Ukraine is one of the several countries that allows married couples to give birth to a child through the Assisted Reproductive Technologies (hereinafter - ART) and provides opportunity to use it not only for Ukrainians, but for foreign couples as well. The main legal act, which regulates procedure for the application of ART, is the Order of the Ministry of Health Care of Ukraine No. 787 adopted on the 09 of September 2013 “On the Approval of the Procedure of Assisted Reproductive Technologies Application in Ukraine” (hereinafter - Order No. 787).
Unfortunately, Ukrainian legislation in the sphere of application of ART does not cover all aspects of the surrogacy program, especially when it comes to foreigners. However, it worth noting that in recent years there has been significant changes in the legal regulation of surrogacy programs, in particular:
- The right to undertake surrogacy program was given only for married couples, for husband and wife. Meanwhile, singles cannot exercise such a right.
- The right to use donor gametes in surrogacy program was clearly provided by law.
- The need to confirm the genetic link between the parents or one of the parents and child was provided by law. Such connection must be confirmed by a certificate in the form prescribed by the Order № 787.
- The need to execute written consent of the surrogate mother’s husband in the form prescribed by the Order № 787 was provided by law.
- The need to execute notarized agreement between the surrogate mother and the couple was provided by law.
In 2012 the Parliament of Ukraine has been considering the draft law number 8282 “On Amending Some Laws of Ukraine” (regarding limitations in the use of assisted reproductive technologies). Most important aspects of the bill included:
- Prohibition to establish the genetic link between the child and the surrogate mother, unless the surrogate mother is a relative;
- Limitation of the age of surrogate mother;
- An attempt to permit surrogacy programs for foreign couples.
However, the attempts to adopt that draft were not successful and that draft is still pending its further elaboration.
I would like to draw your attention to the legislation concerning the surrogacy application by foreign couples and legal aspects of recognition of parental rights over the child born through surrogacy programs in some countries.
Ukrainian legislation that prescribes surrogacy programs procedure for foreign couples requires major changes and improvement. However, while proposing amendments one should bear in mind the legal aspects of paternity for the child born via surrogacy programs in the foreign countries. Surrogacy is permitted in India, Ukraine, Georgia, Russia, and some states of America. France, Germany, Italy, Spain, Portugal, Bulgaria, Sweden prohibit the use of any form of surrogacy. In Belgium, Finland, law does not regulate the birth of the child through surrogacy programs. Australia, United Kingdom, Denmark, Israel, Canada, the Netherlands and some US states allow the use of non-commercial surrogacy only.
Until recently, there was no legal regulation of surrogacy programs in Ireland. To fill this gap, the legislators drafted the Child and Family Relationship Bill (2014), which will enter into force after publication. The bill is expected to allow the use of a non-commercial surrogacy only. Surrogate mother will be entitled to obtain compensation only of reasonable costs, which may include medical expenses, relocation, the cost of medicines and compensation for lost earnings.
How can parents establish parental rights for a child born via surrogacy programs? Under Irish law, a woman who gave birth to a child is considered to be a mother of this child, and future parents have no parental rights over the child. However, the parents who gave birth to a baby abroad after passing through surrogacy program have the right to obtain parental rights for the child by a Court Order for a Declaration of Parentage and Guardianship. For example, we advised the Irish citizens who after passing through surrogacy program in Ukraine have successfully recognized their paternity rights for a child born in Ukraine by obtaining a court order in Ireland.
The case RE: X and Y (Foreign Surrogacy) 2010 had a precedential effect for the recognition of parental rights to a child born via foreign surrogacy program.
According to the provisions of Section 27 of Human Fertilization and Embryology Act 1990 ( hereinafter - Act) a woman who carried a child as the result of the placing in her of an embryo is considered to be a mother of the child, regardless of where fertilization was done and where she was at the time of placing in her of the embryo. English court practice recognizes this provision as extra-territorial, i.e. applicable even when the parents were passing the surrogacy program in another country. British parents can establish their paternity by obtaining a Parental Order. Future parents should meet the following requirements of Section 30 of the Act in order to successfully fill application for Parental Order:
1. The husband and the wife must apply for the order within six months of the birth of the child.
2. At the time of the application and of the making of the order the child’s home must be with the husband and the wife, and the husband or the wife, or both of them, must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man.
3. At the time of the making of the order both the husband and the wife must have attained the age of eighteen.
4. The father of the child (including a person who is the father by virtue of section 28 of this Act), where he is not the husband, and the woman who carried the child must have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
5. The woman who carried the child should give the agreement for making of the order not less than six weeks after the child’s birth.
6. The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of—
(a) the making of the order,
(b) any agreement required by item(4) above,
(c) the handing over of the child to the husband and the wife, or
(d) the making of any arrangements with a view to the making of the order, unless authorized by the court.
In the above case, the court found that "reasonable costs" that may be reimbursed to surrogate mother in terms of item. 5 above may include loss of earnings, cost of treatment, medicine etc. According to the agreement signed between the surrogate mother and parents, the surrogate mother received compensation of 235 euros per month, and a fixed compensation of 25 000 euro. At the same time, 80% of this amount was paid to surrogate mother after giving her notarized consent to register parents in the birth certificate of the child, and the balance was paid to surrogate mother after giving her written consent to parents for making of parental order in England. The court concluded that these costs exceed the amount of «reasonable expenses» incurred by a surrogate mother and were in contradiction with the requirements of the Act. However, the court granted the Parental Order and found this compensation legitimate based on the principle of the welfare of children and the priority of the interests of children. Furthermore, the court noted that the lawfulness of such costs is a question of interpretation of the facts of each case and the parents who undertake treatment program abroad have to be very careful when agreeing all payments under the contract of surrogacy that might be legal in the country of medical treatment and illegal in the country of residence of parents and eventually become an obstacle to the establishment of parental rights over the child. The subject of a separate legal analysis in this case was also the good faith of parents and lack of fraudulent intent.
In one more case Re: IJ (A Child), 2011, concerning the recognition of parental rights over a child born in Ukraine using surrogacy, the court emphasized that foreign jurisdiction may provide commissioning parents with the legal status of parents, however this status is not recognized by national laws of England. Parents who go abroad to undertake the surrogacy program should receive professional advice in order to be sure that signed documents will comply with the national laws of England, not only in respect of matters of immigration, but also in relation to payments and will not be an obstacle for parents to recognize their parental rights in England.
The rules of law of England and Ireland indicate that obtaining a certificate of the child's birth in Ukraine is only the beginning of the legal path that parents should undertake to establish their parental rights over the child in the country of residence. Thus, the peculiarities of legal regulation of surrogacy in the country of residence must be considered at the initial stage of the paperwork with the clinic and the surrogate mother. Particular attention should be drawn to the payments made under surrogacy agreements.
Another important issue that should be mentioned is the lack of appropriate legal advice for foreign couples concerning the legal status of the born child and the procedure of establishing of parental rights for the child. This is the reason why different problems appear with obtaining travel documents for the child, registration of citizenship and establishment of parental rights to the child in the country of residence of foreign parents.
Problems that occur in conjunction with surrogacy programs for foreign couples cannot be resolved by simple prohibition or allowance to apply surrogacy programs. There are number of foreign countries where having a baby via surrogacy is permitted under certain requirements.
Summarizing all the above, we can conclude that Ukrainian legislation in the sphere of surrogacy treatment should be improved in the following areas:
1. Legal advice to future parents. To provide in law the need for foreign couples to obtain legal advice in the home country and in Ukraine concerning the legal status of the surrogate born child, rights and duties of parents.
2. Legal regulation of surrogacy agreement. To provide in law legal definition of the surrogacy agreement, payments under the agreement, the form of the agreement.
3. State control of the clinics. To provide strict control over compliance with legislation concerning ART application and prescribe the clinics’ liability for violations of requirements of the Order No. 787.
Ukrainian legislation on the application of the ART keeps up with the development of new technologies and provides the opportunity for couples to feel the happiness of parenthood, even when nature creates barriers to it. However, practicing lawyers in this field should remember that foreign couples can successfully establish parental rights over the child only when they comply with the requirements of Ukrainian legislation as well as with the laws of the country of residence of the future parents.
Irina Moroz, Partner at AGA Partners