Bioethics of childbirth for another (surrogate motherhood) in the Civil Code of Kosovo

• Jurisdiction: South Africa
• Date: 01 April 2023
• Pages: 23-28
• Author: B Bahtiri,Q Maxhuni,R Ferizi
• Published date: 01 April 2023
• DOI: 10.7196/SAJBL.2023.v16i1.342

April 2023, Vol. 16, No. 1 SAJBL 23

ARTICLEARTICLE

The issue of family law is extremely important, among other things

because it directly applies to every person. Everyone goes through

different stages of family life, and this issue adds to the urgent need

to update family-legal provisions and adapt to changes in family life,

as well as the development of contemporary society. Rapid changes

have occurred globally concerning family life in recent decades, such as

raising the age limit for marriage and childbirth, reducing the number

of marriages and allowing easier dissolution of marriage, as well as

constitutional legal protection of marriage, reconciliation and other

forms of cohabitation (extramarital relationships, first of all), application

of alternative methods of resolving disputed relations (mediation),

shifting the focus of family law from status to responsibility, and the

recognition of the universal character of marriage in most European

countries as well as in the USA, Canada and other countries.

Many of these issues have been raised and addressed during

the review and evaluation of the law on family in the context of

harmonisation and inclusion of this law in the Civil Code of the

Republic of Kosovo. During meetings of interest groups regarding

family law, the need has been raised to regulate family law to be

included in the Civil Code regarding motherhood and fatherhood

in the case of reproduction with biomedical assistance, as well as

for the birth contract as a donation for another person (so-called

surrogate motherhood). The following will discuss how to regulate

these bioethical aspects in the Civil Code.

Reproductive rights

The legitimate right of an individual or his/her spouse to decide on

the number of children to have, as well as to consent to have children,

as well as other basic concepts, are partially regulated by the Law on

Reproductive Health in the Constitution of the Republic of Kosovo.[1]

This law regulates and monitors all social activities that take place

in terms of reproductive health, such as protection and security of

the reproductive rights of married couples, including the right to be

informed accurately and in a timely manner, in chapter V– Assisted

Reproduction, in regard to medical services intended to regulate

infertility, including all treatments and procedures of artificial

insemination, in vitro fertilisation (IVF), laboratory procedures, and

medical operations with genetic materials in females and males with

the aim of artificial insemination and placement of acquired embryos

by a donor and their implantation in the organism of the future donor

(surrogate) mother.

The Constitution of Kosovo defines the right to assisted

reproduction according to the will and request of parents to have

children, in trying to address the medical aetiology of infertility as

well as preventing the transmission of hereditary diseases from

parents to children. The application of assisted reproduction methods

is performed by a team of professionals licensed by the Ministry of

Health in cases where:

• the couple has failed in their attempts to have children for at least

2 years before the moment of assisted reproduction;

• other medical techniques for treating infertility in the woman and

man have not been effective and have not had practical results.[1]

Furthermore, this law in article 21 defines assisted reproduction as

clinical and medical procedures that provide:

• an artificial form of insemination

• in vitro fertilisation

• embryo transfer

This open-access article is distributed under

Creative Commons licence CC-BY-NC 4.0.

Bioethics of childbirth for another (surrogate motherhood)

in the Civil Code of Kosovo

B Bahtiri,1 PhD; Q Maxhuni,2 PhD; R Ferizi,3 PhD

1 Department of Legal – Civil, Faculty of Law, University of Pristina, Republic of Kosovo

2 Department of Clinical Nutrition, College of Medical Sciences, Rezonanca, Republic of Kosovo

3 Pre-Medical Department, Faculty of Medicine, University of Pristina, Republic of Kosovo

Corresponding author: R Ferizi (rrahman.ferizi@uni-pr.edu)

Transformations in the biological, medical and legal processes of infertility, substantial modifications in family structure and the

advancement of methods and techniques of reproductive technology will affect the next step in both legal and medical terms to address

the regulation of bioethics and law in Kosovo. There is a need to establish perspectives in both ethical and professional terms, since the

Republic of Kosovo is in the process of drafting a Civil Code. Many of these issues have been raised and addressed during the review and

evaluation of family law in the context of harmonisation and inclusion of this law in the Civil Code of the Republic of Kosovo. During the

several meetings of official members with different interest groups regarding family law, the need has been raised to regulate family law to

be included in the Civil Code for motherhood and fatherhood in the case of reproduction with biomedical assistance, as well as for the birth

contract as a donation for another person (so-called surrogate motherhood). These bioethical and legal issues indicate the urgent need for

legal harmonisation of a multidimensional platform specifically based on the principles of public health and universal human rights.

S Afr J Bioethics Law 2023;16(1):e342. https://doi.org/10.7196/SAJBL.2023.v16i1.342