In Georgia, the regulation of assisted reproductive technologies (ART), including the method of surrogacy, lacks a dedicated statutory framework. Instead, various normative acts govern the different aspects related to surrogacy and ART. This article examines the legal determination of parentage for children born through surrogacy in Georgia, emphasizing practical considerations for Intended Parents.
The legal parentage of a surrogate-born child in Georgia is established through an administrative procedure initiated post-birth. The Intended Parents acquire legal parentage automatically, contingent upon the timely submission of required documentation to the Birth Registration Authority, namely the Civil Registry of the Public Service Development Agency under the Ministry of Justice of Georgia. Following the successful submission of documents that fulfill legal criteria, the Civil Registry Issues a birth certificate, officially designating the Intended Parents as the legal parents of the child.
Notably, the Georgian legal framework stipulates that no pre-parentage court orders, special committee approvals, or post-birth parentage orders are required for recognizing the Intended Parents as legal parents or for including their names on the child’s birth certificate. According to the law, it is explicitly stated that “if a child is born, the couple shall be deemed as parents, with responsibilities and authorities proceeding from this fact; the Donor or the Surrogate Mother shall not have the right to be recognized as a parent of the born child.[1]”
For Intended Parents to be recognized as the legal parents of a surrogate-born child, the following requirements must be met:
1.In Vitro Fertilization (IVF): IVF may be conducted in either a Georgian or Foreign Clinic. However, embryo transfer to the Surrogate Mother’s uterus must occur exclusively in a Georgian clinic. Documentation from both clinics must confirm the execution of necessary procedures, and a Report on In Vitro Fertilization must be issued and digitally signed by the Georgian clinic immediately after embryo implantation, but no later than the next working day.
- Eligibility of Gametes: IVF can be performed using:
– The Intended Parents’ gametes;
– One gamete from the Intended Parents and one from a Donor;
– Gametes sourced from male and female Donors.
3.Type of Surrogacy: Only gestational surrogacy is permissible in Georgia; this means the Surrogate Mother acts solely as a carrier and does not use her own egg cells for fertilization. Traditional surrogacy, in which the Surrogate Mother has a genetic link to the child, is prohibited.
4.Eligibility Criteria for Intended Parents: Child surrogacy arrangements cannot accommodate single Intended Parents or same-sex couples. The Intended Parents must be a heterosexual couple diagnosed with infertility, having either been married for at least one year or living together for a minimum of one year.
5.Surrogate Mother’s Eligibility: Georgian law does not impose specific requirements concerning the Surrogate Mother’s eligibility (such as her marital status or spousal consent).
- Surrogacy Agreement: A legally binding Surrogacy Agreement must be established between the Intended Parents and the Surrogate Mother. If a Donor’s gametes are involved, a Surrogacy and Donation Agreement must be executed among the Intended Parents, Surrogate Mother, and Donor(s). Notarization of this Agreement is mandatory, either before embryo creation or if the embryos are frozen – prior to the embryo transfer[2].
Given that Georgian law mandates notarization, the identities of all parties involved must be disclosed, ensuring transparency throughout the process. Therefore, in the context of a surrogacy arrangement, the Donor may not be anonymous. Parties to the Agreement must appear before a notary or be represented by a proxy, excluding the Surrogate Mother herself.
7.DNA: No DNA test evidence is necessary for submission to the Civil Registry; documents from the clinic certifying the execution of relevant medical procedures suffice.
8. Issuance of Birth Certificate: Upon receiving all requisite documents within the legally defined timeframe, the Civil Registry will issue a birth certificate reflecting the Intended Parents as the legal parents within five working days[3].
If legal requirements are not met and the Civil Registry declines to register the Intended Parents, the relevant information is forwarded to the Social Service, which then decides the child’s name. Consequently, the birth certificate will not include the parents’ names, although the child will receive Georgian citizenship. In such instances, the Social Service is granted legal custody of the child and may provisionally award custody to the Intended Parents while the matter is adjudicated in court[4].
Importantly, a child born through a surrogacy arrangement in Georgia is prohibited from leaving the country if the birth certificate does not include both legal parents, regardless of possession of a foreign passport[5].
In conclusion, to mitigate potential complications following the child’s birth, it is essential to adhere strictly to the Georgian legal requirements concerning the necessary paperwork. Furthermore, foreign Intended Parents are advised to seek legal counsel regarding their home country’s regulations on parentage recognition, as well as the processes for obtaining citizenship and travel documents for a surrogate-born child. This additional legal guidance, in conjunction with compliance with Georgian laws governing the issuance of a Georgian birth certificate, will ensure a smoother transition for Intended Parents navigating the surrogacy landscape.
[1] Paragraph 2, Article 143 of the Law on Health Care.
[2] Note: The period from creation of embryo(s) until the embryo transfer shall not exceed 10 years.
[3] Note: The Civil Registry is authorized to extend this term in the cases specified under the law.
[4] If the Civil Registry refuses parentage recognition, Intended Parents may appeal to a Georgian court. While there are no guarantees regarding the outcome, case law suggests that claims are typically granted when sufficient evidence is presented showing the completion of surrogacy procedures, the intent of the parties involved, and a conducive environment for raising the child. Seeking tailored legal counsel in these situations is advisable.
[5] Article 491 of the Law of Georgia on the Legal Status of Aliens and Stateless Persons.