Surrogacy Insights
In 2024, the Czech Republic undertook a significant modernization and update of its Civil Code, reflecting a commitment to evolving legal principles and societal norms.
Civil Code Update
Article 2, paragraph 4 of the Constitution emphasizes individual freedom, stating that citizens may engage in activities not explicitly prohibited by law while asserting that no individual should be compelled to act in ways not mandated by law. Similarly, Article 2, section 3 of the Charter of Fundamental Rights and Freedoms reinforces this notion, “Everyone may do that which is not prohibited by law, and nobody may be compelled to do that which is not imposed upon her by law.”
Drawing from these constitutional provisions, agencies operating in the Czech Republic inferred that surrogacy, not expressly prohibited by law, could be considered lawful.
Surrogacy is not Illegal
It is evident that the authors of the Civil Code considered the concept of surrogacy, Section 804 provides: “Adoption is excluded between persons directly related and between siblings. This does not apply to surrogate motherhood.” This does not offer much guidance on how surrogacy should operate. However, it can be assumed that if the legislature wanted to make surrogacy illegal, it could have while considering the concept of surrogacy.
Commercial Surrogacy
Commercial surrogacy is explicitly prohibited under Section 169 of the Criminal Code. This provision criminalizes any transaction involving the placement of a child in exchange for financial gain or adoption. Therefore it appears that only altruistic surrogacy is permitted, however reasonable expenses related to the pregnancy can be reimbursed.
Establishing Parental Rights
Given the absence of specific legislation on surrogacy, legal determinations regarding parental rights must rely on the general provisions outlined in the Civil Code. The principle of “mater semper certa est” (mother is always certain) enshrined in Section 775 underscores the importance of birth in establishing maternity, irrespective of genetic ties. Therefore, the surrogate’s name must always appear on the birth certificate. The surrogate has the right, as the legal parent of the child, to refuse to relinquish the child.
Practical considerations also come into play regarding parental rights. For instance, if the surrogate is unmarried, she can designate the intended father on the birth certificate. Similarly, if the intended mother is a Czech citizen, she can assert her parental rights through the adoption process. However, if she is a foreign national, she may need to pursue a second-parent adoption in her home country to establish her legal relationship with the child. In cases where the surrogate is married, the intended parents will need to engage in a full adoption process. It usually takes 11 months from the child’s birth to the granting of the adoption. There are reported cases of the intended parents leaving the child in the care of a nanny in the Czech Republic but maintaining regular visitation.
Operation Spaniel
In March 2022, Interpol made arrests in the country in connection with a case dubbed “OPERATION SPANIEL,” involving doctors from a clinic where IVF procedures were conducted, as well as several individuals identified as parents. This operation unfolded across the Turkish-occupied Northern Part of Cyprus where IVF procedures took place, before surrogates were relocated to Prague for childbirth.
The specifics of Operation Spaniel remain somewhat opaque. It appears to be centered on instances of fraudulent representation involving gay single men posing as the surrogate’s partner. The surrogate would then relinquish parental rights to the intended father without any formal court involvement.
Heightened Security
Following this case, heightened scrutiny has been observed in procedures involving single surrogates and foreign citizens. It is reported that upon receiving requests for birth certificates involving such arrangements, the Registry of Births now promptly notifies law enforcement agencies. Subsequently, police conduct inquiries involving questioning the surrogate and the intended father. These inquiries seemed to be centered on ascertaining the legality of the arrangements and whether any illicit financial transactions occurred with the surrogate.
Surrogacy in the Czech Republic
This development underscores the increasing vigilance and regulatory oversight surrounding surrogacy practices, particularly in cases involving international and single-parent arrangements.
Surrogacy in the Czech Republic operates within a complex legal landscape characterized by constitutional principles, statutory provisions, and practical considerations. However, there remains the need for comprehensive legislation to address the practice of surrogacy and the creation of a pathway to establishing parental rights.
Future Legal Developments
- At present, there is no available information regarding any forthcoming legislation.
