Surrogacy is not unique, it is one of the most common reproductive technologies among couples who, for various reasons, cannot have children. According to statistics – about 220,000 children in the world were born through surrogacy. It is worth noting that recently in Ukraine there have been more cases of appeals to surrogacy by citizens from countries where such technologies are prohibited by law. For example, some US states (Arizona, New Jersey, Indiana), France, Germany, Italy, Bulgaria, Portugal, Spain and Sweden do not recognize surrogacy. However, most often foreign countries do not prohibit surrogacy abroad, and even recognize children and parental rights for spouses after birth.
The current legislation of Ukraine does not define the concept of surrogacy, it exists only in public relations related to modern reproductive technologies. In legal terms, surrogacy is understood as the fertilization of a woman by implanting an embryo using the genetic material of the spouses for the purpose of childbearing and childbirth, which will later be recognized as descended from the spouses, usually on a commercial basis under a contract between the spouse and the mother.
The media is more likely to write about the moral and material side of surrogacy, but in this article we will cover only legal issues, as Ukraine is one of the few countries where surrogacy is allowed by law. Thus, the legislation of Ukraine regulates some aspects of surrogacy, namely: determines the paternity and maternity of a child born to a surrogate mother, establishes the rules of registration of documents in case of birth of a child by a surrogate mother, regulates the medical procedure for surrogacy.
The regulations governing the use of assisted reproductive technologies, namely surrogacy include:
– Constitution of Ukraine
– Family Code of Ukraine
– Law of Ukraine “Fundamentals of the legislation of Ukraine on health care”
– Order of the Ministry of Health of Ukraine September 9, 2013 № 787 “On approval of the Procedure for the use of assisted reproductive technologies”
– Order of the Ministry of Justice of Ukraine of October 18, 2000 № 52/5 “On approval of the Rules of state registration of civil status in Ukraine”,
Currently, the agreement between the surrogate mother and the biological parents on childbearing is the main means of legal regulation of relations between the participants of the surrogacy program. Such an agreement is the main document that defines the relationship of the biological parents with the surrogate mother. Given the fact that this agreement creates a special type of obligation that is not similar to the usual civil law, it should be notarized.
Thus, in addition to the essential terms of the contract (subject, price, procedure for reimbursement of the surrogate mother in connection with the contract, rights and obligations of the parties, the term of the contract, liability of the parties), the following important issues should be resolved:
– determination of the medical institution in which the surrogacy program will be implemented;
– specifics of medical artificial insemination;
– life and health insurance of a surrogate mother during pregnancy;
– duties and responsibilities of the surrogate mother to follow all the recommendations of the doctor, lifestyle and actual place of residence;
– the consequences of the birth of two or more children, depending on the subject of the contract, the price of the service, the rights and obligations of the parties;
– the birth of a physically or mentally handicapped child;
– the consequences of the death of a surrogate mother or biological parents;
– the period during which the surrogate mother must transfer the child to the genetic parents;
– the consequences of the surrogate mother’s refusal to give the child;
– the consequences of the biological parents’ refusal to accept the child;
– restriction of the surrogate mother’s right to travel abroad during pregnancy;
– the procedure for providing biological parents with information on the state of health of the surrogate mother and the embryo;
– grounds and consequences of early termination of the contract.
It is advisable to entrust the drafting of a surrogacy agreement (childbearing) to family lawyers who have practical experience not only in accompanying the conclusion of agreements, but also in court in disputes related to the appeal or recognition of paternity.
Taking into account legal practice, our lawyers also recommend that genetic parents, if they are afraid of a surrogate mother’s breach of their obligations regarding the number of embryos born, include a penalty in such agreements. In addition, the contract may prescribe the amount of compensation to the surrogate mother for the period of childbearing, as well as the procedure for reimbursement of expenses for her medical care, food and accommodation. And if the surrogate mother is married, the consent of the husband (written and notarized) to this procedure is required to sign a contract between her and the genetic parents. Fulfillment of the terms of the surrogacy agreement is controlled directly by its parties. The obligation to provide legal support for surrogacy is also dictated by the fact that in practice there are widespread cases of fraud or dishonesty of surrogate mothers, who may already during the pregnancy put forward more conditions, demand an increase in their fees, just undergo a cheap medical examination at the expense of customers. planning a pregnancy. In Ukraine, the agreement between the parents-customers and the surrogate mother does not require confirmation by special authorities and the need for trial. Ukrainian legislation does not prescribe or limit the amount of remuneration for antimony services. Depending on the terms of the procedure, the average cost for surrogacy services is from 10 to 20 thousand US dollars.
Family law stipulates that in the case of the transfer to another woman of a human embryo conceived by a spouse (male and female) as a result of the use of assisted reproductive technologies, the child’s parents are the spouses. Therefore, a marriage must be registered between a man and a woman in order to enter into a contract with a surrogate mother. Persons of the same sex as well as stateless persons cannot resort to this method of infertility treatment.
According to statistics, most people who apply for surrogacy in Ukraine are foreigners. Apparently, this can be explained by the fact that reproductive medicine in our country is at a fairly high level, and prices for such services are moderate, a kind of balance of price and quality. In addition, there are no artificial barriers to using surrogacy programs, the whole procedure is quite clear and transparent. Foreign citizens receive services of assisted reproductive technology in accordance with the requirements of current legislation. You can start the surrogacy program after the future parents of the child submit all the necessary documents and fill out the application. In a number of European countries, surrogacy also exists and is legal, but there it is several times more expensive than in Ukraine.
Only his biological parents are recognized as the legal parents of a baby born in Ukraine under the surrogacy program. The newborn child receives a birth certificate, which contains the names of his genetic mother and father – so the actual parents do not need to undergo a grueling adoption procedure. This principle protects the interests of the child so that he or she can grow up in a full family. The current Family Code of Ukraine from 2004 legalized surrogacy, as a result of which Ukrainian legislation has become one of the most favorable in the world for the implementation of this type of program.
However, foreigners may have problems with the impossibility of legalizing children in their parents’ countries. Difficulties arise at the stage of registration of documents for departure and legalization in the country of residence of genetic parents. Therefore, if there is a foreign element in such legal relations, family lawyers approach the analysis of the situation comprehensively, take into account the legislation of the genetic mother and father, prepare further documents for travel abroad and collect documents for legalization of the child, citizenship.
Here is an example of the existing case law of foreign countries on surrogacy with the participation of a foreign element. One of the cases heard by the Family Division of the High Court of Justice of the United Kingdom (judgment № FD08P01466 of 9 December 2008) on the application of a British citizen to recognize their legal parents as twins born to a Ukrainian surrogate mother under the Degree Act kinship ”, adopted on the basis of the Agreement on Artificial Insemination of Man and Embryology of 1990 (a Parental Order under the Human Fertilization and Embryology Act 1990). Although in the United Kingdom, unlike in Ukraine, surrogacy is not recognized on a commercial basis, this was not the main obstacle to the recognition of the British as the legal parents of a child born to a Ukrainian surrogate mother. However, the conflict between the laws of Great Britain and Ukraine was that, according to the 1990 Agreement on Artificial Insemination of Man and Embryology, if a surrogate mother has a husband, the legal parents of a child born to such a surrogate mother are considered surrogate mothers. with her husband. In Ukrainian law, as is well known, in the case of surrogacy, the child’s parents will be recognized as spouses who have a genetic connection with her (Article 123 of the Family Code). The decisive factor in determining the origin of the twins was the results of genetic testing of DNA, which established the British right to children born through surrogacy, giving them British citizenship.
The issue of legalization of the legal status of a child born to a surrogate mother was also raised at the level of decisions of the European Court of Human Rights. According to the case law of the European Court, Art. 8 of the Convention requires that national law provide for the possibility of recognizing the legal relationship between a child born under surrogacy arrangements concluded abroad and the prospective father, if he is the biological father. The absence of such an opportunity entails a violation of the child’s right to respect for private life, guaranteed by Art. 8 of the Convention.
In the judgment in Mennesson vs France (№65192 / 11) due to the absence of two children born in California under the Gestational Surrogacy Agreement and their prospective parents, the possibility of obtaining in France recognition of the parent-child relationship legally established between them in USA, the European Court found a violation of children’s rights to respect for private life (Article 8 of the Convention). In this case, the Court emphasized that respect for privacy requires that everyone be able to establish the components of their human personality, including kinship, which is an important component of the identity of a person who includes a legal parent-child relationship.
The Court considers that the general and absolute inability to obtain recognition of the relationship between a child born under surrogacy arrangements concluded abroad and the prospective mother is incompatible with the best interests of the child, requiring at least that each situation be considered in accordance with taking into account the special circumstances of the case.
In general, the case law of the European Court of Human Rights considers paternity to be an inalienable right of a person. The European Court of Human Rights in its judgment of 27.08.2015 in the case of Parrillo v. Italy stated that, given the economic and property orientation of the Convention for the Protection of Human Rights and Fundamental Freedoms, human embryos cannot be equated with property.
There are also cases in domestic court practice related to assisted reproductive technologies and the establishment of the fact of family relations between individuals. In a number of European countries, in particular, in Germany, Spain, Great Britain, there is a legal requirement to obtain a court decision in the country of birth of the child to confirm the family relationship. Without this, biological parents cannot legalize their family relationship with the child and register it in the country of their citizenship. Due to the fact that the current legislation of Spain provides for the possibility of registration of paternity for a child born by surrogacy, only in the presence of a court decision to establish the fact in the country of birth, foreigners had to apply to Solomyansky district court of Kyiv on establishing the fact of family relations between them and a child born due to surrogacy on the territory of Ukraine (case № 760/26991/19). The court is currently considering the case.
Thus, throughout the process, the assistance of a lawyer may be indispensable. Starting from the moment of preparation for signing the contract, ending with the control over the process of obtaining a child’s birth certificate and preparation of further documents for going abroad, legalization of the child, obtaining citizenship.
Our lawyers will be able to help you answer the following questions: How to find a reliable person for the role of a surrogate mother? What to prescribe in the surrogacy agreement? Is it possible to trust the clinic where fertilization will be performed? What is the responsibility of a surrogate mother? How to formalize a relationship after the actual birth? What documents must be issued to the child to travel abroad?
And also our qualified lawyers, in case of need of legalization and granting to foreign bodies of documents, will prepare the legal conclusion concerning legislative regulation in Ukraine of such auxiliary reproductive technology as surrogacy.