The mechanism for protecting the property and non‑property rights of the parties to a surrogacy agreement in the Republic of Kazakhstan and some states of the USA

Abstract

The mechanisms for protecting the rights of the surrogate mother and the biological parents in the American model of surrogacy regulation are examined. In particular, the legal, financial, and insurance tools used to ensure the proper fulfillment of their obligations, as applied in the states of Illinois, California, Colorado, Nevada, New York, and Florida. The relevance of the topic is due to the fact that the agreement on carrying a pregnancy and giving birth is a civil contract containing complex and contradictory elements, compliance with which is in some cases impossible due to objective factors. The scientific novelty lies in the systematization of the mechanism for protecting the rights of the parties to a surrogacy agreement in the American and Kazakhstani legal systems, the identification of financial, legal, and insurance instruments within its structure, as well as the development of the author’s typology of legal models depending on their nature, content, and scope of legal regulation. The comparative legal analysis revealed significant differences in the legal regulation of the rights of surrogate mothers and biological parents in the jurisdictions under consideration, and also identified the possibilities for adapting certain approaches from the American experience to the legislation of the Republic of Kazakhstan and contract practice in the field of surrogacy. The authors put forward proposals aimed at ensuring the proper performance of obligations by the parties under a surrogacy agreement, the social protection of surrogate mothers during pregnancy, childbirth, and postpartum, the fair distribution of risks and consequences of the use of assisted reproductive methods and technologies among the parties, as well as the legal enforceability and protection of the agreement from subsequent challenges to its legality in court. The theoretical significance lies in the fact that in legal comparative studies, the issues of ensuring the protection of the property and non‑property rights of the parties to a surrogacy agreement have not been sufficiently developed. This study fills the gap that exists in comparative legal research. The practical significance lies in the fact that the scientific results can be used to improve legislation, develop mechanisms to ensure the protection of the rights of biological parents and the surrogate mother, and draft a surrogacy agreement.