Summary

Although § 132 of the Penal Code establishes a ban on surrogacy, it does not rule out the possibility of surrogacy disputes with an international element ending up in Estonian courts.

Estonian private international law has no qualification category for surrogacy, meaning that there are no norms on which to verify the international jurisdiction of disputes on surrogacy and determine the applicable law. The topic is also unregulated on an international level. Estonian private international law only includes qualification categories for filiation, adoption, and other family law relationships between a parent and a child, meaning that the claims for establishment of maternal or paternal filiation due to surrogacy should be qualified under one of these three categories. The article analyses whether these categories are suitable for qualifying the claims for the establishment of maternal or paternal filiation due to surrogacy.

Although most of the disputes arising on surrogacy regard the establishment of a mother and a father of a child who has been born via surrogacy, the relationships between the persons who wish to become parents and the surrogate mother or a sperm donor can also not be ignored because surrogacy is an outcome of the prior agreements between these persons. That is why the article also addresses the establishment of the international jurisdiction of the claims that surrogate mothers, sperm donors, and the persons who wish to become parents can file against each other, and determining the law applying to them under Estonian legislation.