Surrogacy is the carrying of a fetus and the birth of a child by a woman to another person or another person (future parents/parents). Genetic material (sperm and eggs) is used to conceive an embryo under laboratory conditions for the benefit of those individuals for whom this assisted reproductive technology (ART) is used. There are medical indications for surrogacy.
In Ukraine, a surrogate mother can be an adult legally capable woman with a healthy child of her own, at her own request and with no medical contraindications. If a woman is married, her husband’s consent is required.
Surrogacy in Ukraine: The Law
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:
Paragraph 2 of Article 123 of the Family Code of Ukraine: “In the case of transferring a human embryo, conceived by spouses as a result of applying ART, into the body of another woman, the parents of the child 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 No. 787 “On Approval of the Procedure for Application of Assisted Reproductive Technologies in Ukraine” of 09.09.2013.
Procedure No. 787 specifies conditions for surrogacy application:
availability of medical indications for the person/persons for whose benefit the procedure is performed;
The 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”).
Legal aspects of surrogacy in Ukraine
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 – the existence of a 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 is the main reason for the emergence of problems and notorious scandals.
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According to 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.