The Nature and Validity Conditions of Surrogacy Contracts

Abstract

This contract is considered one of the types of agreements governed by Article 10 of the Iranian Civil Code. The conditions, status, and effects of non-specified contracts are determined based on the general principles of contracts and the principle of freedom of will. A surrogacy contract is an agreement under which a healthy woman undertakes to carry and nurture a fertilized ovum—originating from a third party’s sperm combined with either her own or another woman’s ovum—within her womb until full development. This contract for the use of a third woman’s uterus is concluded with a legitimate purpose, namely, to medically assist infertile couples. Upon the birth of the child, the surrogate delivers the baby to the contracting parties, either in exchange for compensation covering necessary expenses and a reward or gratuitously. The general conditions governing the validity of contracts must also be observed in surrogacy agreements. Infertile couples seeking to have children, after receiving medical, psychological, and ethical counseling under the supervision of infertility treatment centers and with the full consent of the surrogate mother, enter into a specific contractual arrangement with her. In such contracts, the infertile couple usually lacks the ability to conceive naturally. The process of fertilization is carried out in a laboratory environment. If the wife cannot become pregnant, the embryo created through artificial insemination is transferred into the uterus of a third woman. Regarding the permissibility of artificial insemination, most contemporary jurists, due to the necessity of the matter and the absence of any explicit prohibition, consider it permissible based on the principle of exemption from prohibition (asl al-bara’a). However, some scholars have objected, arguing that lawful conception occurs through natural intercourse, whereas artificial insemination lacks this characteristic. Nevertheless, such contracts do not conflict with public order or good morals, since they are intended to protect the formed embryo and prevent its death, and thus do not contradict public policy or ethical principles.