Laws, that regulate surrogate parenting, the rights and obligations of a surrogate mother and those, for who she carries the child differ in different jurisdictions.
An important point when signing a surrogate parenting deal is the question, regarding the degree of awareness of all possible risks by those, who are involved in the process.
The most famous occurrence of a legal conflict, regarding surrogate parenting is the so called “Baby M incident” in the USA, when a surrogate mother refused to hand the child she gave birth to over to its biological father. In 1988 the Family Court of New Jersey ruled to put the child up for adoption and grant the father parental authority. However, the court also decided, that the surrogate mother must have visitation rights and have the opportunity to take part in the upbringing of the child.
The access to surrogate parenting programs for married couples is regulated by Decree № 787 of the Ministry of Health of Ukraine, signed September 9, 2013.
According to the decree, indications for access surrogate motherhood are as follows:
1. Congenital or acquired uterus absence;
2. Deformation of the cavity or cervix as a part of congenital malformations or as a result of illnesses, which make the bearing of a pregnancy impossible; synechia of the uterine cavity, not subject to therapy;
3. Severe somatic diseases, as a result of which bearing pregnancy threatens the health or life of the recipient, but not affecting the health of the unborn child;
4. Unsuccessful repeated attempts at ART (4 or more times) with repeated receipt of high-quality embryos, the transfer of which did not lead to the beginning of a pregnancy.
Legal support program for surrogate motherhood
The services of surrogate motherhood are allowed by law in Ukraine. Our country is one of the few countries in the world, that gives childless couples a chance to become happy parents.
From a legal point of view, the advantages of turning to the services of surrogate parenting are many:
1. The agreement, regarding surrogate parenting, which is made on a commercial basis is allowed in Ukraine without any kind of restrictions on the amount of the monetary reward, granted to the surrogate mother;
2. In order to apply to a surrogate motherhood program, permissions from any sort of governmental organisations (like in cases of adoption) are not required, and there is no need for the judicial review of the case;
3. There is no subsequent adoption procedure for the new-born;
4. The names of the biological parents are present in the birth certificate from the very beginning;
5. It is legally fixed – a surrogate mother in Ukraine does not have any parental rights to the child, which is born in a surrogate motherhood program. The rightful parents of the child are exclusively the biological parents.
Surrogate parenting in Ukraine is regulated by the following normative legal acts:
1. The Family Code of Ukraine;
2. The Law of Ukraine "On the state registration of acts of civil state "No. 2398 / VI as of January 1, 2010;
3. "Rules of state registration of acts of civil status" №52/5, as of October 18, 2000.
4. "Instruction on the use of assisted reproductive technologies », approved by the order of the Ministry of Health Ukraine №787 (z1697-13) as of September 9, 2013.
5. The Law of Ukraine "On the Citizenship of Ukraine" No. 2235-III as of January 18, 2001;
6. "Rules for the entry of foreigners and stateless persons to Ukraine, their departure from Ukraine and transit through its territory, approved by the Resolution of the Chamber of Ministers of Ukraine No. 1074 as of December 29, 1995.
The Family Code of Ukraine, which came into effect on January 1, 2004, has legalized surrogate parenting. Ukrainian legislature has become of the most favourable ones in the world for taking part in such sort of programs.
Article 123. Origin of the child, born as a result of the application of assisted reproductive technologies:
Part 1: In the event of the birth of a child, conceived by the wife as a result of the application of assisted reproductive technologies, carried out with the written consent of her husband, he is recorded as the father of the child.
In part 1 it is implied, that in the event of the birth of the child, conceived by the wife as a result of the application of assisted reproductive technologies, conducted with the consent of the husband, in the event, that the child is born, he will be named the father.
There is no difficulty, regarding the definition of the motherhood of such a child – it is determined on the basis of a medical certificate, which confirms the fact of the child’s birth. The father of such a child is recorded as the husband of the woman, who has given birth, assuming the presence some mandatory circumstances.
Firstly, he has to be married to the woman, who has given birth to the child as of the time of artificial insemination.
Secondly, he has to supply the agreement for such an insemination before medical interference. Circumstances of such consent being granted after the surgery are possible, but in such an event, that the paternity has to be determined on general grounds with the consent of the husband and on the grounds of his written application to civil registration authorities.
Part 2. With the transfer into a woman’s body the embryo of a person, conceived by spouses (a man and a woman) as a result of the application of assisted reproductive technologies, the spouses are the parents of the child.
In the second part of the commented article an event is described, when an embryo, which is conceived as a result of applying assisted reproductive technologies is implanted into the body of another woman. Their relationship with this woman, who is the factual provider of such a service, is regulated by a separate document. It provides the grounds for the further determining of such a child’s paternity.
In this case, together with the document, which confirms the fact of a child’s birth given by such woman, the registration authority shall be provided with her notarized written consent for registering the spouses as the child’s parents.
Moreover, in the graph “For notes” an appropriate entry is made, that the child’s parents are in accordance with the medial certificate of birth (form № 103/в95) the spouses, who have signed the agreement.
Part 3. The spouses are named parents of the child, given birth to by the wife after the transfer to her body of an embryo, conceived by her husband and another woman as a result of the application of assisted reproductive technologies.
The third part of the article also provides for the involvement of a third person - a woman whose embryo, conceived by her husband, is transferred to the body his wife for the further development and birth of the child. After the implementation into the body of the wife the embryo, conceived by her husband and another woman as a result of the use of assisted reproductive technologies, the spouses are recognized as parents of the child.
All these cases, when applied, oblige the spouses to register themselves as the father and mother of the child, who was born as a result of such interference in the reproductive function. The simultaneous application of these methods imposes a duty on other persons involved (donors of sperm, embryo donors, a woman who carries a child, conceived by spouses) not to take any measures to establish their maternity or paternity, and does not provide them with any protection in the event of the presentation of such claims.
Thus, part 2 article 123 of the Family Code of Ukraine strictly regulates legal relations of surrogate motherhood. According to the law, parental authority belongs exclusively to the married couple, who have given their consent for the application of assisted reproductive technologies.