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Gestational Surrogacy – Yes, it is Legal and Regulated in Ukraine!

March 18 2021
by Roman Kolos
March 18 2021

Internet is full of contradictive information as to legality of surrogacy arrangements in Ukraine. A question whether surrogacy process is regulated or not causes even more uncertainty.

As a lawyer specialised in this field, I may assure you that gestational surrogacy is fully legal and regulated in Ukraine! Is there a room for improvement? Of course there is. But most grey areas may be easily covered by the industry self-regulation (e.g. by guidelines or recommendation of respective professional association) or at the contractual level (e.g. in a contract between prospective parents and agency and respective contracts with an egg donor and a surrogate mother). To my opinion, what really require attention of the law makers are discriminatory provisions with respect to surrogacy treatment for gay parents and single men or women.

The key legal principles that relate to surrogacy process are established by the Family Code of Ukraine (Art. 123 and 139). Discussed provisions establish parental rights of prospective parents in relation to a child conceived by them with help of assisted reproduction technologies. In particular, in case of surrogacy procedures, prospective parents obtain parental rights to the child from the moment of embryo transfer. Furthermore, the gestational carrier (surrogate mom) has no legal rights to such child and may not challenge the maternal rights of intended mother. For prospective parents it means that immediately after the birth they obtain certain rights and also obligations towards the child. In particular, obligations to:

  • take the child from the maternity hospital;
  • give name and register child with authorities;
  • protect and maintain the child, etc.

Organisational and medical part of surrogacy programs is covered by another legal act – a regulation “On application of assisted reproduction technologies in Ukraine”, approved by the Ministry of Health and registered with the Ministry of Justice (making it a fully legally binding document). It is a very detailed document that establishes eligibility criteria for prospective parents and gestational carriers, outlines the protocol for surrogacy treatment, as well as legal formalities for the involved parties, establishes certain additional licensing requirements for the clinics that offer infertility treatment with use of assisted reproduction technologies, etc.

There is a legal requirement that relations between prospective parents and a surrogate mother shall be formalised by a written surrogacy contract executed in a notarised form. Ukrainian law does not contain any strict requirements as to contents of such contract. Consequently it is up to the parties to agree upon all details. Such contracts usually define whether it is an altruistic or paid surrogacy, details of compensation of surrogate pregnancy costs and expenses, exchange of information, choice of medical services providers, etc.

Of course, like in every area, there are some grey areas here as well. But those may be easily covered by a self-regulation. Such approach works perfectly well in United States, where American Society for Reproductive Medicine (ASRM) has very proactive position and regularly issues various guidelines, recommendations and policies that cover almost every aspect of assisted reproduction, from ethics to very narrow medical questions. Ukrainian Association of Reproductive Medicine may be not as advanced as ASRM, but don’t be surprised to find that many professionals in best surrogacy agencies and clinics in Ukraine are also ASRM and ESHRE members and do their best to adjust to best practices of those reputable societies.

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