We are pleased to announce the release of a new edition of IBA Surrogacy Newsletter that is focused on the legal aspects of surrogacy in the world's major jurisdictions. It’s also worth mentioning that partner of AGA Partners Law Firm Irina Moroz, who is an expert in the field of family law, has contributed to this edition by describing peculiarities of surrogacy in Ukrainian and Russian jurisdictions.
Ukraine must not be mistaken for a surrogacy haven
Ukrainian legislation regulating assisted reproductive technologies (ART) favours the individual’s reproductive rights and is considered to be one of the most tolerant in Europe. At first sight, there is nothing to be worried about. A married couple (either Ukrainian or foreign) applies for ART treatment to the clinic of their choice. Once the clinic and the method is approved they enter into a binding agreement with the surrogate mother, a woman aged 20–40, in good physical and mental health with at least one child of her own. The surrogate mother is delivered of a child and the intended parents’ names appear on the child’s birth certificate.
Thus, at first sight, Ukrainian jurisdiction might seem to be a surrogacy haven, but once you take a closer look, you will see a number of traps the intended parents should keep their eye on.
Pitfalls of surrogacy regulation in Ukraine
To be legally recognised as the parents and proceed with a child’s registration, the couple must comply with the basic requirements of Ukrainian Law. Pursuant to the Order of the Ministry of Health of Ukraine No 787 dd. 09.09.2013 (‘Order No 787’), ART is defined as a method of infertility treatment, whereas the intended parents are regarded as patients of ART treatment. In accordance with Article 123 of the Family Code of Ukraine, only married couples may be recognised as a child’s parents and shall proceed with the child’s registration. It means that cohabiting couples, single people and same-sex couples are prohibited from undertaking ART. Furthermore, to be registered as a child’s parents in Ukraine, at least one of the spouses shall contribute his/her genetic material along with the donor’s gametal cells. Donors may be known or unknown.
Before the ART treatment begins, commissioning parents and the surrogate mother enter into a surrogacy and childbearing agreement that stipulates their rights and obligations. Ukrainian legislation does not provide for a specific form of the agreement. Many issues, such as refusal to accept the child and terms of payment, fall outside the scope of the regulation; therefore, the terms of the surrogacy agreement are agreed at the parties’ discretion.
As was mentioned above, the intended parents are deemed to hold the legal status of the child’s parents from the very moment of conception and their names are listed on the birth certificate of the newborn baby. However, so as not to mislead foreign couples, their trespass towards exercising parental rights does not end up with receipt of the child’s birth certificate listing their names in Ukraine. The commissioning parents shall recognise their parental rights in the country of their residence and comply with the legislative requirements of their country in order to bring their child home.
Given what is set out above, Ukrainian legislation requires a number of improvements. In particular, there is a need to provide legal regulation of the surrogacy and childbearing agreement that will cover relations deriving from surrogacy arrangements and will comply with international surrogacy standards. There is also a need to find a solution to the problem of surrogacy treatment for foreign couples who come from countries where surrogacy is prohibited.
Absolute discretion of the surrogate mother to leave the child or hand him or her over to the intended parents
One of the major controversies of Russian surrogacy law is that the surrogate mother holds exclusive power whether or not to give her permission to the intended parents to register a child under their names. The commissioning parents might find themselves in a vulnerable position, being dependent on the surrogate mother’s decision.
Article 51 of the Family Code of the Russian Federation1 explicitly states that the registration of a child by the commissioning parents shall be accompanied by the written permission of the surrogate mother of a child. Furthermore, according to Article 16 of the Law on Acts of Civil Statuses, such permission shall be given only after the child’s birth and certified by the medical institution. In other words, the surrogate mother’s permission given on the child’s birth is a necessary condition for the child to be registered under the names of the commissioning parents. Any other documents, including the surrogacy contract, signed and given by the surrogate mother before the child’s birth, are not acceptable. Intended parents should not be tricked with promissory notes of any kind, even if they explicitly state the surrogate mother’s permission. However, once the permission that complies with the requirements of Article 16 of the Law on Acts of Civil Statuses has been given by the surrogate mother, the spouses’ parental rights may not be contested.
It should be noted that there are no legally binding instruments that might force the surrogate mother to give her permission. If she decides to register the child under her name, the Russian authorities will not prevent her from doing so.
The couple may seek remedy in court, but in the majority of cases, courts are reluctant to award the parental rights over the child to the commissioning parents. In this regard, we would refer to Order No 880-0 of the Constitutional Court dated 15 May 2012, where the court refused to admit the petition of the commissioning parents for recognition of their parental rights, prioritising the rights of the surrogate mother as a woman that gave birth to a child. In this course, the legislators should be guided by the principle of the best interests of the child and amend current laws by putting the rights of the commissioning parents above the rights of the surrogate mother.
Russian law, unlike legislation in the majority of European countries, allows single women and cohabiting couples to undertake a surrogacy programme on the same basis as married couples.5 Furthermore, the costs are comparably reasonable and procedures are simplified. Therefore, notwithstanding the potential risk that the surrogate mother might leave the baby, the Russian jurisdiction is known as being favourable for assisted reproductive technology (ART) treatment.
Irina Moroz, Partner in AGA Partners Law Firm