Assisted reproductive technologies: non-obvious limits of protection

Since the adoption of the Russian Constitutional Court’s Decision No.756-O of 20 April 2023, a contentious issue has persisted in the Russian legal system concerning the possibility of using partial donation in a surrogacy program. In the present case the applicants (foreign nationals) challenged the provisions of Article 55(9) of Federal Law No.323 of 21 November 2011 “On the fundamentals of health protection of citizens in the Russian Federation”. At the time of the appeal, the contested norm stipulated that “surrogacy is the carrying and birth of a child (including premature birth) under a contract concluded between a surrogate mother (a woman carrying a foetus after transfer of a donor embryo) and potential parents whose sex cells were used for fertilisation, or a single woman for whom carrying and birth of a child is impossible for medical reasons”. The Constitutional Court of the Russian Federation initially accepted the applicants’ complaint, but then dismissed the case, having found no reason to believe that this very norm was the basis for refusing to satisfy the applicants’ legal claims for the transfer to them of children born under the surrogacy programme, given that the genetic material of only one of the parents (the father) was used in the programme. The article attempts to understand the reasons for this decision, the legal context within which the events unfolded, the substantive and procedural aspects contributing to this decision, as well as its possible consequences, taking into account the current regulation, which applies to Russian rather than foreign patients, but is still not entirely consistent. The authors draw attention to the risks of uncertainty and overly restrictive approaches in such a sensitive area as reproduction, analyzing in more detail the problem of discrimination on the basis of sex and health status, as well as the issue of preserving and strengthening family ties and the right of the child to family upbringing.