Сурогатство - нови изазов за међународно приватно право
Surrogacy - a New Challenge for Private International Law

Author(s): Dragana Damjanović
Subject(s): Law, Constitution, Jurisprudence, International Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Child rights;Surrogate mother;Cross-border surrogate arrangement;Legal parenting;Recognition of a foreign court decision;The Hague Conference;The best interests of the child;
Summary/Abstract: It is the right of every child to know, as far as possible, his or her parents and to enjoy their care. However, the development of medical science, as well as changes in established family patterns, have brought uncertainty into the issue of establishing, acknowledging and denying legal parenting. In this regard, in this paper, the author considered surrogacy, and parenting which arises as a consequence of the surrogate arrangement. The author has come to the conclusion that cross-border surrogacy arrangements are very common, which is the consequence of the fact that many countries do not allow birth for another, allow only altruistic surrogacy motherhood or, simply, because surrogate arrangements are cheaper abroad. Either way, this leads to the emergence of a foreign element and raises many questions: jurisdiction of the courts to decide the legal consequences of a surrogate arrangement, choice of the applicable law for legal parenting of the child and status-related issues of the child, the issue of recognition of foreign judicial decisions on legal parenting, recognition of foreign public documents, etc. Regulating this legal situation is within the jurisdiction of each country’s domestic legislation, but the author believes that the time has come to unify the rules, all with the aim of protecting the child. In this regard, the work of the Hague Conference on Private International Law on the Parenting/Surrogacy project was presented, in particular the proposals were contained in the last Report of the October/November 2019 meeting of the Expert’s Group. In addition, the author also examines a study by the University of Aberdeen team dedicated specifically to the international unification of a cross-border surrogate arrangements. In order to give the reader a better understanding of the complexity of the situation in the cross-border surrogate arrangement, a number of examples of case law are presented, including the case law of the European Court of Human Rights. At the end of the this paper, the author draws attention to the situation in Bosnia and Herzegovina, giving his opinion regarding the recognition of foreign court decisions on legal parenting.

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