Volume 19, Issue 60 (4-2025)
MLJ 2025, 19(60): 360-376 |
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Asadinejad S M, Keshavarz Alavi H, Asadinejad S M. The Status of Surrogate Mother's Rights in Case of Fetal Death. MLJ 2025; 19 (60) :360-376
URL: http://ijmedicallaw.ir/article-1-1853-en.html
URL: http://ijmedicallaw.ir/article-1-1853-en.html
1- Department of Law, Ahrar Institute of Technology and Higher Education, Rasht, Iran.
2- Department of Law, University of Guilan, Rasht, Iran
2- Department of Law, University of Guilan, Rasht, Iran
Abstract:
Background and Aim: Being a father or mother is a unique feeling, especially in infertile couples who have been deprived of this divine gift for a long time. Infertility is the absence of pregnancy in a woman, at least one year after the start of married life, despite having regular sex and not using contraceptive methods. Surrogate mother means the use and exploitation of a third party's uterus (another woman) for the implantation of sperm and its growth during pregnancy and finally handing over the resulting child to the owners of the sperm. This procedure has become very common nowadays, so that many families are willing to do this with full satisfaction and it seems that laws should be formulated to organize this emerging situation. But the question is, what is the status of the surrogate mother's rights in the event of an abortion during surrogacy? The answer to this question depends on the nature of the surrogacy contract, which will be discussed briefly.
Method: This research is written in a descriptive-analytical way by considering, reviewing and analyzing existing legal sources such as books, articles and laws and regulations.
Ethical Considerations: In all stages of writing the present research, while respecting the originality of the text, honesty and trustworthiness have been maintained.
Results: Regarding the permissibility or impermissibility of transferring a fetus to the womb of a foreign woman, many Imami jurists have given a positive opinion and considered the contract valid. This contract is compatible with some specific contracts, including rental contracts. However, it is the joint will of the parties that determines the type of contract, in compliance with the legal conditions. If we assume that the surrogate mother is a special hireling, the rental contract concluded will not be invalidated by the death of the fetus. Rather, from the moment of the abortion, if the surrogate mother was not at fault, she was not responsible and was entitled to reward for her actions until the moment the act was performed. And from the time of loss of benefit, the contract is dissolved and the surrogate mother is not entitled to anything except until the time of the miscarriage.
Conclusion: From this research, we learn that because the surrogacy contract is traditionally a lease concluded upon the death of the fetus, the contract between the parties is terminated upon the death of the fetus. According to Articles 481 and 483 of the Civil Code, the contract is void for the remaining period and the surrogate mother cannot demand payment for the remaining days of the contract. Also, the expenses during pregnancy, including medical expenses and expenses related to the care of the fetus, are the responsibility of the employee based on the completion of the necessary preparations. Unless the parties to the contract have made a commitment to the contrary or custom is contrary to it. Regarding the costs associated with the problems and hardships resulting from abortion, taking into account the absence of fault, abuse and negligence on the part of the legal parents And because these kinds of problems and issues were also envisioned in the assumption of childbirth And the surrogate mother entered into the contract with knowledge of these issues, it was the responsibility of the hired worker And she cannot ask for anything more.
Please cite this article as:
Asadinejad SM, Asadi nejad SM, Keshavarz Alavi H. The Status of Surrogate Mother's Rights in Case of Fetal Death. Medical Law Journal. 2025; 19: e24
Method: This research is written in a descriptive-analytical way by considering, reviewing and analyzing existing legal sources such as books, articles and laws and regulations.
Ethical Considerations: In all stages of writing the present research, while respecting the originality of the text, honesty and trustworthiness have been maintained.
Results: Regarding the permissibility or impermissibility of transferring a fetus to the womb of a foreign woman, many Imami jurists have given a positive opinion and considered the contract valid. This contract is compatible with some specific contracts, including rental contracts. However, it is the joint will of the parties that determines the type of contract, in compliance with the legal conditions. If we assume that the surrogate mother is a special hireling, the rental contract concluded will not be invalidated by the death of the fetus. Rather, from the moment of the abortion, if the surrogate mother was not at fault, she was not responsible and was entitled to reward for her actions until the moment the act was performed. And from the time of loss of benefit, the contract is dissolved and the surrogate mother is not entitled to anything except until the time of the miscarriage.
Conclusion: From this research, we learn that because the surrogacy contract is traditionally a lease concluded upon the death of the fetus, the contract between the parties is terminated upon the death of the fetus. According to Articles 481 and 483 of the Civil Code, the contract is void for the remaining period and the surrogate mother cannot demand payment for the remaining days of the contract. Also, the expenses during pregnancy, including medical expenses and expenses related to the care of the fetus, are the responsibility of the employee based on the completion of the necessary preparations. Unless the parties to the contract have made a commitment to the contrary or custom is contrary to it. Regarding the costs associated with the problems and hardships resulting from abortion, taking into account the absence of fault, abuse and negligence on the part of the legal parents And because these kinds of problems and issues were also envisioned in the assumption of childbirth And the surrogate mother entered into the contract with knowledge of these issues, it was the responsibility of the hired worker And she cannot ask for anything more.
Please cite this article as:
Asadinejad SM, Asadi nejad SM, Keshavarz Alavi H. The Status of Surrogate Mother's Rights in Case of Fetal Death. Medical Law Journal. 2025; 19: e24
Type of Study: Original Article |
Received: 2024/07/30 | Accepted: 2024/11/16
Received: 2024/07/30 | Accepted: 2024/11/16
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