By Oksana Voynarovska
More and more couples all over the world show a high interest in surrogacy as a method of overcoming infertility. However, in most European countries surrogacy is not only severely restricted but, in some cases, even illegal.
At the same time, in Ukraine surrogacy is not only allowed by law, but is a popular method of solving infertility problems, which is resorted to by not only Ukrainian citizens, but also foreign nationals. The use of the assisted reproductive technologies and surrogacy itself is allowed by the Family Code of Ukraine.
Surrogacy must be carried out solely in specially accredited medical institutions. To apply for surrogacy the intended parents must show certain medical evidence confirming that the couple is unable to bear a child on their own or their chances are too low.
The couple or one of the spouses must be genetically related to the future child. It means that an embryo should be conceived by using the egg and sperm of both or at least one of the spouses. At the same time, a surrogate mother may not be genetically related to the child, i.e. she may not be a donor of the egg to conceive the embryo.
A potential surrogate mother must be of full legal age (18 years old or over), physically healthy without any medical restrictions and must have a healthy child of her own. The surrogate mother must give an informed written consent to undergo a medical examination and to apply the method of surrogate motherhood. If a potential surrogate mother is married, her husband must give consent to his wife’s participation in the surrogacy program.
The relationships between the surrogate mother and the couple are regulated by an agreement. Ukrainian legislation does not establish any requirements for the form of such agreement or the conditions to be agreed within this agreement. Based on the available experience, the agreement typically contains the following conditions: a surrogate mother’s health status; conditions which a surrogate mother must comply with; a medical institution where the procedure will be performed; a surrogate mother’s remuneration, additional expenses, timing of payment(s); expenses connected with impregnation, pregnancy, act of delivery and registration of the child; procedure of child transfer and registration; any “force majeure” provisions, including delivery of a handicapped child, delivery of more than one child, delivery of a dead child, delivery complications resulting in a surrogate mother’s future infertility; confidentiality provisions and non-disclosure of information to the child or any third party, etc.
The relationship between the surrogate mother and the medical institution is usually documented in the form of the consent of the surrogate mother.
In Ukraine, the surrogate mother has no legal relationship to the newborn child and she can not keep the child against the parents’ will. In accordance with Article 123 of the Family Code of Ukraine, where the couple, or either of them, provides genetic material for conception, such couple is regarded as the biological parents of the child born by the surrogate mother. The same position is fully supported by the court practice established in the course of application of Article 123 of the Family Code of Ukraine.
Therefore, the couple can file an application for the birth certificate directly with the civil registration office. To do this, they must provide a notarized statement whereby the surrogate mother gives her consent to the registration of the couple as the parents of the child, as well as a medical record confirming the genetic relation of the couple or one of the parents to the newborn child. The fact that the child has been born to the surrogate mother will be stated in the birth record to be stored in the civil registration office. There is no mention of the surrogate mother in the birth certificate of the child.