P-53: Civil Responsibility of Parties to a Partial Surrogacy Contract

Background: During recent years, scientists have presented several methods for treating infertility; these methods occasionally are highly efficient for infertile couples but can be concerning because of legal and ethical issues. One of these methods is surrogacy. Surrogacy is used when the main etiology of infertility is in the uterus caused by these three reasons: lack of uterine‚ congenital and acquired uterine abnormalities; in these cases the women can’t become pregnant‚ and surrogacy is a way for having children in all of them. Contract of surrogacy is an agreement which a women (substitute’s mother) will agree against the couple that to carry embryo and to birth the child for them. Genetic relationship of substitute’s mother whit embryo has two forms: 1-substitute’s mother to carry parent’ s sperm and egg according to the agreement that called “full surrogacy” .2- substitute’s mother to carry embryo resulting from paternal sperm to fertilize whit her egg that called “partial surrogacy”.In this paper, we will study the civil responsibility (including contractual responsibility and tort liability) of the parties to a surrogacy contract. We are going to answer the question of whether it is possible to claim damages resulting in breaching the terms of contract by one party and whether one can ask the court to make the contract breaker to perform his specific obligations. Materials and Methods: Regarding the lack of law about surrogacy it has been attempted to find a proper answer to the issue by reliance on general rules of contracts and jurisprudence (fiqh). Results: Contractual responsibility occurs when the parties violate the contract provisions. To demonstrate the contractual responsibility in surrogacy it is not enough to simply rely on Article 10 of the civil code and the general rules of contracts. It is necessary to enact a particular act in this regard so that parties (substitute’s mother and the couple applicant of child) might be able to make an agreement with complete knowledge of their rights and obligations. Also, in case of violating the provisions of contract by one party, the other one could claim damages resulting in non-performance. In tort liability, parties violate the legal and general obligations. Tort liability does not arise from contracts between parties but it is violation of general obligations and the behavior of a reasonable man. Since surrogacy is a new method, there is no special practice with respect to it and it is not possible to determine the cases where violation of the behavior of a reasonable man and committing a fault has occurred. However, these problems require the lawmaker to cover the issue of surrogacy and ratify a precise law in this regard. Conclusion: Surrogacy requires the lawmaker to cover the issue of surrogacy and ratify a precise law in this regard.otherwise will ignore the public order.