The arrival of a new person in this world is always a holiday. Not everyone is happy to know this joy. Medical advances in reproductive technologies have given hope to those people who are already desperate to have children. But, as often happens, the development of science is somewhat ahead of the moral and legal adaptation of society to its new achievements. The rule of law is far from perfect and always follows the development of society. Legal support of surrogacy, as well as other programs based on reproductive technologies today, is one of the most difficult issues in modern legal practice.
The statistics of infertile couples in our country shows that not every Ukrainian woman can become a mother. On average, every fifth family is unable to have children; from 15% to 25% of married couples face this diagnosis for various reasons. But thanks to modern methods of reproductive medicine, there is a chance to become a real family.
The process of introducing ART methods in Ukraine began in the early 80s. In ART clinics, a surrogacy program is carried out for women with congenital or acquired absence of a uterus. In addition, quite often the reason for using the surrogacy program is somatic diseases, in which carrying a pregnancy and childbirth are not only a great burden for a woman, but also aggravate the course of the underlying disease (diseases of the heart, liver, kidneys, etc.).
Surrogacy is one of the methods of infertility treatment, in which the artificially fertilized embryo outside the body is transferred from the reproductive cells of the parents (who are being treated for infertility) into the body of another woman (surrogate mother), for further gestation and childbirth. A newborn baby is biologically and legally the child of the parents whose cells were used. The eggs of the surrogate mother are not used, because the surrogate mother has no genetic connection with the child.
The first reliable progress appeared only in 1989 with the birth of the first child to a surrogate mother. In our country, this program was first carried out in 1994. Despite the fact that surrogate mothers have been used for the opportunity to have a child for a long time, our attitude towards this is ambiguous. Some believe that in these cases, motherhood becomes the subject of trade and exploitation. Others say that the only opportunity for parents to have their own child genetically must be realized. Indeed, this issue has many aspects such as medical, ethical, psychological, family, social. But this sometimes the only possibility is determined for themselves by the parents. This is sometimes the only chance to have your own genetic child. A surrogate mother can be: a relative, an acquaintance of a married couple, or a woman they do not know.
Indications for surrogacy are regulated by order of the Ministry of Health of Ukraine No. 787 dated 09.09.2013
- absence of uterus (congenital or acquired),
- deformities of the uterine cavity or cervix,
- synechiae in the uterine cavity that cannot be treated
- diseases in which pregnancy and childbirth can threaten a woman’s life, but which do not affect the health of the unborn child,
- multiple unsuccessful IVF attempts (4 or more),
- severe somatic diseases.
Requirements for a surrogate mother: A surrogate mother can be a capable woman between the ages of 20 and 35, who has her own healthy child and does not have medical contraindications for carrying a pregnancy. A potential surrogate mother must have a Rh positive blood type. A woman should be in good health, not have mental disorders, chronic diseases and bad habits.
The surrogacy program includes:
- Surrogate mother examination (according to the Order of the Ministry of Health of Ukraine No. 787 dated 09.09.2013),
- Conducting an IVF program,
- Medical support of the IVF program for a surrogate mother,
- Psychological support,
- Monitoring and maintaining pregnancy.
The issues of remuneration of a surrogate mother and assistance during pregnancy are discussed by a married couple with a surrogate mother individually. Surrogacy is regulated in Ukraine by the following regulatory legal acts:
- Civil Code of Ukraine Article 281: (as amended on January 21, 2010 No. 1822-VI).
- Article 123 of the Family Code of Ukraine, clauses 1-3 (as amended by Law No. 524-V of 22.12.2006).
- Article 48 of the Law of Ukraine “Fundamentals of Ukrainian legislation on health protection” (as amended on February 12, 2008, No. 121-VI).
- Order of the Ministry of Health of Ukraine No. 787 dated 09.09.2013 “On approval of the Procedure for the use of assisted reproductive technologies in Ukraine.” From a legal point of view, the advantages of undergoing a surrogacy program in Ukraine are, in particular, the following:
- Surrogacy agreements concluded on a commercial basis are allowed in Ukraine without any restrictions on the amount of remuneration for a surrogate mother;
- No special authority permission is required (as is necessary in adoption cases);
- No need to go to court;
- No subsequent adoption procedure for a newborn child;
- The names of the genetic parents are indicated from the very beginning on the child’s birth certificate;
- According to the legislation, a surrogate mother does not acquire any parental rights in relation to a child born as a result of a surrogacy program. The legal parents of a child born to a surrogate mother are exclusively genetic parents.
The Family Code of Ukraine, which entered into force on 01.01.2004, legalized surrogacy, as a result of which Ukrainian legislation has become one of the most favorable in the world for this type of programs. List of documents for registering a child born by a surrogate mother: According to Art. 13 of the Law of Ukraine “On State Registration of Civil Status Acts” within a month after the birth of a child by a surrogate mother, the fact of his birth should be registered with the civil registration authorities. Registration of a child is carried out at the place of his birth (confirmed by a certificate from the maternity hospital) or at the place of residence of his parents or one of them (if the genetic parents are citizens of another state, registration is carried out at the place of residence of the surrogate mother). According to Clause 11 of Chapter 1, Section III of the “Rules for State Registration of Civil Status Acts in Ukraine” in the event of a child being born by a surrogate mother, birth registration is made on the basis of:
- statements by spouses (genetic parents);
- medical birth certificate, form No. 103 / o (issued at the maternity hospital);
- a surrogate mother’s statement of consent to the registration of spouses by the child’s parents, the authenticity of the signature on which must be notarized;
- certificate of genetic relationship of parents / mother or father / fetus;
- passports or passport documents proving the identity of the genetic parents (if the genetic parents are citizens of another state, the passport must be translated into Ukrainian with notarization) </ li>
- marriage certificate of genetic parents (if the genetic parents are citizens of another state, the marriage certificate must be apostilled and translated into Ukrainian with notarization).
- With the help of competent lawyers, prepare and conclude a legally competent agreement with a surrogate or reproductive mother, providing for a well-thought-out scheme for transferring compensation.
- Obtain written consent from the surrogate mother to participate in this program.
- Conduct a legal examination of the contract with a medical institution where the medical component of the above programs will be carried out.
- It is better to entrust any negotiations with a surrogate or reproductive mother to competent lawyers, or at least conduct these negotiations in their presence.
- Before the baby is born, get the surrogate or reproductive mother’s signature on all documents that may be needed in the future.
6. From start to finish, work with a law firm specializing in family law, which could, if necessary, represent the interests of parents (parent) in court in the event of any conflict situations. In any case, each program, each situation is unique and requires an individual approach. Considering that the customers of surrogate mothers’ services are people doomed to absolute childlessness, this program actually solves very significant social problems. These babies are very much awaited and loved… Of course, all these people deserve the most sincere respect, admiration and help.