New technologies have made it possible for women to have children without having a partner. North Macedonia is among the countries with the best legal framework in the region on this matter. What remains contentious today is the fact that this method challenges the traditional ways of forming a family. On the legal and practical aspects, we spoke with Arta Mero, a professor at the Faculty of Law of the University of Southeast Europe.
How is assisted reproduction regulated in our legislation, are there legal gaps, and what changes would improve the regulation of this field?
Assisted reproduction in the Republic of North Macedonia is regulated by the Law on Biomedically Assisted Fertilisation (LBAF) of 2008, with the amendments and additions of 2014, which set out in detail the surrogacy process as well. This law regulates the right to biomedically assisted fertilisation; the conditions for exercising this right; the safety of donation; the safety, testing, processing, storage, distribution, and use of cells during biomedically assisted fertilisation; the rights and obligations of the patient; health workers and health institutions; the conditions for carrying out biomedically assisted fertilisation; and oversight. The methods regulated under the Law on BAF are: in vitro fertilisation (IVF), posthumous reproduction, the right of a single woman to start a family through donated sperm, and surrogacy.
Some of the legal gaps in the Law on BAF:
Unlike married spouses, problems arise when those seeking to use BAF are unmarried partners. According to the Law on the Family, the life partnership of a man and a woman that has not been established in accordance with the provisions of the Law on the Family (an extramarital union) and that has lasted at least one year is equal to a marital union with respect to the right to mutual support and to property acquired during the duration of that union (Article 13). Given that the concept of the "unregistered" extramarital union is recognised in family legislation, the problem of proving the existence and duration of the extramarital union arises in judicial practice. Medical institutions in the Republic of North Macedonia that perform biomedically assisted fertilisation have no way to verify whether an extramarital union truly exists between a man and a woman who request that biomedically assisted fertilisation be carried out.
The Law on BAF allows a single (unmarried) woman, who is not married and has no extramarital partner, to apply for biomedically assisted fertilisation. As a result of this fertilisation, the child who will be born will not have a known father, because the provisions of the Law on the Family on establishing paternity do not apply to biomedically assisted fertilisation, in which the donor is anonymous. This solution, which ultimately results in the fact that a child conceived through biomedically assisted fertilisation will not have a father, runs counter to the most important international document regulating and protecting children's rights — the UN Convention on the Rights of the Child, which the Republic of Macedonia has also ratified.
An age limit should be set (based on medical and scientific knowledge) up to which women may apply as users of the BAF procedure.
Example: in Serbia, "it is prohibited for BAF to be used by a woman who, according to her age or general state of health, is not capable of giving birth, that is, who is at an age that is not suitable for childbirth."
At present, children born through any of the methods of artificial reproduction do not have the right to know their genetic origin. The concept of open identity in the field of reproduction should be incorporated into the Law on the Family and the Law on Biomedically Assisted Fertilisation.
The act of assisted fertilisation (artificial reproduction) must bring a perspective grounded in children's rights and promote the child's best interests ahead of the interests and wishes of the donors and parents.
Information about one's identity and genetic origin are fundamental rights that do not jeopardise legal parenthood. Under the LBAF, a child born through fertilisation with donated reproductive cells or embryos may, if they have turned 18 and are capable of judgement, request — but only for justified medical reasons and with prior permission from the State Commission — access to the data on the health condition of the donor or donors in the State Register for BAF.
According to the Law on BAF, surrogacy may be used as an alternative for establishing parenthood only by married spouses. This solution constitutes discrimination against unmarried partners, which can hardly be justified or accepted, considering that in our family law the extramarital union is equated with marriage in many respects, and that even in the Law on BAF itself unmarried partners may use all the other methods of artificial reproduction except surrogacy. In this case we have an entirely illogical situation within the Law on BAF itself, according to which unmarried partners may use all the procedures of biomedically assisted fertilisation, including posthumous reproduction, yet in this case are excluded from the possibility of surrogacy.
This legal restriction has no logical and reasonable justification, except perhaps the ideological position that marriage must be protected — a position that came to the fore with the proposed constitutional amendments, in which marriage was defined as a union of one man and one woman.
But to restrict the reproductive right of a man and a woman simply because they are not married runs counter to the solutions provided in all the other cases of biomedically assisted fertilisation regulated by the Law on BAF, and does not befit a modern democratic society.
How is legal parenthood determined in cases of assisted reproduction, particularly in situations such as surrogacy?
Donors of reproductive cells and embryos have no parental rights and obligations towards a child conceived using their reproductive cells through BAF procedures. The child, regardless of genetic origin, is recorded in the register of births as the child of the parents who will care for them.
In the case of surrogacy: Under the law of the Republic of North Macedonia, the surrogate mother has no parental rights and obligations towards the child, that is, the children, she will give birth to for the married spouses. The consent statement given for carrying out the BAF procedure with a gestational carrier has the legal force of a statement waiving acceptance of motherhood after the birth of the child or children. The surrogate mother is not considered the mother of the children born.
As parents, after the child is born from a gestational carrier, the married spouses at whose request the BAF procedure with a gestational carrier was initiated are recorded in the Register of Births.
The authority responsible for keeping the Registers of Births records as parents the married spouses at whose request the BAF procedure with a gestational carrier was initiated, on the basis of a certificate issued by the Ministry of Health.
The data on the surrogate mother and on the manner in which that child was conceived and born may be disclosed to the child born through BAF with a gestational carrier after the child reaches the age of 5.
How are the rights and best interests of a child born through assisted reproduction techniques guaranteed, including the right to know their biological origin?
The child's right to a personal identity refers to knowing who their biological parents are and to the right to establish and maintain personal relationships, if both parties show an interest in doing so.
Respecting children's rights also fulfils one of the requirements of family law — respect for human dignity.
The concept of identity is interpreted from several angles: the legal, personal, psychological, and sociological aspects, for which specific definitions are of course given.
The right to know one's genetic origin represents an important element in determining a person's identity, as that person has the right to obtain relevant information to establish the truth about the identity of their parents. The right to know one's origin is dependent on the right to know the manner of one's conception.
There should be a mandatory mechanism for disclosing information, such as: recording the donor's identity in the registers of births, formally linking the information to the registers of births, and even mandatory DNA tests.
Secrecy, on the other hand, can prevent communication between parents and children and create hostile relationships of hatred, guilt, and distrust.
Beyond the child's right to know their origin, there is also the question of the donor's anonymity in the case of allogeneic fertilisation. The clash between these two rights always opens up debate, including in the field of harmonising laws.
The arguments that the child's right to know their origin should prevail over the interests of donors and legal parents:
- Promoting the equality of all children, without discrimination as to the nature of their conception and the reproductive choices of their parents;
- Promoting the child's best interests on account of essential medical information about hereditary and genetic diseases;
- The prevailing of the right to a personal identity — as a complex construct in the context of family life and parental and kinship relations — over the wishes of anonymous donors and of parents who claim exclusivity over their parenthood;
- The prevailing of the concept that treats children as active subjects and values their views on the matters that affect them as important, as opposed to the parental approach in which parents make decisions in advance on the children's behalf;
- The importance of knowing genetic ties, which can prevent incestuous relationships with relatives to whom children are related by blood — something that could increase the chances of offspring being affected by recessive genes or harmful mutations;
- The psychological security of children, donors, and legal parents, as a relief from the anxiety of keeping secrets.
What legal and practical risks arise during the implementation of assisted reproduction in practice, and how can they be addressed?
The rapid development of reproductive medicine is making it possible for biomedically assisted fertilisation to become "a routine procedure for providing assistance to infertile couples in European countries."
The serious dilemmas to which lawmakers must find answers are the questions concerning: the anonymity of the donors of reproductive material; the protection of the rights of the persons who are users of biomedically assisted fertilisation;
The regulation of the legal status of children born through the methods of the new artificial-reproduction technologies; the protection of parental rights; the regulation of the conflicts that arise between the child's right to know their biological parents and the donor's right to anonymity; the regulation of the possibility of conducting scientific experiments on human embryos; the need to prevent the commercialisation of the reproductive process; and a great many other issues.
How does assisted reproduction affect traditional societies, and is there a growing acceptance of these methods, or does hesitation towards them still exist?
In all European countries, including the Republic of North Macedonia, profound transformations are taking place in family structure: the number of marriages is falling; divorces are rising dramatically; single-parent and reconstituted families are increasing; extramarital unions and children born out of wedlock are growing in number; and the birth rate is declining significantly.
The traditional family model (father + mother + child within marriage) is no longer the dominant model. The pluralism of family forms is becoming not only a social reality but, increasingly, a legal reality as well. There is a growing tendency to accept BAF and the new reproductive methods even in traditional societies, but hesitation still exists, particularly towards: the single woman as a user of BAF; surrogacy; and the use of donated genetic material.
The law itself reflects this tension, by allowing a single woman to apply while restricting surrogacy to married couples only — thereby discriminating in this respect against unmarried partners as well as single men. This clearly shows that the legislator is responding gradually to social transformations, but cautiously, maintaining a balance between traditional values and individual rights, particularly reproductive freedom.
