As of today, the procedure for using surrogacy and other types of SRT has been approved by Order No. 787 of the Ministry of Health of Ukraine of 09.09.2013 (hereinafter – the Procedure).
Issues of surrogacy are discussed in Section VI of the Procedure. The Procedure determines the conditions and indications for surrogacy, requirements for surrogate mothers, and the algorithm of the program implementation.
According to the Order, if a child is born to a woman who had a human embryo transferred into her body, which was conceived by a friend as a result of the use of DRT, the child’s birth must be registered at the friend’s request, which gave consent to such a transfer.
In such a case, at the same time with the document certifying the fact of the child’s birth by this woman, a statement of her consent to the registration of the mate as the child’s parents, valid signature on which must be notarized, as well as the certificate of genetic relatedness of the parents (mother or father) with the fetus must be submitted.
The same provisions are also contained in Section 11, Chapter 1, Part II of the Rules for State Registration of the Acts of Civil Status of Ukraine, approved by the Order of the Ministry of Justice of Ukraine № 52/5. III Rules for State Registration of Acts of Civil Status in Ukraine, approved by Order of the Ministry of Justice of Ukraine № 52/5 of 18.10.2000.
By law, surrogacy is regulated solely by Article 123 of the Family Code of Ukraine, which states that a couple is recognized as the parents of a child born by a mate after the embryo conceived by her husband or another woman as a result of the use of assisted reproductive technology has been transferred into her body.
Ukrainian legislation does not contain any definition of surrogacy or a list of rights and duties of the participants of the surrogacy program and does not provide for liability for violations in the field of surrogacy, etc.
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This state of legal regulation creates the possibility of various kinds of abuse by clinics and mediators, violation of the rights of surrogate mothers, biological parents, and children. Now and then international scandals erupt when newborns cannot return with their biological parents to their country of citizenship or when law enforcement officers reveal the illegal activities of mediators. Because of the above, information about surrogacy programs is often broadcast as “baby-selling” and “criminal,” which leads to negative attitudes towards surrogate mothers and this type of childbearing in general, as well as to inertia against surrogacy.
Draft laws on the regulation of surrogacy were repeatedly submitted to Parliament for consideration. In particular, the draft law “On surrogacy motherhood” № 8703 of 17.06.2011, “About Amendments to Certain Legislative Acts of Ukraine concerning Restrictions on the Use of Assisted Reproductive Technologies” ¹ 8282 of March 23, 2011 (the law was adopted by the Supreme Council of Ukraine in January 2012, but due to the veto of the then President V.Yanukovych the law was never adopted). Yanukovych never became law), the Law on Additional Reproductive Technologies of 19.07.2018, alternative project No. 8629-1 of 01.08.2018, and other draft laws aimed at amending and supplementing Ukraine’s legal acts.
For these or other reasons, a comprehensive law that would ensure proper state regulation of surrogacy in Ukraine is currently missing. In our opinion, it is the adoption of a clear legal action that will ensure the regulation and state control of the SRT sphere, including surrogacy, will protect the rights of all participants in the process, prevent fraud and exclude encroachment on the SRT.
