Surrogacy legislation in Ukraine
The Family Code of Ukraine, which came into force on 01.01.2004, legalised surrogacy.Article 123 of this document determines that the parents of a child born from a surrogate mother are spouses, as their biological material was used for fertilisation. Consequently, only legally registered spouses may participate in a surrogacy relationship. Individuals (male or female) or couples living in a common-law marriage are deprived of this possibility.
Article 139, paragraph 2, of the Family Codeprohibits the contestation of maternity in cases where a procedure has been carried out for the transfer into another woman's body of a human embryo conceived by the spouses as a result of the use of assisted reproductive technologies.
In accordance with this article, the surrogate mother does not acquire parental rights in respect of the child. Thus, the surrogate mother cannot refuse to hand over the child if she changes her mind after the child is born. If the contract has sanctions for breach, the surrogate mother can also be held civilly liable.
The Civil Code of Ukraine in part 7 of article 281 provides that an adult woman or man has the right, on medical grounds, to have assisted reproductive technology programmes carried out on them in accordance with the procedure and conditions established by law. Part 1 of Article 290 of the Civil Code of Ukraine states that an adult capable natural person has the right to be a donor of blood, its components, as well as organs and other anatomical materials and reproductive cells.
The Act "Fundamentals of Ukrainian legislation on health care" provides that the use of artificial insemination and embryo implantation shall be carried out within the time limits and in accordance with the procedure established by the Ministry of Health of Ukraine, on the medical grounds of the adult woman with whom such a procedure is carried out, with the written consent of the spouses, preservation of the anonymity of the donor and observance of medical confidentiality. The Act also provides that health-care organisations and citizens have the right, in accordance with current legislation, to conclude agreements (contracts) independently with foreign legal entities and individuals for any form of cooperation, to participate in events held by the relevant international organisations, and to carry out foreign economic activities (art. 38, art. 40, art. 79).
Act No. 2235-III of 18 January 2001 on Ukrainian citizenship.
Law of Ukraine "On State Registration of Civil Status Acts" No. 2398/VI dated 01.07.2010, as well as "Rules of State Registration of Civil Status Acts" No. 52/5 dated 18.10.2000.
Subparagraph 2.2 of paragraph 2 of Order No. 140/5 of the Ministry of Justice of 18 May 2003 establishes the procedure for documenting the parental rights of spouses on the basis of a notarized consent to such an act, which must be given by the woman who gave birth to the child.
The "Instruction on the procedure for the use of assisted reproductive technologies", approved by Order No. 771 of the Ministry of Health of 22 December 2008 , provides that if foreign nationals are the parents of a child born by a surrogate mother, they must disclose the address of their temporary residence until the documents are drawn up and they leave the country for paediatric care and supervision (para. 10, para. 7).
"Rules for the entry of foreigners and stateless persons into Ukraine, their exit from Ukraine and transit through its territory", approved by Decree of the Cabinet of Ministers of Ukraine No. 1074 of 29.12.1995.
"Procedure for the use of assisted reproductive technologies in Ukraine" approved by the order of the Ministry of Health of Ukraine No. 787 dated 09.09.2013.
This document details the authorised procedure of surrogacy and its legal aspects. Surrogacy is defined as one of the assisted reproductive technologies that allows spouses to become biological parents of their child if one of them has congenital or acquired diseases causing infertility.
The obligatory conditions under which a
surrogacy relationship may arise are:
- the spouse
(or one of the prospective parents) for whose benefit the SM is carried out must
(must) have a genetic link to the child;
- the surrogate mother must not have a direct genetic link with the child.
The subjects
of civil legal relations on surrogacy are:
1. The customer
- a married couple. Married couples who have been recognised as infertile can
apply for reproductive assistance. They can be both citizens of Ukraine and
foreigners, but the obligatory condition is that they must be a man and a woman
who are married.
2. Surrogate
mother - a woman who undertakes the obligation to undergo the in vitro
fertilisation procedure. A surrogate mother may be an adult woman of full legal
capacity, provided she has a healthy child of her own, a voluntary written
application by the surrogate mother, and in the absence of medical
contraindications (clause 6.4 of the Procedure). It is allowed to carry a
pregnancy by close relatives of the future parents (mother, sister, cousin,
etc.).
3. A medical institution accredited by the Ministry of Health of Ukraine for such procedures. Subjects of legal relations can be only those health care institutions that have a licence to carry out business activities in medical practice, appropriate equipment and facilities, the requirements for which are established by the Order. At the same time, confidentiality about the application of the programme (medical confidentiality) is fully guaranteed in accordance with Article 40 of the Fundamentals of Legislation of Ukraine on Health Care.
Paragraph 6.11 of Order No. 787 contains a list of documents required for the procedure. This list includes "a notarised written contract between the surrogate mother and the spouses".
This contract is the main legal act on the basis of which surrogacy is carried out, the other documents from the contract package are of auxiliary importance. The possibility of concluding this contract and its basic principles are regulated by the following articles of the Civil Code of Ukraine: article 1, article 6, article 627, article 628, article 629, article 639. Thus, the principle of non-interference in the sphere of paternity allows persons to determine at their own discretion the moment when to become parents and, taking into account possible problems with reproductive health and technological progress in the field of medicine, - how to become parents. The principle of freedom of contract allows individuals to enter into transactions for the realisation of their own rights and interests. If such a contract is not provided for by acts of civil law, it must comply with the general principles of civil law. The principle of freedom of entrepreneurial activity provides opportunities for specialised medical institutions to provide surrogacy services for profit.
The contract may regulate various aspects: both medical rights, where it is clearly stated what medical examinations are carried out, what medical support and to what extent will be provided during the woman's pregnancy, etc.; and economic rights, concerning the remuneration of the surrogate mother, the financial costs associated with carrying and giving birth to the child. In some cases, additional monthly remuneration may be stipulated.
It also specifies the surrogate mother's obligations to fulfil all the doctor's recommendations, her place of residence, the period within which she must hand over the child to the genetic parents, the actions of the parties in case of birth of a child with genetic diseases, congenital defects, as well as in case of multiple births.
The biological parents-customers under this contract undertake to accept the child and to compensate the financial expenses of the surrogate mother, as well as, if provided for in the contract, the payment of remuneration. Also, the contract on surrogacy services may define other rights and obligations that do not contradict the legislation of Ukraine.
If the surrogate mother is married, the husband's consent (written and notarised) to this procedure is mandatory for signing the contract between her and the genetic parents.
After the birth of a child by a surrogate mother, the State registration of the child's birth is carried out at the request of the spouses who consented to the birth. The spouses, simultaneously with the document confirming the fact of the birth of the child by the surrogate mother, submit an application for the surrogate mother's consent to the recording of the spouses as the child's parents, the authenticity of the signature on which must be notarised, as well as a certificate of genetic relationship between the parents (mother or father) and the foetus.
The record of the surrogate mother is made exactly in the act record, but there is no such note in the birth certificate. The birth certificate contains information about the biological parents only. This approach is used in order to preserve the secrecy of birth through the surrogacy method.
However, the analysis of the legislative framework in the field of surrogacy in Ukraine allows us to conclude that despite the fragmentary regulation of surrogacy relations in several legal acts, such as the Family and Civil Codes of Ukraine, but more issues are regulated by subordinate legal acts (orders, orders, instructions).
This does not comply with Article 92 of the Constitution of Ukraine, according to which human and civil rights and freedoms, guarantees of these rights and freedoms and the basic duties of a citizen are determined exclusively by laws. The absence of a single legislative act that would comprehensively regulate the provision of surrogacy services and reproductive technologies in Ukraine has led to a number of problems.
In this connection, there are currently four bills registered in the Verkhovna Rada of Ukraine aimed at the legislative regulation of reproductive technologies: No. 6575, No. 6575-1, No. 6571 and No. 6571-2. All authors of the bills share a common vision of the basic principles of legislative regulation of ART. Let us analyse potential changes in the legislative framework and their consequences for foreign citizens if these draft laws are adopted.
1. Prohibition of advertising and mediation in ART, which provides for a ban on agencies that offer surrogacy services to foreign citizens in Ukraine to carry out commercial advertising of reproductive cell and tissue donation. This ban may lead to significant difficulties for foreign citizens in finding a suitable clinic and obtaining information about the services offered. This is due to the fact that restrictions in advertising reduce the visibility of clinics and their services, making the selection process less transparent and accessible. Without the ability to effectively seek information through advertising or intermediaries, prospective parents may find it difficult to find reliable and quality surrogacy services, which may ultimately affect their choice and satisfaction with the services.
2. Establishment of mandatory registration of foreign parents. If foreign citizens want to use the services of substitute motherhood, they must become registered in Ukraine. In addition, potential parents will have to provide official confirmation that the use of ART is allowed in their country and that they have permission to import a child born from a surrogate mother. Simply put, the Ukrainian authorities want to provide guarantees that the child will not be left behind in Ukraine. But at the same time, this may create additional difficulties for foreign citizens, especially those whose country of residence prohibits surrogacy by law.
3. Establishment of the amount of minimum monetary compensation related to donation of reproductive cells. In fact, this is a guaranteed minimum level of payment for the service. Genetic parents, if necessary, are obliged to pay for the provision of not only medical care, but also psychological support to the surrogate mother after the birth of the child. Thus, the amount of payment for the surrogate mother's services agreed at the beginning may increase.
4. Introduction of criminal liability for violation of the ART procedure. For violation of the procedure, officials and medics may face up to 2 years' imprisonment with deprivation of the right to engage in certain activities.
Disclosure of information about the use of ART against the will of persons involved in its application is punishable by a fine of up to 1.7 thousand UAH, or community service for up to 240 hours, or correctional labour for up to two years.
The state also plans to pay special attention to detailing the rights and obligations of genetic parents with foreign citizenship, to minimise the risks of irresponsible abandonment of a child born, for example, with congenital diseases, and its placement in an orphanage (up to and including administrative and criminal liability).
In addition, the issue of citizenship remains controversial. In the case when the genetic parents are citizens of Ukraine or foreign citizens, it is easy to determine the citizenship of a child born through ART. But the case when the genetic parents are stateless persons is controversial.
According to Article 7 of the Law of Ukraine "On Citizenship of Ukraine", a person born on the territory of Ukraine to stateless persons who legally reside here is a citizen of Ukraine. At the same time, an analysis of the provisions of the Ukrainian Citizenship Act makes it clear that the special law does not provide for the acquisition of citizenship by a child born in the territory of Ukraine to stateless persons if they do not reside here legally.
Many disputes are also related to the establishment of the fact of kinship between genetic parents and a child born to a surrogate mother. This is due to the fact that the legislation of some countries, such as Germany, requires the genetic parents to obtain a court judgement from the country where the child was born, which establishes the fact of kinship between them and the child. Otherwise, the biological parents cannot legalise paternity in their country of citizenship and register the child according to the established procedure. Currently, there is no legal act regulating the importation of reproductive cells, embryos and tissues into the customs territory of Ukraine and exportation outside it, which may lead to corruption risks.
Also the problem of surrogacy at the moment is the martial law of Ukraine. On the one hand, some babies are already being born by surrogate mothers under such dramatic circumstances in Ukraine. Unfortunately, it is now impossible to transfer babies from Ukraine to their future parents in another country without significant risk.
On the other hand, there is now also a possibility that pregnant Ukrainian surrogate mothers fleeing the war in their home country may change their country of residence to, for example, Poland or Germany. But then the question arises: what happens if the child is born in these countries? Because in Germany (as well as in Poland and other EU countries) surrogacy is prohibited, unlike in Ukraine. What are the legal consequences for a surrogate mother when she gives birth to a child and gives it to the future parents? How is the child registered? How can the future parents prove their kinship with the newborn baby? From a legal point of view, who are the "parents" of the child? And are the persons involved committing a criminal offence under the law of the country where the birth will take place?
Thus, it can be concluded that surrogacy in Ukraine is a legally sensitive issue with many legislative risks and aspects. On the one hand, surrogacy is legally permitted in Ukraine. On the other hand, as for the risks and security measures for foreign citizens, it is obvious that even if we prescribe in the law and contract some special legal ways of protection of their rights and obligations, they will not be valid on the territory of another state, because these are national norms. Therefore, when choosing a country for surrogacy services, it is necessary to take into account all potential risks.
Head of judicial department «Success» surrogacy centre