5 Legal Issues That Arise During the Surrogacy Process

5 Legal Issues That Arise During the Surrogacy Process. Modern biotechnological advancements in human reproduction have initiated a transformation that fundamentally challenges traditional concepts of family law and lineage. One of the most controversial manifestations of this transformation, surrogacy, has separated the concepts of genetic, biological, and social parenthood through medical possibilities. The Turkish legal system has adopted a highly conservative and prohibitive stance by evaluating the effects of these technological possibilities on the social structure within the framework of “public policy,” “general morality,” and “protection of lineage”. Surrogacy is defined as a woman (the surrogate mother) undertaking the pregnancy process for another’s child (the intended parents) and committing to deliver the child after birth; this process is tied to both legal and criminal sanctions in Turkish legislation.

The ban on surrogacy in Turkey covers not only the performance of the medical intervention but also any contracts made for this purpose and the recognition of legal statuses arising from such contracts. This strict legal regime directs Turkish citizens who wish to have children but face biological obstacles to foreign countries where surrogacy is legal, such as Ukraine, Georgia, or certain states in the USA. However, bringing these processes, which are legally completed abroad, to Turkey entails five major legal issues that are difficult to overcome in fundamental areas such as the establishment of lineage, civil registration of children, acquisition of citizenship, and inheritance rights.

1. Absolute Nullity of Surrogacy Contracts and Limits of Freedom of Contract

The first and most fundamental issue encountered in the surrogacy process in Turkish law is the legal nature and validity of the contract concluded between the parties. Pursuant to Article 26 of the Turkish Code of Obligations (TCO), parties may freely determine the content of a contract within the limits prescribed by law. However, this freedom is limited by Article 27 of the TCO, which explicitly stipulates that contracts contrary to the mandatory provisions of the law, morality, public policy, and personal rights are “absolutely null and void” (mutlak butlan). Surrogacy contracts are accepted in Turkish legal doctrine and judicial decisions as transactions that embody all four of these grounds for invalidity.

Personal rights and human dignity, which are the sharpest limits of freedom of contract, play a central role in the invalidity of surrogacy contracts. Pursuant to Article 23 of the Turkish Civil Code (TCC), no one can renounce their rights and liberties or transfer them in a manner contrary to law or morality. The use of a woman’s body as a “reproductive tool” or “womb for hire” is considered contrary to human dignity, being evaluated as the instrumentalization and objectification of the human being. In this framework, the surrogate mother’s renunciation of her power of disposition over her own body during pregnancy and the advance transfer of her rights over the future child constitute an interference with the essence of personal rights, rendering the contract void from the beginning.

The perception of surrogacy contracts as “contrary to morality” is directly related to the family structure and values of Turkish society. In judicial decisions, subjecting a child to a commercial transaction or severing the bond between the birth mother and the child for a fee is incompatible with the general understanding of morality. Whether the contract is made for a commercial purpose (commercial surrogacy) or merely to cover expenses (altruistic surrogacy) does not change the result of invalidity under Turkish law; in both cases, there is a violation of mandatory rules. The most severe consequence of absolute nullity is that the contract has no binding effect on the parties. Even if the surrogate mother refuses to deliver the child after birth, the intended parents cannot demand “specific performance” (delivery of the child) based on this contract. Similarly, if the intended parents do not accept the child, the surrogate mother cannot compel them.

This legal vacuum also leads to serious disputes regarding the return of payments made by the parties (unjust enrichment). Pursuant to Article 81 of the TCO, it is not possible to demand the return of things given for the purpose of achieving a result contrary to law or morality. Under this rule, there is a risk that payments made to the surrogate mother cannot be reclaimed even if the contract is not performed. This situation turns the process into an “underground” relationship completely devoid of legal protection and left to the mercy of the parties.

2. Establishment of Lineage and the Crisis of the “Mater Semper Certa Est” Principle

The second complex legal issue in the surrogacy process is the inability to establish a legal lineage between the child and the intended parents. The Turkish Civil Code relies on certain presumptions and the principle of “Mater semper certa est” (The mother is always certain) rather than biological reality in the lineage regime. Article 282/1 of the TCC is clear: “Lineage between the child and the mother is established by birth”. This provision envisages a system that takes the woman who gives birth (gestational mother) as the basis for determining motherhood, rather than the genetic bond (egg owner).

In surrogacy cases, this rule legally ignores the bond between the genetic mother (egg owner) and the child. Even if the child carries the genetic heritage of the intended parents, according to Turkish law, the mother is the surrogate who gave birth to the child. This rigid rule completely closes the possibility of recognizing motherhood or linking it to the genetic mother by court decision. Even if the genetic mother proves through DNA tests that the child is her own biological offspring, she cannot be registered as the mother in the civil registry due to the mandatory nature of Article 282. This situation drops the genetic mother into the position of a “stranger” before the law, completely eliminating her rights of custody, inheritance, and personal relationship over the child.

The process of establishing lineage with the father involves similar difficulties. If the surrogate mother is a married woman, the “presumption of paternity” under Article 285 of the TCC comes into play, and the child is registered in the surrogate mother’s husband’s household with the father’s surname. In this case, for a lineage to be established between the genetic (biological) father and the child, the existing presumption of paternity must first be rebutted through a “denial of lineage” (soybağının reddi) lawsuit. Although recent annulment decisions by the Constitutional Court (e.g., annulment of the restriction on the mother’s right to sue in TCC 286/1) have facilitated the filing of these lawsuits, the process is still long, costly, and uncertain. After the presumption is rebutted, the genetic father can take the child under his name through “recognition” (tanıma) or a “paternity suit”. However, since the maternal bond remains with the surrogate mother, this creates a fragmented legal status for the child.

This deep contradiction between biological reality and legal fiction also violates the child’s right to identity. The child has a civil registry record different from their true genetic origin, which can lead to serious psychological and legal traumas in the future. The Turkish judiciary, by prioritizing “public policy” and “authenticity of lineage” above all else in lineage determination cases, allows no flexibility that would legitimize surrogacy. This rigidity can only be partially overcome through side paths such as adoption; however, the adoption process is subject to strict conditions and creates a paradoxical situation where a genetic parent must adopt their own child.

3. Crimes of “Altering Lineage” and “Tissue Trafficking” Under the Turkish Penal Code

The surrogacy process is not only a dispute in the field of family law but also a series of crimes requiring prison sentences. Biggest risk in this area is the crime of “Altering the lineage of a child” regulated in Article 231 of the Turkish Penal Code (TPC). The legislator has envisaged a prison sentence of one to three years for persons who intentionally alter or conceal the lineage of a child. At the end of the surrogacy process, registering the genetic mother as the “mother” in the civil registry instead of the woman who gave birth is the most typical form of this crime.

A “special intent” is not sought for this crime to occur; it is sufficient for the perpetrator to know and want the child to be registered under a woman other than the real mother. In practice, couples who have children through surrogacy abroad become perpetrators of this crime when they return to Turkey and have the child registered under themselves by tampering with the birth certificate or misleading hospital records. This crime is not subject to a complaint and has an eight-year statute of limitations; meaning that criminal prosecution can be initiated even years later when the irregular registration is uncovered.

Furthermore, pursuant to Law No. 2238 (ODSANHK), the application of reproductive cells and embryos to others and mediation for this purpose are strictly prohibited. Violation of this prohibition may bring “organ and tissue trafficking” or “mediation” crimes under Article 91 of the TPC to the agenda. Especially for intermediary institutions that organize the surrogacy process, those who advertise it, or those who receive commissions, prison sentences of three to five years and heavy judicial fines are prescribed. These regulations are evidence of the state’s fierce resistance to the commercialization of reproductive technologies.

Criminal liability covers not only parents and intermediaries but also doctors and health personnel who intentionally involve themselves in the process. In the event that birth is performed in a health institution and the lineage is then intentionally registered incorrectly, the relevant personnel are held responsible for the crimes of “forgery of official documents” and “altering lineage”. From a legal perspective, this intensive use of criminal law does not just ban surrogacy but codes it as a “crime against public order.” This situation deepens the problem by causing couples who go abroad to live in fear of judicial follow-up upon their return to Turkey and to avoid clarifying the legal statuses of their children.

4. Private International Law Dimension: Foreign Court Decisions and the “Public Policy” Barrier

The fourth fundamental problem faced by citizens who go abroad to bypass the bans in Turkey is the non-recognition of legal statuses established in a foreign country. In a country where surrogacy is legal, the lineage relationship established between genetic parents and the child is completely legal under that country’s law and is based on a court decision or an official birth certificate. However, for these decisions to have consequences in Turkey, they must be subject to “recognition and enforcement” (tanıma ve tenfiz) under the Law on Private International Law and International Civil Procedure (LPIL/MÖHUK).

Pursuant to Articles 5 and 54/c of the LPIL, in the event that the application of a foreign court decision or a provision of foreign law is clearly contrary to “Turkish Public Policy,” that decision shall not be recognized or enforced by Turkish courts. In the Turkish judicial system, the surrogacy ban is accepted as a part of “material public policy.” This is because the ban is based on fundamental state policies such as the protection of the traditional family structure, prevention of the mixing of lineage, and protection of the dignity of the female body. Therefore, the decision of a foreign court registering genetic parents as legal parents is seen by a Turkish judge as “circumvention of the law” and a “clear violation of public policy” and is rejected.

This “public policy barrier” gives rise to “limping legal relationships” in international surrogacy cases. While the child is the legal offspring of the genetic parents and a citizen of that country in the country where they were born, they are condemned to a status in Turkey where they have no legal bond with their parents, cannot obtain citizenship, and are sometimes even seen as a “product of an illegal transaction”. This situation creates blockages in every field, from the child’s freedom of travel to property rights. For example, when the civil registration of a child entering Turkey with a foreign birth certificate is not made, the child experiences great difficulties in accessing education and health services and is completely excluded from inheritance distributions.

Furthermore, the principle of reciprocity (mütekabiliyet) in recognition and enforcement cases also stands as another obstacle. If there is no judicial cooperation or a practice of de facto recognition between Turkey and the state where the decision was given, the decision may be rejected on procedural grounds. However, specific to surrogacy, even if reciprocity is provided, the public policy barrier always remains. The established precedents of the Court of Cassation (Yargıtay) are in the direction of rejecting enforcement requests if foreign court decisions regarding custody and lineage are contrary to the mandatory provisions of the Turkish Civil Code (especially regarding the joint exercise of custody or the determination of motherhood). This legal stalemate seems resolvable only through international conventions or a radical reform in domestic law.

5. Conflict Between the Best Interests of the Child and Fundamental Human Rights

The fifth and perhaps ethically most poignant issue in the surrogacy process is the conflict between the principle of the “best interests of the child” and the prohibitive policies of the state. Pursuant to the UN Convention on the Rights of the Child and Article 41 of the Turkish Constitution, the state is obliged to take all kinds of measures for the protection and development of children. However, in a system where surrogacy is banned, the rights of the child born through this method are often sacrificed to the aim of “making the ban deterrent”.

The most concrete reflection of legal problems is seen in the field of inheritance rights and social security. In Turkish law, heirship is generally dependent on the existence of a legal lineage. When a lineage is not established between the child born as a result of surrogacy and the genetic parents, the child cannot be the legal heir of these persons. In the event of the death of the intended parents, the child appears to be the heir of the surrogate mother, with whom they have no bond, instead of the persons with whom they share their lives and genetic ties. This creates a great injustice touching the essence of the right to property. Academic views argue that in requests such as the certificate of inheritance (veraset ilamı), courts should make a more flexible “public policy” evaluation by prioritizing the rights of the child already born rather than the illegality of the method.

The European Court of Human Rights (ECHR), in its revolutionary decisions such as Mennesson v. France and Labassee v. France, while accepting that states have the power to ban surrogacy, ruled that leaving children born abroad without an identity violates the “right to respect for private and family life” under Article 8 of the European Convention on Human Rights. According to the ECHR, states must recognize the bond between the child and the biological father and should at least place the relationship between the child and the genetic mother on a legal footing through paths such as adoption. Turkish legal practice has not yet fully aligned with these international standards.

The best interest of the child requires that they not be pushed into uncertainty on a “fait accompli” basis. However, Turkish courts see the protection of lineage as an “absolute value” and actually punish the children by depriving children born from surrogacy of a legal status. Yet, the child has no will or fault over their own birth method. Consequently, in surrogacy cases, this tension between the state’s “deterrence” policy and the “high interest of the child” continues its existence as a critical issue in Turkey’s human rights report card.

Conclusion and Evaluation

Turkish Law has approached the issue of surrogacy from a “prohibitive” and “protective” perspective, viewing this process as a threat to the family and lineage order, which are the cornerstones of society. The five fundamental issues examined—invalidity of contracts, inability to establish lineage, heavy criminal sanctions, international recognition barriers, and child rights deprivations—are the natural results of the state’s uncompromising stance on this issue. However, the unstoppable progress of biotechnology and the trans-border relationships brought by globalization cause these strict bans to create “limping statuses” and “rights violations” in practical life.

In the future, it is a necessity for Turkish law to produce “pragmatic and child-centered” solutions that will guarantee the fundamental rights of children born through this method, even if it does not legitimize surrogacy as a reproductive method. The decisions of the Constitutional Court expanding the periods of prescription and the authority to sue in lineage cases are important steps taken in this direction. However, the real solution will be possible only by redefining the concept of public policy on the axis of “fundamental rights of the individual and especially the child” rather than “ideological preferences of the state” and by stretching private international law rules in this direction. Otherwise, children seen as a miracle of medical science will continue to remain “invisible” in the gray zones of the legal system.