Over the past five years Ukrainian surrogate mothers have given birth to over 4,000 babies for foreigners. The main argument in favor of Ukraine as a country to have a child from a surrogate mother is the relative cheapness of the procedure.
The most painful deception for parents is the lack of genetic connection between them and the child born to the surrogate. In 2019, Chinese couple Li Wei and Dai Qisyu faced a similar situation. The girl born to a surrogate turned out to be her own daughter. And under Chinese law, proof in the form of DNA testing is required in order for a birth to be acknowledged. At least ten such cases occur annually.
A common problem is also the surrogate's failure to live a healthy lifestyle during her pregnancy. And the result is the birth of a child with physical and/or mental disabilities. Moreover, the surrogate mother sometimes finds herself in inappropriate conditions through no fault of her own. A number of agencies require a surrogate to live the last months of pregnancy in the vicinity of the clinic. The lodging is not always rented under the proper conditions.
If the problem has already occurred, you need to think about what compensation may be obtained. And this issue is resolved in consultation with a lawyer.
It is optimal when one lawyer fully accompanies the surrogacy procedure from the moment the contract is signed. Then he can immediately find in the terms of the necessary paragraph on the responsibility of the party for non-compliance.
For example, one of the couples paid the future surrogate mother for an expensive medical examination before the embryo transfer. But the woman went home after the tests and refused to continue the procedure. Under the terms of the pre-contract, the court was able to recover compensation for the costs incurred by the biological parents.
A similar algorithm can be used to protect oneself in case of other abuses on the part of the surrogate. For example - if the surrogate mother "disappears" from view, having received the first payment from her customers. The main thing is not to pay such contribution "in an envelope", so that in court one can prove the fact of money transfer.
A surrogate mother may also protect herself from various unfairness on the part of clients or non-compliance with the terms by the clinic/agency. We are talking about lawsuits, where the main argument is the presence of respective obligations in the contract.
The legal aspects of surrogacy are based on the legal regulations of our country and on the contract made between the parties before the procedure. Problems and scandals in the surrogacy sphere arise due to gaps in the laws and due to the absence of mechanisms of bringing violators to justice.
There is no separate law on surrogacy. An attempt to adopt it was made by the Verkhovna Rada in 2012. But the law was vetoed by President Viktor Yanukovych. No similar attempts were made again.
If we look at the branches of law, surrogacy is family law. The main provisions of the law in this area:
- P.2 Art.123 of the Family Code of Ukraine: "In case of transferring a human embryo, conceived by spouses as a result of applying ART, into the body of another woman, the child's parents shall be the spouses".
- Article 281, Paragraph 7 of the Civil Code of Ukraine: "An adult woman has the right, on medical grounds, to have ART performed on her.
- Order of the Cabinet of Ministers of Ukraine No. 787 "On Approval of the Procedure for Application of Assisted Reproductive Technologies in Ukraine" of 09.09.2013.
Order No. 787 specifies the conditions for using surrogacy:
- availability of medical indications for the person(s) for whose benefit the procedure is carried out;
- spouses (or one of the future parents) should have a genetic link with the child;
- the surrogate must not have a direct genetic link with the child. In Ukraine only gestational surrogacy is allowed (a surrogate mother is considered a "gestational courier").
Ukraine is a de facto country of so called "commercial surrogacy". The legal framework contains a minimum of restrictions for the procedure, both for Ukrainian citizens and foreigners.
The prohibitions are as follows:
- Lack of medical indications for the biological mother, i.e. the ability to become pregnant, bear a fetus and give birth on one's own.
- Gender (partial) surrogacy - existence of genetic connection between woman and fetus that is carried (using surrogate's oocyte).
- Participation in the program as genetic parents of unmarried couples and single people.
- Participation in the program as a surrogate mother of a woman who does not meet certain medical requirements (age, health status, having a child).
If we consider the legal regulation of surrogacy in the world, there are different approaches to this issue.
We cannot say that the absence of a separate law or an excessively liberal approach to the legal aspects of surrogacy are the principal causes of problems and loud scandals. According to the experts, the following steps may help:
- Introducing administrative and criminal liability for abuses in the field of ART;
- regulating all aspects of infertility treatment in our country not only by citizens of Ukraine but also by foreigners;
- Introducing the concepts of "surrogate motherhood" and "infertility" into legislation.
Clause 6.11 of Procedure No. 787 contains a list of documents required for the procedure. This list includes "a notarized copy of a written joint agreement between a surrogate mother and a woman (man) or a spouse".
In addition to the surrogacy agreement document, the following documents are required:
- Patient's (spouses') application for use of assisted reproductive technologies, i.e. application of surrogate motherhood procedure to them
- Surrogate's application for participation in surrogacy and surrogate program
- Notarized application (consent) of a surrogate mother to carry the embryo of biological parents
- Notarized consent of spouse of surrogate mother to his/her wife's participation in surrogacy process
- Notarized Surrogacy Agreement (Surrogacy Contract), which was written about earlier
- Notarized statement (consent) of a surrogate mother indicating spouses (biological parents) as child's parents
- Certificate of an accredited medical facility on application of auxiliary reproductive technologies and genetic relationship of the child to one of the spouses (biological parents).
Such a contract is the main regulation under which surrogacy is performed; the documents in the contract's package have an auxiliary meaning. A correctly drawn agreement is a guarantee of minimizing legal risks for both the surrogate and the biological parents. An experienced attorney should draw up/analyze such a contract!
In addition to the generally accepted conditions, experts recommend that the contract should include force majeure events and contingencies:
- Miscarriage, stillbirth, termination of pregnancy for medical reasons.
- Dissolution of marriage by biological parents, death of one of the parents.
- Deterioration of the mother's health during pregnancy.
- Birth of twins / triplets.
- Birth of a child with a malformation that could not be diagnosed in the prenatal period and which is not related to the surrogate's violation of the recommended way of life.
- Legally, such a contract involves a performer (surrogate mother) and customers (biological parents). The performer undertakes to carry, give birth to, and deliver the child to the customers. The customers undertake to support the surrogate during the pregnancy, compensate her expenses (the expense items are prescribed in the contract), and then pay her remuneration.
The main items of expenses for the surrogate that should be outlined in the contract are:
- medical support;
- buying food, vitamins, medications, special clothes for pregnant women;
- Temporary relocation to another place of residence to maintain confidentiality (optional).
The surrogacy contract must include a section on the parties' liability for failure to fulfill their obligations. For example, penalties are specified.