The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions:
- Are surrogacy agreements enforceable, void, or prohibited? Does it make a difference whether the surrogate mother is paid (commercial) or simply reimbursed for expenses (altruistic)?
- What, if any, difference does it make whether the surrogacy is traditional or gestational?
- Is there an alternative to post-birth adoption for the recognition of the intended parents as the legal parents, either before or after the birth?
Laws differ widely from one jurisdiction to another.
Video Surrogacy laws by country
Australia
In Australia, all jurisdictions except the Northern Territory allow altruistic surrogacy; with commercial surrogacy being a criminal offense. The Northern Territory has no legislation governing surrogacy. In New South Wales, Queensland and the Australian Capital Territory it is an offence to enter into international commercial surrogacy arrangements with potential penalties extending to imprisonment for up to one year in Australian Capital Territory, up to two years imprisonment in New South Wales and up to three years imprisonment in Queensland.
In 2004, the Australian Capital Territory made only altruistic surrogacy legal.
In 2006, Australian senator Stephen Conroy and his wife Paula Benson announced that they had arranged for a child to be born through egg donation and gestational surrogacy. Unusually, Conroy was put on the birth certificate as the father of the child. Previously, couples who used to make surrogacy arrangements in Australia had to adopt the child after it was registered as born to the natural mother; rather than being recognized as birth parents, however now that surrogacy is more regular practice for childless parents; most states have switched to such arrangements to give the intended parents proper rights. After the announcement, Victoria passed the Assisted Reproductive Treatment Act 2008, effective since 1 January 2010 to make only altruistic surrogacy legal.
In 2009, Western Australia passed a law to allow only altruistic surrogacy for couples of the opposite-sex only, and to prohibit it for single people and same-sex couples. In 2010, Queensland made only altruistic surrogacy legal, as did New South Wales, and Tasmania did the same in 2013 with the Surrogacy Act No 34 and the Surrogacy (Consequential Amendments) Act No 31
In 2017, South Australia passed a bill to allow gay couples equal access to both surrogacy and IVF. The bill received royal assent on 15 March, 2017 and went into effect on 21 March, 2017.
A Medicare rebate is not available for IVF treatment for surrogacy.
Maps Surrogacy laws by country
Canada
The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy: surrogate mothers may be reimbursed for approved expenses but payment of any other consideration or fee is illegal. Quebec law, however, does not recognize surrogacy arrangements, whether commercial or altruistic.
Quebec
The Quebec Civil Code renders all surrogacy contracts, whether commercial or altruistic, unenforceable.
Colombia
There are no clear rules in Colombia as of today regarding surrogacy and a loophole persists. The current laws applied are those from a natural childbirth. This means the child must be registered with the surnames of the surrogate mother and her partner or spouse, if she has any. Only through a challenging paternity lawsuit before a judge may the commissioning parents be recognized as legal parents, and it may include genetic tests.
In July 2016, a right wing political party, Democratic Center (Colombia), has introduced for the second time a bill in order to determine the concept of surrogacy and to forbid any types of it.
Czechia
Surrogacy is not legally regulated in the Czech Republic and is, therefore, generally considered legal. The only mention of the phrase "surrogate motherhood" can be found in § 804 of the law n. 89/2012 where the law designates an exception to the ban of adoption by siblings for siblings carried by a surrogate mother.
Finland
All surrogacy arrangements (both commercial and altruistic) have been illegal since 2007. Commercial surrogacy arrangements were illegal even before 2007.
France
In France, since 1994, any surrogacy arrangement that is commercial or altruistic, is illegal or unlawful and is not sanctioned by the law (art 16-7 of the Code Civil). The French Court of Cassation already took this point of view in 1991. It held that if any couple makes an agreement or arranges with another person that she is to bear the husband's child and surrender it on birth to the couple, and that she is choosing that she will not keep the child, the couple making such an agreement or arrangement is not allowed to adopt the child. In its judgement the court held that such an agreement is illegal on the basis of articles 6, 353 and 1128 of the Code Civil.
Georgia (Country)
Surrogacy, along with ovum and sperm donation, has been legal in Georgia since 1992. Under applicable law, a donor or surrogate mother has no parental rights over the child born.
Greece
Law 3305/2005 ("Enforcement of Medically Assisted Reproduction") Surrogacy in Greece is fully legal and is only one of a handful of countries in the world to give legal protection to intended parents. Intended parents must meet certain qualifications, and will go before a family judge before starting their journey. As long as they meet the qualifications, the court appearance is procedural and will be granted their application. At present, intended parents must be in a heterosexual partnership or be a single female. Females must be able to prove there is a medical indication they cannot carry and be no older than 50 at the time of the contract. As in all jurisdictions, surrogates must pass medical and psychological tests so they can prove to the court that they are medically and mentally fit. What is unique about Greece is that it is the only country in Europe, and one of only countries in the world where the surrogate then has no rights over the child. The intended parents become the legal parents from conception and there is no mention of the surrogate mother anywhere on hospital or birth documents. The intended parent(s) are listed as the parents. This even applies if an egg or sperm donor is used by one of the partners. An added advantage for Europeans is that, due to the Schengen Treaty, they can freely travel home as soon as the baby is born and deal with citizenship issues at that time, as opposed to applying at their own embassy in Greece. The old regime (pursuant to art. 8 of Law 3089/2002), one of the prerequisites for granting the judicial permission for surrogacy was also the fact that the surrogate mother and the commissioning parents should be Greek citizens or permanent residents. However, the law has recently (in July 2014) changed and the new provisions of L. 4272/2014 foresee now that the surrogacy is allowed to applicants or surrogate mothers who have their permanent or temporary residence in Greece. With this new law Greece becomes the only EU country with a comprehensive framework to regulate, facilitate and enforce surrogacy, as according to the explanatory statement of the art. 17 of the L. 4272/2014: "The possibility is now extending also to applicants or surrogate mothers who have their permanent residence outside Greece".
Hong Kong
Commercial surrogacy is criminal under the Human Reproductive Technology Ordinance 2000. The law is phrased in a manner that no one can pay a surrogate, no surrogate can receive money, and no one can arrange a commercial surrogacy (the same applies to the supply of gametes), no matter within or outside Hong Kong. Normally only the gametes of the intended parents can be used.
In October 2010, Peter Lee, the eldest son and one of the presumed heirs of billionnaire Lee Shau Kee obtained three sons through a surrogate mother, reportedly from California. Since the junior Lee is single, the news attracted criticism on both moral and legal grounds. A vicar general of the territory's Roman Catholic diocese was critical. In December the case was reportedly referred to police after questions were asked in Legco.
Hungary
Commercial surrogacy is illegal in Hungary.
Iceland
All surrogacy arrangements (both commercial and altruistic) are illegal.
India
UPDATE: As of November 4, 2015 commercial surrogacy is NOT LEGAL in India. Those commissioned before 11/4/2015 are reviewed on case by case situation; however, no new surrogacies will be started. (Confirmed by the US State Department website: http://newdelhi.usembassy.gov/service/reporting-births-and-citizenship-questions/surrogacy-a.r.t.-and-dna-testing
Commercial surrogacy is legal in India. India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with infertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK. In the case of Balaz v. Union of India the Honorable Supreme Court of India has given the verdict that the citizenship of the child born through this process will have the citizenship of its surrogate mother. The Assisted Reproductive Technologies (Regulation) Bill, 2013 was tabled in the parliament but not passed. Currently surrogacy is being regulated by the Indian Council of Medical Research guidelines, 2005.
Ireland
There is no law in Ireland governing surrogacy. In 2005 a Government appointed Commission published a very comprehensive report on Assisted Human Reproduction, which made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would under Irish law be regarded as the parents of the child. Despite the publication there has been no legislation published and the area essentially remains unregulated. Due to mounting pressure from Irish citizens going abroad to have children through surrogacy, the Minister for Justice, Equality and Defence published guidelines for them on 21 February 2012..
Israel
In March 1996, the Israeli government legalized gestational surrogacy under the "Embryo Carrying Agreements Law." This law made Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state. A state-appointed committee permits surrogacy arrangements to be filed only by Israeli citizens who share the same religion. The numerous restrictions on surrogacy under Israeli law have prompted some intended parents to turn to surrogates outside of the country. Same-sex couples can enter a surrogacy arrangement outside of Israel and have their legal parenthood recognized within Israel.
Iran
All surrogacy arrangements (both commercial and altruistic) are legal and popular. Many couples from middle east do the surrogacy in Iran due to the legal easiness.
Italy
All surrogacy arrangements (both commercial and altruistic) are illegal.
Japan
In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements.
Netherlands and Belgium
Altrustic surrogacy is legal in Belgium and the Netherlands. Only commercial surrogacy is illegal in Belgium and the Netherlands. Although altrustic surrogacy is legal, there is only one hospital taking in couples and there are extremely strict rules to get in. This makes a lot of couples seek their treatment outside the Netherlands or Belgium.
New Zealand
Altruistic surrogacy is legal.
Nigeria
Gestational surrogacy is currently practiced in Nigeria by a few IVF clinics. The guidelines are as approved by the practice guidelines of the Association of Fertility and Reproductive Health (AFRH) of Nigeria. The ART regulation that is currently being considered by the Senate permits surrogacy and allows some inducement to be paid for transport and other expenses.
Pakistan
Surrogacy is illegal in Pakistan.
Portugal
In 2016, Gestational surrogacy was legalized in Portugal. Discussions on the adoption of this law lasted more than 3 years. The first version of the law was adopted May 13, 2016, but the president vetoed it. He demanded that the law contained rights and obligations of all participants in the process of surrogacy. As a result, the text of the law has been updated, and now surrogacy is legalized and regulated by law in Portugal.
The basic rules of the law on surrogacy in Portugal Use the surrogacy services can only those couples, where the woman can not carry and give birth to a child for medical reasons. This should be documentally confirmed. Surrogate motherhood should be altruistic, the woman who agrees to carry and give birth to a child, shouldn't pay for services. The written agreement must be necessarily issued between the surrogate mother and the genetic parents. The rights and obligations of the parties as well as their actions in cases of force majeure should be included in it. After the birth, parental rights over the child belong to the genetic parents. According to the law, the surrogate mother is a woman of child-bearing age who agrees to carry and give birth to a child for the genetic parents, and she doesn't lay claim to be his mother.
Traditional surrogacy is illegal in Portugal except for some situations that give the right for a surrogate mother to be genetic (for example, if the future adoptive mother is completely barren).
Adoption of the law caused some debate within several Portuguese Christian Churches, though not among the once dominant Roman Catholic Church. Representatives of Brazilian and US based evangelical and pentecostal churches condemn surrogacy and suggest that infertile couples can/must (depending on the Church) pursue conventional adoption (national or transnational even though the later is banned by law).
Heterosexual and Lesbian Couples can become parents via surrogacy in Portugal as by 2016 all the risks of the program are provided and regulated by law (for example, the occurrence of developmental defects of the baby, miscarriage or abortion). Male Homosexual couples and single men and women of any sexual orientation have not yet been included, but they are not addressed specifically by the law which leaves an opening for a future revision in a more encompassing way). One such revision is on the current manifestos of several parties (the Left Bloc, PAN - People-Animals-Nature and Os Verdes - The Greens). They can count on the repeated opposition of the populist right party PP-CDS and the Portuguese Communist Party, the most socially conservative parties in parliament.
This means that gay couples are banned from altruistic surrogacy within Portugal and since the Constitution of Portugal explicitly bans discrimination on the basis of sexual orientation, this could be unconstitutional.
Russian Federation
Gestational surrogacy, even commercial, is legal in Russia, being available to practically all adults willing to be parents. There must be one of several medical indications for surrogacy: absence of uterus, deformity of the uterine cavity or cervix, uterine cavity synechia, somatic diseases contraindicating child bearing, or repeated failure of IVF despite high-quality embryos.
The first surrogacy program in Russia was successfully implemented in 1995 at the IVF centre of the Obstetrics and Gynecology Institute in St. Petersburg. Public opinion in general is surrogacy-friendly; recent cases of a famous singer and a well-known businesswoman who openly used services of gestational surrogates received positive news coverage. Meanwhile, the Russian Orthodox Church has officially condemned surrogacy. As regards the baptism of the children born through surrogacy, the Russian Orthodox Church holds that a "child born with the assistance of "surrogate motherhood" can be Baptized according to the wishes of the party that will be raising it, if such are either its "biological parents" or its "surrogate mother," only after they have recognized that, from the Christian point of view, such reproductive technology is morally reprehensible and have borne ecclesial repentance - regardless of whither they ignored the Church's position consciously or unconsciously".
A few Russian women, such as Ekaterina Zakharova, Natalija Klimova, and Lamara Kelesheva, became grandmothers through post-mortem gestational surrogacy programs, their surrogate grandsons being conceived posthumously after the deaths of their sons.
Registration of children born through surrogacy is regulated by the Family Code of Russia (art. 51-52) and the Law on Acts on Civil Status (art. 16). A surrogate's consent is needed for that. Apart from that consent, no adoption nor court decision is required. The surrogate's name is never listed on the birth certificate. There is no requirement for the child to be genetically related to at least one of the commissioning parents.
Children born to heterosexual couples who are not officially married or single intended parents through gestational surrogacy are registered in accordance to analogy of jus (art. 5 of the Family Code). A court decision may be needed in that case. On 5 August 2009 a St. Petersburg court definitely resolved a dispute as to whether single women could apply for surrogacy and obliged the State Registration Authority to register a 35-year=old single intended mother, Nataliya Gorskaya, as the mother of her surrogate son.
On 4 August 2010 a Moscow court ruled that a single man who applied for gestational surrogacy (using donor eggs) could be registered as the only parent of his son, becoming the first man in Russia to defend his right to become a father through court proceedings. The surrogate mother's name was not listed on the birth certificate; the father was listed as the only parent. After that a few more identical decisions concerning single men who became fathers through surrogacy were issued by different courts in Russia, listing men as the only parents of their surrogate children and confirming that prospective single parents, regardless of their sex or sexual orientation, can exercise their right to parenthood through surrogacy in Russia.
Liberal legislation makes Russia attractive for "reproductive tourists" looking for techniques not available in their countries. Intended parents go there for oocyte donation because of advanced age or marital status (single women and single men) and when surrogacy is considered. Foreigners have the same rights for assisted reproduction as Russian citizens. Within 3 days after the birth, the commissioning parents obtain a Russian birth certificate with both their names on it. Genetic relation to the child (in case of donation) does not matter.
Saudi Arabia
Religious authorities in Saudi Arabia do not allow the use of surrogate mothers, instead suggesting medical procedures to restore fertility and ability to deliver.
Serbia
All surrogacy arrangements (both commercial and altruistic) are illegal. A draft of the new civil law is said to allow surogacy mother, but Serbian Assembly still did not adopt this law yet. On April 21, 2017, the Serbian Assembly started a discussion a legislation on assisted reproductive technology that bans all forms of surrogacy. (The legislation is being discussed.)
South Africa
The South Africa Children's Act of 2005 (which came fully into force in 2010) enabled the "commissioning parents" and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty - although if the surrogate mother is the genetic mother she has until 60 days after the birth of the child to change her mind. The law permits single people and gay couples to be commissioning parents. However, only those domiciled in South Africa benefit from the protection of the law, no non-validated agreements will be enforced, and agreements must be altruistic rather than commercial. If there is only one commissioning parent, s/he must be genetically related to the child. If there are two, they must both be genetically related to the child unless that is physically impossible due to infertility or sex (as in the case of a same sex couple). The Commissioning parent or parents must be physically unable to birth a child independently. The surrogate mother must have had at least one pregnancy and viable delivery and have at least one living child. The surrogate mother has the right to unilaterally terminate the pregnancy, but she must consult with and inform the commissioning parents, and if she is terminating for a non-medical reason, may be obliged to refund any medical reimbursements she had received.
Spain
Whereas surrogacy is not legal in Spain (the biological mother's renouncement contract is not legally valid), it is legal to perform the surrogacy in a country where it is legal, having the mother the nationality from that same country.
Sweden
Surrogacy is not clearly regulated in Swedish law. The legal procedure most equivalent to it is making an adoption of the child from the surrogate mother. However, the surrogate mother has the right to keep the child if she changes her mind before the adoption. The biological father may nevertheless claim the right to the child.
It is illegal for Swedish fertility clinics to make surrogate arrangements. As an alternative, Sweden sanctioned the world's first uterus transplant in an infertile woman. The woman was 36 years old.
Switzerland
Surrogacy is regulated in the "Bundesgesetz über die medizinisch unterstützte Fortpflanzung (Fortpflanzungsmedizingesetz, FMedG) vom 18. Dezember 1998" and illegal in Switzerland. Art. 4 forbids surrogacy, Art. 31 regulates the punishment of clinicians who apply in vitro fertilisation for surrogacy or persons who arrange surrogacy. The surrogate mother is not punished by law. She will be the legal mother of the child.
On 24 August 2014, the Administrative Court of the Canton of St. Gallen granted parentship to two men of a child born in the USA.
Thailand
In response to the controversial Baby Gammy incident in 2014, Thailand since July 30, 2015, has banned foreign people travelling to Thailand, to have commercial surrogacy contract arrangement, under the Protection of Children Born from Assisted Reproductive Technologies Act. Only opposite-sex married couples as Thailand residents are allowed to have a commercial surrogacy contract arrangement. In the past Thailand was a popular destination for couples seeking surrogate mothers.
Ukraine
Since 2002, surrogacy and surrogacy in combination with egg/sperm donation has been absolutely legal in Ukraine. According to the law a donor or a surrogate mother has no parental rights over the child born and the child born is legally the child of the prospective parents.
In Ukraine the start of introduction of methods of supporting reproductive medicine was given in eighties of the preceding century. It was Kharkov where the extracorporeal fertilization method was for the first time successfully applied in Ukraine, and in 1991 a girl named Katy was born. Kharkiv was also the first city in CIS countries to realize surrogacy. Many clinics dealing with surrogacy have been opened in Kiev and Lviv.
Ukrainian surrogacy laws are very favorable and fully support the individual's reproductive rights. Surrogacy is officially regulated by Clause 123 of the Family Code of Ukraine and the order of the Ministry of health of Ukraine "On approval of the application of assisted reproductive technologies in Ukraine" from 09.09.2013 No 787. You can choose between Gestational Surrogacy, Egg/sperm Donation, special Embryo adoption programs and their combinations. No specific permission from any regulatory body is required for that. A written informed consent of all parties (intended parents and surrogate) participating in the surrogacy program is mandatory.
Ukrainian legislation allows intended parents to carry on a surrogacy program and their names will be on Birth certificate of the child born as a result of the surrogacy program from the very beginning. The child is considered to be legally "belonging" to the prospective parents from the very moment of conception. The surrogate's name is never listed on the birth certificate. The surrogate can't keep the child after the birth. Even if a donation program took place and there is no biological relation between the child and the intended mother, their names will be on Birth certificate (Clause 3 of article 123 of the Family Code of Ukraine).
Embryo research is also allowed, gamete and embryo donation permitted on a commercial level. Single women can be treated by known or anonymous donor insemination. Gestational surrogacy is an option for officially married couples and single women. There is no such concept as gay/lesbian marriage in Ukraine, meanwhile such patients can be treated as single women/men.
United Kingdom
Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognised under section 30 of the Human Fertilisation and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable so a surrogate mother maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made, the surrogate mother remains the legal mother of the child.
United States
Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child's legal parents. Some relatively surrogacy friendly states only offer support for married heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support.
States generally considered to be surrogacy friendly include California, Illinois, Arkansas, Maryland, and New Hampshire among others.
For legal purposes, key factors are where the contract is completed, where the surrogate mother resides, and where the birth takes place. Therefore, individuals living in a non-friendly state can still benefit from the polices of surrogacy friendly states by working with a surrogate who lives and will give birth in a friendly state.
Arkansas
Arkansas was one of the first states to enact surrogacy friendly laws. In 1989, under then Governor Bill Clinton, it passed Act 647, which states that in a surrogacy arrangement, the biological father and his wife will be recognized as the child's legal parents from birth, even if his wife is not genetically related to the child (i.e., in a traditional surrogacy arrangement). If he is unmarried, he alone will be recognized as the legal parent. A woman may also be recognized as the legal mother of the surrogate birth mother's genetic child as long as that child was conceived with anonymous donor sperm. On the other hand, it is unclear how or whether same sex couples could benefit these laws, since the 2008 ballot measure that made it illegal for unmarried, cohabiting individuals to adopt or provide foster care to minors. On June 26, 2015, the 2008 ballot issue is moot because of Obergefell v. Hodges.
California
California is known to be a surrogacy-friendly state. It permits commercial surrogacy, regularly enforces gestational surrogacy contracts, and makes it possible for all intended parents, regardless of marital status or sexual orientation, to establish their legal parentage prior to the birth and without adoption proceedings (pre-birth orders).
Michigan
Michigan forbids absolutely all surrogacy agreements. It is a felony to enter into such an agreement, punishable by a fine of up to $50,000 and up to five years in prison. The law makes surrogacy agreements unenforceable.
New Hampshire
Since 2014, New Hampshire is recognized as a surrogacy friendly state, with laws in place to protect all parties to a surrogacy arrangement. All intended parents, irrespective of marital status, sexual orientation, or a genetic connection to the child, are able to establish their legal parental rights through pre-birth orders placing their names directly on the child's initial birth certificate. Reasonable compensation to the surrogate is permitted by statute.
New York
New York law holds that commercial surrogacy contracts contravene public policy and provides for civil penalties for those who participate in or facilitate a commercial surrogacy contract in New York. Altruistic surrogacy contracts are not penalized, but neither are they enforced. New York does recognize pre-birth orders from other states, and has provided a post-birth adoption alternative for altruistic surrogate parents via orders of maternal and paternal filiation.
Lawsuits
Baby M: New Jersey 1988. The surrogate mother in a gestational surrogacy arrangement decided to keep the resulting child. The intended parents sued to have themselves recognized as the legal parents. The New Jersey Supreme Court found that the surrogacy contract was invalid as a matter of New Jersey public policy. However, the intended parents were given custody of the child because the courts thought they would provide a better home for the baby than the surrogate mother, who was instead given visitation rights.
Vietnam
Surrogacy for humanitarian purposes have been allowed in Vietnam from 2015 after The amended Family and Marriage Law passed with nearly 60 percent of votes from the National Assembly.
Under the new law, surrogacy will only be allowed among married couples, who do not have any common child, after doctors confirm the wife can not give birth even with technical support. The surrogate must be a relative of either the husband or wife, and have already given birth successfully. A woman is only allowed to be a surrogate once in her life and must produce her husband's approval if she's married. The embryo must be created by the intended parents' sperm and ovum. The process must be voluntary and follow in-vitro fertilization regulations.
References
Source of the article : Wikipedia
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