By: Olga Danchenko, Attorney at Law.
Since January 1, 2004, when the new Family Code was adopted, Ukraine has become an attractive destination for international surrogacy, offering affordable medical treatment along with highly qualified fertility specialists, as well as optimal choice of European type surrogate mothers and egg donors.
The key article of the Family Code of Ukraine on surrogacy numbered 123 (paragraph 2) stipulates that if the embryo conceived by the spouses using Assisted Reproductive Technology is transferred into the body of another woman, the spouses shall be the parents of the child. Such regulation allows the Intended Parents to be considered the child’s parents from the very moment of its conception, standing out among legislation of other countries where additional recognition of parentage, i.e. court parenting order or post-adoption procedure are needed.
Medical side of surrogacy is governed by the “Instruction on Procedures for Assisted Reproductive Technologies”, adopted by the Order of the Ministry of Health of Ukraine No. 771 of 12/23/2008 (hereinafter referred to as the Order No. 771).
Let us look in more details at the most essential issues arising from undergoing surrogacy programs in Ukraine.
Prerequisites for the Intended Parents
1. Medical or social reasons?
According to the Order No. 771 implantation of an embryo is conducted upon medical indications, provided informed written consent of both Intended Parents and the Surrogate and their statements on application of ART. These medical conditions are namely as follows:
- Absence of a womb (inborn or acquired)
- Deformation of the cavity or cervix uteri, making pregnancy and delivery impossible
- Synechi of womb cavity
- Severe somatic diseases, making duration of pregnancy impossible
- Multiple (more than 4) implantation failures associated with the transfer of high quality embryos.
Hence, surrogacy is only practiced in Ukraine for couples who face biological barrier to conceive and/or gestate a baby, and is not a viable option for social reasons (i.e. booming career, desire not to lose figure, a job based on good look etc.).
2. Marital status of the Genetic Parents? Any age limits?
Though Ukrainian legislation stipulates that each woman and/or man of majority age can undergo treatment by means of Assisted Reproductive Technologies on medical indication, and does not contain any straightforward prohibition for the use of surrogacy for co-habiting or semi-sex Intended Parents as well as single persons, in practice surrogacy is performed for officially married couples only. This is mainly caused by close interpretation of aforementioned Article 123 of the Family Code of Ukraine, handling exclusively outcomes of embryo implantation conceived by the spouses with no mention of other possible participants of surrogacy program.
As of today, there are no age limits established for the Intended Parents to undergo surrogacy program in Ukraine.
3. Gestational or traditional?
According to current Ukrainian law the child born as the result of artificial insemination pursuant to a traditional surrogacy program is deemed to be the child of the Surrogate Mother and the Genetic Father. If traditional surrogate mother is thereby married, her husband would be the legal father of this child. Thus, only gestational surrogacy programs are applied in Ukrainian fertility clinics.
Requirements for the Surrogate Mother
Pursuant to the Order No. 771 a Surrogate has to be a legally capable woman of majority age (over 18 years old), who has at least one healthy child of her own, provided her voluntary written consent and absence of contraindications for gestation of pregnancy.
In order to ensure smooth course of surrogacy program the Surrogate is carefully screened not only with regard to her excellent health condition, but also with regard to her ability to cope which emotional side of surrogacy, which is performed with a help of qualified psychologist.
Ideally, the Commissioning Parents should conclude the Medical Services Contract with fertility clinic or centre, where fertility treatment takes place, as well as the Child-Carrying Contract with the Surrogate.
It is worthwhile to note that commercial surrogacy is legal in Ukraine, which means that the Surrogate may be entitled to receive remuneration beyond the reimbursement of medical and other reasonable expenses. As per Article 623 of the Civil Code of Ukraine the contract price is fixed by agreement of the parties, so that there are no fixed limits for the value of the Surrogate’s final remuneration.
Bearing in mind that Ukrainian legislation does not contain any specific provisions for the construction of the is Child-Carrying Contract, it is highly advisable that the Surrogacy Contract includes as much details with regard to rights and responsibilities of the parties as possible, as well as regulates such real-life emergencies as: multiple birth; birth of a child with deformity or with special needs; stillbirth or miscarriage; failed embryo transfer attempts; necessary abortion on medical indications; divorce of the Genetic Parents; death of one or both Genetic Parents etc.
Birth registration in Surrogacy Cases
Ukrainian legislation is very favourable with regard to birth registration of the child born via surrogacy, since the names of Genetic Parents are recorded in the birth entry of the Vital Statistics Office from the very beginning, and only the column “Remarks” of the birth register records information with regard to the name of Surrogate Mother. However, this record is kept strictly with the Vital Statistics Office and is confidential.
Pursuant to the Law of Ukraine 07/01/2010 No. 2398/VI “On Vital Statistics Registration” and the “Rules for Vital Statistic Registration in Ukraine” No. 52/5 of 10/18/2000, birth registration upon applications of the foreign and stateless citizens is accomplished in the same way pursuant to the Ukrainian legislation.
The main benefit of such regulation is certainly the fact that parental rights of both Ukrainian nationals and international Genetic Parents are entered in the birth record outright, with no need to take any further steps for establishment or confirmation of the child’s affiliation.
In cases where surrogacy is performed with the use of egg or sperm donation the basic adjustment remains the same: both Intended parents are deemed to be legal parents of the child born through surrogacy in Ukraine, while the donor should have no rights and obligations with regard to the baby, as the child shall have no rights and obligations toward the egg/sperm donor.
Citizenship of the Newborn Baby
In the frame of The Law of Ukraine No. 2235-III of 01/18/2001 “On Citizenship of Ukraine” there is no room for automatic acquisition of Ukrainian citizenship by a child born in Ukraine by the Surrogate Mother as a consequence of surrogacy arrangement concluded with the foreign couple of the Intended Parents. The law stipulates that a child born within the territory of Ukraine by foreign citizens can acquire the citizenship of Ukraine by virtue of birth only in the event that the child has not acquired the citizenship of his/her parents, and that the parents live permanently within the territory of Ukraine on legal grounds. Hence, the Intended Parents shall proceed to obtain travel passport or visa for their newborn child/ren as the last stage of surrogacy program in Ukraine.
It appears that the law does not join up internationally, which means that, even if surrogacy legislation is straightforward in Ukraine, the Intended Parents may need to undergo additional legal procedures to secure their parental status and to bring their baby home. By this reason it is quite sensible for the Genetic Parents to explore the legal issues carefully prior entering international surrogacy arrangement. In the meanwhile, there are a number of international and regional efforts which have been, or are being, undertaken which touch upon issues related to the legal status of children in cross-border surrogacy cases, and we cannot but hope that one day an international legal regulation of this burning issue will be established.
Taking into account the above, Ukraine enjoys one of the most favorite surrogacy friendly laws in the world, and provided professional medical, legal and psychological support, this jurisdiction is proving to be a viable option for the Intended Parents struggling with infertility to reach their dream of parenthood come true.
Olga Danchenko, Attorney at Law: UkrLegis – International Legal Services