respect for private and family life, as children could live with their parents in France as foreign nationals. However, although the European Court of Human Rights has found that there has been a violation of Article 8 of the Convention in respect to the non-recognition of children’s rights to their identity (since children are not guilty of the actions of adults, cf. authors), France sent a clear message to its citizens trying to bypass the law.

I must admit that I’ve never heard of a mother from Serbia who bought a child from a surrogate mother from abroad, as stated by the members of the Taskforce. If there is one, I am legally interested in how this “bought” child is registered in the registers of citizens of Serbia. Of course, nothing should surprise us in Serbia, but I am wondering why the members of the Taskforce, if they had already heard about these cases, did not report any suspicion that a crime was committed. It seems that members of the Taskforce do not consider it to be a criminal offense of child trafficking or a violation of new paragraph 2 of the criminal act of confiscating newborns from their parents because they probably believe that these parents did not buy or take away “someone else’s”, but “their own” child. And, anyway, the baby is only an “object of a sales contract” over which the right of ownership should be established.

The author is a lawyer and a member of Autonomous women’s center.

Translated by Marijana Simic

Pešč, 02.07.2019.