Introduction
The Iran civil law has named some contracts and their conditions, consequences, and judgments of each. In addition to civil law, other laws have introduced some specific contracts and explained their quality under specific laws. Besides these contracts, the legislator in Article 10 of Civil Law introduces a principle based on which private contracts are accepted in case they do not explicitly oppose the laws. Based on this article the parties can reach an agreement outside the traditional format of the laws and the legislator respects such agreements. In fact the legislator respects the freedom of individuals in terms of such contracts through this article and ignores the viewpoint that contracts should be specific or in line with one of these contracts. The surrogacy in pregnancy and employing another female`s womb by an infertile couple is a contract between the infertile couples seeking for a baby and the substitute mother and based on that the substitute mother becomes pregnant with the fetus belonging to the infertile couple and should take care of it and give back the baby to the genetic parents after delivery. Evidently, the legislator has not entered upon the case and not introduced it as a specific case. Therefore, some authors try to investigate it as specific contracts such as rent, reward, and bailment, and try to apply and adapt the laws of such contracts. Some others introduce it as a private contract and include it in Article 10 of Civil Law and regard it as a nonspecific contract regardless of its similarities with the mentioned contracts. The importance of the current study was that according to the novelty of this treatment method and non-existence of corresponding laws, initially, the nature of this contract was unknown in the legal system of Iran. According to different religious, legal, social, and cultural approaches regarding this phenomenon, investigating the nature of this contract is a fundamental issue in Surrogacy Agreement in Pregnancy; and before finding a format and mechanism for the issue, problems are faced to investigate other aspects of this contract. Second, due to the novelty of this phenomenon in the legal system of Iran, the legislator has not commented on the issue, which is reasonable; hence the issue is discussed in academic environments and its different aspects are clarified and researches on this topic facilitate legislation in this regard. Third, with the illumination of the nature of the mentioned contract, rules and consequences are illustrated to a large extent, even in the absence of laws.
The current study thoroughly investigated the comments on this contract, then different ideas, criticisms, evaluations, and the shortcomings in this regard were explained.
It is noteworthy that the substitution contract in pregnancy interpreted as womb renting, substitution womb, substitution mother, and rented womb is a complex contract signed between the substitute mother , sperm and egg owners, and the treating organization and its different aspects should be discussed; aspects such as signing the Surrogacy Agreement in Pregnancy, correctness of its fundamental terms including the legitimacy of its treatment method, title of the contract, its characteristics, legal capacity of the parties, the rights of the parties under the contract, responsibilities of the substitute mother and those of sperm and egg owners, alimony of the womb owner, linage etc. that the author has written about in detail in different articles; therefore, in the current article such explanations are avoided and the focus is on the contract itself. Before discussing the nature, first the correctness and legitimacy of the contract should be investigated to find out if this contract is valid in the legal system of Iran, then the other issues can be discussed. In terms of correctness and legitimacy of this contract, it is enough to mention that it is not against law, public order, and morals and most of the jurists confirm the legitimacy of the contract and the treatment method. The neonate belongs to the sperm and egg owners and the substitute mother is accounted as a foster mother; of course the author believes she has a more important role.
The current laboratory study employed a descriptive analytical method.
Surrogacy Agreement in Pregnancy and renting objects
Lease is a contract based on which the tenant owns all the benefits of the object of lease; some authors have tried to analyze and define substitute contract as lease due to the fact that the substitute mother gives the benefits of an organ of her body, womb, to the genetic parents and in return receives an amount of money. Authors, with different reasoning, state that this deduction is not right (1-3). Although the two have some similarities, there are some important questions in this regard.
1- According to the civil law, in lease, it is a matter of owning the benefits, and the tenant should own the benefits of the object of lease; but can body organs be regarded as objects? and can it be said that an individual owns its body or at least owns the benefits of the body organs? (2,3). The points that organs are property or not and the relationship of an individual and his body organs are controversial. Some believe that the relationship is ownership, although there are controversies among the authors regarding the quality of ownership; another group believe that is true ownership and some regard it as intrinsic ownership, a third group regard it as legal ownership, and the fourth group believe that it is the ownership of the benefits .In addition to the ownership , some believe that it is a matter of dominancy and some others state that individuals have the right to benefit from their organs(4-7).generally, it can be deducted that an individual has the right to seize, benefit, and use his organs to an extent that is not against religious law, wisdom, and morals.
Regarding the question If the substitute mother can give the benefit of his womb to the infertile couple, it can be said that on one hand it is possible to transfer the benefits of females breast that is producing food for a neonate ; on the other hand if it is accepted that the transfer of organs such as blood is not very much harmful and is allowed in necessities, this should be similarly allowed; since on one hand the benefit of the womb is transferred and pregnancy itself does not harm the female, which might be against religious law, and on the other hand it satisfies the need of a large number of infertile couples. Therefore, transferring the benefits of a female`s womb for pregnancy has no problem; but the fundamental point is how the relationship of a female with her womb can be regarded as an ownership relationship and based on that allow the lease. This is a religious jurisprudence, legal, and philosophical question, which cannot be answered explicitly.
2- Lease is a swap contract by nature. Although article 466 of the civil law has not mentioned the rent, jurists believe that the rent is one of the fundamentals of the lease contract, and in case the ownership of the benefits is free or the owner gives the authority of benefiting from the benefits of the property free of charge, then it is not a lease contract (8). In case it is intended to include the substitute contract in the lease contract of objects it should be considered as a swap contract; whereas this is not the case and many of such contracts are signed based on friendship and free of charge.
3- The owner should deliver the object of lease to the tenant and if it is not possible the contract is terminated. On the other hand the object of lease should be delivered in a manner that can be used properly. Whereas if it is a lease contract, how can the object of lease be delivered to the tenant? In this regard, some believe that from the view point of jurisprudence, the tenant should own the benefits of object of lease during the period; based on the dominancy right, he has the right to profit and since the right depends on receiving the object of lease, hence submission of the object of lease by the owner is necessary. In addition, according to the requirements of dominancy right no one else should have control over the property. It is quite obvious that the substitute mother cannot deliver her organ to the legal parents, in the legal sense(2); although the substitute mother is eligible to benefit from her organs, she cannot transfer the right ,which is a personal right, in any form to the others in a sense that they have right and domination over her organ (3). This defect that is submission in its legal sense can be removed since according to article 396 of the civil law, surrender to the submission of the property has different forms and should be in the customary manner accepted as submission. Although this article is on sales, with refining the focus can be reflected to lease too. If leasing the womb is right, submission defect is not justified; since it seems that as the female takes care of the fetus of the infertile couple in her womb, submission has occurred. Similar to the case of renting a car that as the person gets on the car and is given a ride submission has occurred, although the driver is the car owner. Now, there are serious doubts about regarding this kind of contract as leasing the objects, and such contracts cannot be clearly leasing the objects.
Surrogacy Agreement in Pregnancy and hiring individuals
Hiring individuals is a form of leasing, as mentioned in some articles of civil law; although not explained, jurists have defined them: lease is a swap contract in which an individual is committed to do a job in return for a certain payment( Katoozian2013: 553). The point that should be considered here is if hiring individuals is among the ownership contracts; since according to the definition of the lease by the legislator, the tenant is the owner of the benefits of the property; and the possibility comes to the mind that hiring individuals is also an ownership contract and the benefits of the employed is exchanged with a certain payment; whereas from the legal point of view, there is still the question if hiring individuals is an ownership contract, and right of the tenant on the benefits of the job done by the leased individual can be regarded as the common meaning of the ownership(8). Some have clarified this ambiguity: benefits of and individual`s conducted job, related to his will, is inseparable from the employed individual and owning such a benefit is as owning the individual himself. According to the current laws, an individual can be committed to another individual and laws obligate the implementation of this commitment; but an individual cannot have the dominancy of ownership over another individual. The dominancy of a tenant over the object of lease is not applicable to humans; especially in a contract that the job is not done to the order of the employer and under his supervision; such an analogy is not possible either. The labor law has clearly regarded a work contract as a covenant (8).Based on this reasoning, it can be concluded that hiring individuals is not a dominancy contract and is a covenant.
Now, can Surrogacy Agreement in Pregnancy be a contract of hiring individuals, in a way that substitute mother covenants, based on an agreed amount, to become pregnant by the auxiliary reproductive methods with the fetus belonging to the infertile couple, and after delivery give the neonate to its genetic parents? There is controversy between the authors in this regard; majority of them are against this theory, but the minority believe that the theory is true. The advocates of the theory believe that the structure of hiring individuals is closer to those of agreement and covenant of Surrogacy Agreement in Pregnancy compared to those of the other contracts (9).Some others support the theory against the fact that they regard it as hiring individuals, but still believe that it cannot be just hiring individuals and it should accompany some other contracts such as bailment, since she is committed to take care of the fetus, and marriage contract to make sure that there are no religious issues(10).On the other hand the opponents try to prove their claims as follows:
- Some explain that in hiring individuals, submission of the benefit takes place with the performance of the committed job and providing the product, and if the subject of commitment is wasted before submission, the hired individual cannot claim a payment, and conclude that in the Surrogacy Agreement in Pregnancy if the fetus is aborted before delivery, the hired individual cannot be paid according to the available laws; since she has kept her commitment to take care of the fetus but achieving the goal is out of her control and ability and according to the hard job done, it does not seem fair not to pay the substitute mother(3). But the legal theory looks at this subject differently and accepts the opposite of that in the contract: in hiring individuals before the end of the job, there is no way to accept that the benefits are received by tenant. Therefore, the hired individual cannot ask for a payment before the job is done, unless it is agreed in the contract, similar to most of the contracts that it is customary to receive the payment is some instalments according to the improvement of the project (8).Therefore, through this interpretation the defect is rejected; since the two parties can come to an agreement regarding the payment. In the Surrogacy Agreement in Pregnancy, it is agreed that the payment is mortgaged through some checks in the treating organization and based on the development of the pregnancy the womb owner receives the payment at certain times such as 3 months, 6 months, and after delivery. Of course if no agreement is done regarding abortion for the reasons other than those of the womb owner`s faults, according to the general legal rules, and in the terms of lease and profit, and legal doctrine, the womb owner should not be totally deprived of the payment and she should be paid according to the experts suggestion due to the job done.
- Another defect of the theory is that the substitution womb contract constitutes of a set of commitments that cannot be all included in the contract of hiring individuals. In this contract, the impact of other contracts such as bailment, donation of the benefits(in friendly contracts), and swap contract can be traced that make it difficult to incorporate it with the contract of hiring individuals (3).It seems that this defect can be rejected; since in every contract the law imposes some obligations on parties that are out of the contract; for instance in a lease the tenant is trusted, and also in the contract of mandate, the attorney is trusted .Therefore, the imposition of commitments other than those of the contract cannot directly reject this contract.
- Still another defect of the contract, proposed by the opponents, is that if the substitution mother contract is regarded as a hiring individuals contract, therefore, benefit of the subject of the contract, which is the natural function of the substitute mother`s womb to develop the fetus, is formed as a financial contract where the substitute mother has the right to ask for money to do the job; whereas this right is part of the substitute mother and has no financial form and cannot be evaluated with a certain amount of money. The benefit subjected to the substitute mother contract cannot be included in the hiring individuals contract and consequently regarded in the manner of hiring individuals contract and pay the substitute mother according to it(2). An author responded to the issue as follows: the issue of regarding the human labor as benefit and also regarding hiring individuals as a lease contract by the legislator indicates that only being part of the personality and being cannot prevent it to be regarded as part of the conditional ruling of a benefit unless there is a specific prohibition or explicit mention of the profit. In addition the sentence of jurists also confirms the idea of giving permission to hire a female for breastfeeding; whereas benefit of the subject, the permission of a female in breast feeding of a neonate and in other words in the contract of breast feeding, the function of the females breast is naturally production of milk, which is part of her being and personality (9). This reasoning seems true; since the benefits of the body organs are evaluated by money, and cannot be considered false due to being part the personality or being of the substitute mother.
- The fourth defect stated by the authors is that if this contract is regarded as a contract of hiring individuals or service, then it should be in compliance with the labor law and freedom of the contract should be limited to the boundaries of this obligatory law. Is it not the case that such a situation is far from the mutual consent of the contract?(1).Based on this theory, if the mentioned contract is regarded as the contract of hiring individuals, it is covered by the labor law; but it seems that the idea is facing some uncertainties, since according to articles 1 and 5 of the labor law, this law is dominating the relationship between employers, employees, and their representatives, and trainees and also workshops, manufacturing , industrial, service, and agricultural organizations. Some authors in the field believe that in cases that the inclusion criteria of specific employment rules are suspected, if the name of worker corresponds with the person, the person is included in the labor law; since the labor law covers all the persons known to have the employee and employer relationship, and it is regarded as a principle (11).Based on this theory, if the labor law is to be applied to a relationship, one of the parties should be worker. Certain criteria define worker and the most important one is legal compliance.
There are controversies regarding the definition of legal compliance whether to define this compliance technical or administrative, and the right of supervision and ordering; the author explained the concept with an example: customary owners of jobs may perform their jobs in two ways, directly offer their service to the user such as a physician who examines a patient in his theater or a painter who paints a picture for a customer or a lawyer who accepts a case. In all of these examples, the contract is dominated by the civil law and not by the labor law; but if the physician starts working in a hospital or the lawyer is employed by a company as a legal consultant, or a teacher or professor starts working in an educational organization as a freelancer and the mentioned people should work certain hours in the mentioned institutions, all of them are regarded as workers; although they act independently according to their expertise and knowledge, they should work according to the regulations of the institutions and consequently there are legal and administrative compliancesfor them(11).Although this example defines the legal compliance, it provides a criterion indicating that not every legal compliance can regard the other party asa worker and include the legal relationship in the labor law. Other jurists have the same idea: by separation of labor law from the civil law, an important part of hiring individuals is taken from this realm of law and government takes care of the relationship between employers and employees through the labor law and social security. Hence, it should be considered that labor law does not include all relationships of lease of actions. When a person refers to the tailor or gives the wiring contract of a house to an electrician, the person hires people, although they are not the person`s worker and the contract is not dominated by the labor law (8).
The substitute mother is the same case; although she is under the supervision and compliance of the genetic parents, this relationship does not seem to be justified according to the relationship between employer and employee. On the other hand, the substitution contract might be independently signed and the genetic parents might not give any orders or cause limitations to the substitute mother (when the womb owner is a relative of the parents, trusted by them or is aware of the process). Therefore, Surrogacy Agreement in Pregnancy, which is a contract of hiring individuals is similar to this case and cannot be included in the labor law.
5- The last defect can be that lease is a swap contract and payment is one of its important factors and requirements, and non-payment or non-agreement about the payment terminates the contract (8); whereas, it is known that Surrogacy Agreement in Pregnancy maybe bare and signed in a friendly manner. If there is no payment in the contract it is not a dominancy contract and should be named otherwise.
An author, considering it a swap contract, defines it as follows: Surrogacy Agreement in Pregnancy should be regarded as a free contract; although Surrogacy Agreement in Pregnancy can be signedas free and in a friendly manner, if it is regarded as a generally free contractthere will be serious doubts about it; since some believe that basically any obligations arising under a contract causes trouble sand cannot be free, unless the two parties clearly state thatit is free of charge, and the person is willing to perform the job out of good will and free of charge. In this case, if it is not clearly stated that there is no charge, the principle of non-donation is current. If the amount of payment or the financial right is not predicted, the service is not free and the couples are obligated to pay according to the experts’ suggestion (12).
Based on the discussed cases, it can be concluded that hiring individuals maybe the right format for the Surrogacy Agreement in Pregnancy, since the general principles of lease can include the case but with the difference that it is a swap contract; whereas the substitution contract can have the bare form.
Surrogacy Agreement in Pregnancy and contract of reward
Article 561 of the civil law defines the contract of reward as follows: contract of reward is a paid tribute against an action performed by specified or unspecified parties. This contract can also be a format for the Surrogacy Agreement in Pregnancy, based on which the substitute mother, against a specified payment, is committedto become pregnantby auxiliary fertility methods with a fetus belonging to others and after delivery give the neonate to them; according to the authors, the most important defect of contract of reward is that it is an voidable contractand the rewarder and the agentcan withdraw from that at any time they wish; whereas in the Surrogacy Agreement in Pregnancy, the parties cannot have such a power to derogate at any time they wish and return everything to the original state.
After implantation of the fetus in the substitute mothers` womb, there is no return right for the parties; since termination of the contract endangers the fetus, which is against the public order and morals; although before implantation of the fetus, the parties can terminate the contract. Although in this case some believe that swap contract can be accompanied by another contract to make it an indispensable contract; therefore, the parties have no right to terminate it voluntarily (9).
It should be noted that Surrogacy Agreement in Pregnancy is a complicated legal mechanism with vast and important consequences, whereas reward contract is negligent and the legislator has not implemented the strictness of other types of contracts; therefore, it seems that Surrogacy Agreement in Pregnancy can be included in reward contract.
Surrogacy Agreement in Pregnancy and bailment
The civil law defines the bailment as follows: bailment is a contract based on which a person gives his property to someone else to take care of it free of charge, the requirements of bailment include: depositing the property to someone to take care of it and if it is known in the contract that the original aim is not to take care of it, the relationship should not be regarded as bailment (13). In the Surrogacy Agreement in Pregnancy, although the fetus of the infertile couple is placed in the womb of the substitute mother and she takes care of that until delivery, it does not seem that the original aim of the contract is merely taking care of it. The infertile couples place the fetus in the substitute mother`s womb so that she develops it till delivery, and it remains in the womb till the evolution of the fetus growth. The original aim of the parties is growth and development of the fetus till delivery and giving the neonate to the infertile couple after delivery, and keeping the fetus is a secondary aspect. Although taking care of the fetus is the prerequisite of the original commitment (9).
The allowance of the bailment was discussed in the reward contract; but there is another important defect, which should be considered, that the civil law has accepted it regarding the properties and indicates that a person deposits his property with someone. Here, the fetus that is potentially a human being cannot be directly called a property and the upcoming legal and moral challenges are undeniable. Another point is that bailment is a free contract by nature. Although the reward condition has no conflicts with it, in the Surrogacy Agreement in Pregnancy it cannot be explicitly stated that this contract is free of charge by nature and the pay of the substitute mother should be in form of a subcontract between the parties.
Surrogacy Agreement in Pregnancy and Article 10 of The Civil Law
Many authors believe that Surrogacy Agreement in Pregnancy cannot be included in the specified legal contracts of civil law and an independent contract with specific conditions and consequences should be investigated based on Article 10 of The Civil Law. The parties, based on the dominancy of the willshould come to agreement regarding the conditions and consequences in such a way that are not against the law, public order, and morals and each party is obligated to implement the commitments and consequences based on the contract obligation principles. This can be a bare contract and the genetic parents have no commitments against the payment (1,3,14-16). It should be noted that if this contract includes some specified and unspecified contracts or is a comprehensive contract? Some authors believe that since the requirements of the nature of this agreement is giving birth to a child for others by the fetus belonging to them and commitments of the substitute mother is according to the requirements of the nature of the contract, therefore, the legal relationship is not a combination of different contracts but it is a comprehensive one (2). But some others believe that by analyzing this contract, it can be deducted that the different commitments of the contract cannot be included in only one specified contract. This agreement consists of some specified and non-specified contracts and can be broken down to bailment of fetus, donation of profits (in case of bare contract), hiring of substitute mother (in case of swap contract), and breast feeding contracts (3). In any case whether to regard it as a comprehensive or complex contract, it can be signed as an independent contract.
At the end of the discussion, it should be noted that according to the specific conditions and consequences of this contract, and that this contract is bound to giving birth to a child and has direct effects on the society and the future events, and the novelty of this treatment method and consequently its related contracts, no common law is formed yet in this regard that in case of the silence of the contract can settle the issues. It is not advisable just to include it in Article 10 of The Civil law and leave the consequences of such treaties solely to the will of the individuals; although in the legal system of Iran, according to the non-existence of a specific law in this regard, there is no way but to analyze this contract according to Article 10 of Civil Law, therefore, legislators should enter upon the case and as some authors have explained (17) that according to the moral and philosophy of law, due to the nature of this relationship, and the importance of the case, legislator should establish a treaty or moral agreement in form of an independentreal organization.
Discussion and Conclusion
Based on the discussed topics, it can be concluded that the nature of the Surrogacy Agreement in Pregnancy in the legal system of Iran has similarities with some legal entities such as leasing objects, hiring individuals, bailment, and reward contract; among which the contract is most similar to the hiring individuals; in such a way that some authors take it as hiring individuals; but as already stated, lease is a swap contract by nature and nonpayment condition takes it away from the lease and inevitably another contract should be considered. Swap and bare forms of Surrogacy Agreement in Pregnancy can be signed and in case of bare form, it cannot be analyzed as hiring individuals. In case the swap form of the contract is accepted, it should be said that the swap form of Surrogacy Agreement in Pregnancy is a contract of hiring individuals, and in case it is bare it is not a contract of hiring individuals anymore and is a different contract. Therefore, it seems that according to the acceptance of freedom of contract in Article 10 of Civil Law by the legislator, the mentioned contract is a private contract based on Article 10 of Civil Law, which is agreed by the majority of the authors and researchers.
Therefore, according to the above explanations, it is suggested that due to the vast studies on the case of Surrogacy Agreement in Pregnancy, the legislator should enter upon the case and study the case and conduct researches on the specific nature of the contract; and due to non-existence of a specific law in this regard, choose a specific name for the contract such as substitution in pregnancy, make it a specific contract and fully explain its conditions, rulings, and consequences in terms of legal form. This will put an end to the disagreements and dissensions, and decisively clarify the case for the involved medical institutions, families, and courts of law.
Acknowledgments
Authors wish to acknowledge their gratitude to all the individuals who cooperated in the current study.
Conflict of Interests
Authors declared no conflict of interest.
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