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Legal aspects of reproductive medicine in Ukraine

March 24 2021
by Roman Kolos
March 24 2021

It’s quite rare today to meet a young person whose priority is to start a family and have kids. We often forget that while pursuing an education, a career, or life’s pleasures of travelling and discovering the world that the proverbial biological clock is ticking. Unfortunately, the ability to naturally conceive and give birth to a child starts to dramatically decrease when a person surpasses a certain age. Even with IVF, birth success rates drop from more than 30 percent for women younger than 35 years to a mere 3 percent for women aged 43 to 44. In such cases, very often a treatment that requires the use of a surrogate mother is the only option to have a child.

In many countries, surrogacy is banned or access to such treatment is very restricted. In other jurisdictions, the practice lies in a grey unregulated area, causing additional legal and practical risks for prospective parents.

Ukraine compares closely with the U.S. regarding the availability of such specialized infertility treatment techniques as oocyte (egg) donation, surrogacy, and preimplantation genetic diagnosis (PGD) or screening (PGS). In both countries such techniques are fully legal and regulated. The only difference is that the cost of such services in most cases will be much lower in Ukraine. Consequently, Ukraine has evolved to become a major destination for many intended parents, who seek affordable surrogacy arrangements outside the U.S. Owing to this phenomenon is that countries such as India, Thailand, and Mexico have either banned or significantly restricted access to such services for foreigners.

Let’s now focus on the questions that our clients most frequently ask. The answers were prepared by the co-founder of our agency, attorney-at-law Roman Kolos.

  1. 1. Who is eligible among prospective parents to participate in a Ukrainian surrogacy program
    Gestational surrogacy is available in Ukraine for married heterosexual couples with certain medical conditions. Unfortunately, the law currently does not allow such treatment for gay couples or single men and women. Citizens of other countries enjoy the same access to surrogacy services as Ukrainian citizens. There are no age limits for prospective parents to enroll in a surrogacy program. A surrogacy program may include the donation of oocytes or sperm. There is, however, a requirement that gametes of at least one of the intended parents are used to create the embryo. Consequently, it is not possible to use both donated eggs and sperm.
    Below is a list of medical conditions listed in Ukrainian law that serve as eligibility criteria for a surrogacy program:

    • absence of a uterus, deformation of the uterus cavity or cervix caused by congenital malformations or due to surgery and benign tumors that make pregnancy impossible;
    • structural-morphological or anatomical changes of the endometrium that lead to the loss of receptivity, synechiae of the uterine cavity, which are not treatable;
    • severe somatic diseases that may lead to health or life risks for the recipient during pregnancy, which, however, do not affect the health of the child;
    • unsuccessful IVF attempts (4 or more times) with numerous high-quality embryos, which did not lead to pregnancy after transferring them.

    Citizens of other countries enjoy the same access to surrogacy services as Ukrainian citizens. There are no age limits for prospective parents.

    As outlined above, the eligibility criteria mostly relate to the prospective mother and range from those that make pregnancy physically impossible, to those that impose health or life risks on the woman during pregnancy. Numerous failed IVF attempts are, however, the most commonly used justification for surrogacy treatment. Proof of the medical condition is done either by providing a Ukrainian clinic with an official medical statement from their physician or by undergoing the relevant screening and assessment directly at a Ukrainian clinic.

    Please also note that in most cases intended parents with HIV, Hepatitis B or C will be considered ineligible for enrollment in a surrogacy program in Ukraine. Any other type of existing infection will require prior treatment and retesting.

    A reputable assisted reproduction agency or clinic is also likely to deny a surrogacy program for intended parents whose country of origin will not grant citizenship to the newly born baby via surrogacy in Ukraine.

    Once all enrolment formalities are completed and a surrogate mother is duly matched, prospective parents shall enter into an official contract with her. Ukrainian law stipulates that such a contract is executed in a notarized form, meaning that it shall be signed in front of a Ukrainian notary in person by both intended parents and a surrogate mother. In some cases, an authorized lawyer can sign the contract on behalf of the intended parents. A properly drafted surrogacy contract shall cover all aspects of the relationship between the intended parents and surrogate mother. This includes the rights and obligations of both parties, compensation for and costs of the surrogate mother, confidentiality, as well as how the parties will handle any emergencies.

  2. 2. Who may become a surrogate mother (gestational carrier) and are there any restrictions?
    Based on legal requirements, a surrogate mother is an adult woman with full legal capacity and who has at least one healthy child of her own, subject to a voluntary written consent and absence of adverse medical conditions. There are no requirements that a surrogate mother should be a citizen of Ukraine.

    A surrogate mother may be an adult woman with full legal capacity and who has at least one healthy child of her own, subject to a voluntary written consent and absence of adverse medic al conditions.

    However, in order to avoid any legal complications related to the citizenship rights of the future child, a careful legal assessment of the situation will be required if a foreigner will be the surrogate mother. There are also no legal restrictions on the marital status of a surrogate mother under Ukrainian law. However, certain jurisdictions may require matching a surrogate mother who is not married in order to later avoid complications with obtaining citizenship and a passport for the newborn baby.

    There are no age limits for surrogate mothers, but in most cases clinics work with women who are not older than 35-38 years. A potential surrogate mother is required to undergo the following medical screenings:

    • evaluation by a physician of somatic health;
    • blood type and Rhesus factor;
    • clinical blood test;
    • coagulogram;
    • blood tests for syphilis, HIV, Hepatitis B and C;
    • blood tests (IgM, IgG) for toxoplasmosis, Chlamydia trachomatis, Cytomegalovirus, and Rubella Disease;
    • bacterioscopic analysis of swab obtained from the vagina, urethra, and cervical canal;
    • cytological analysis of swab obtained from cervix;
    • general gynecological examination;
    • ultrasound examination of pelvic organs;
    • blood tests for Anti-Müllerian hormone (AMH), Prolactin (PRL), Follitropin (FSH), Luteinizing hormone (LH), Progesterone (P4), and Estradiol (E2).

    If the physician in charge of the program is not fully satisfied with the screening results, they may reject the surrogate, require additional tests or prescribe certain treatment. This is done to ensure that the woman entering the program is fully ready for pregnancy and that any related risks for her and the baby are reduced to a minimum.

    A reputable agency will also psychologically screen the potential surrogate mother and conduct a background check to eliminate any potential risks for prospective parents.

    There are no legal limits as to how many times a woman may become a surrogate mother or how many children she may have on her own. Limitations apply to the surrogate’s health condition, and potential pregnancy and delivery complications that are assessed by the physician in charge of the program.

    Ukrainian law does not limit compensation for the surrogate mother and reimbursement of her costs related to the treatment. This area shall be regulated by the parties themselves in the relevant surrogacy contract, signed in front of a Ukrainian notary.

  3. 3. What parental rights do prospective parents and a surrogate mother have in relation to the child born via surrogacy?
    A surrogate mother has no legal rights to the child in a duly formalized surrogacy arrangement. Furthermore, the gestational carrier (surrogate mother) may not challenge the maternal rights of the commissioning mother, as it is directly forbidden by article 139 of the Family Code of Ukraine.Prospective parents are considered to be legal parents of the child from the moment of conception and automatically receive parental rights after the birth. It means that immediately after the birth (usually even before checking out of the maternity hospital) the intended parents will obtain the child’s Ukrainian birth certificate, where both of them will be listed as the child’s legal parents (the name of the surrogate mother is not indicated there). The birth certificate, however, does not equate automatic Ukrainian citizenship.

    Prospective parents are considered to be the legal parents of the child from the moment of conception and automatically receive parental rights after the birth. A surrogate mother has no legal rights to the child.

    If the intended parents (who are not citizens of Ukraine) wish for their child to obtain a Ukrainian citizenship, they are required to officially reside in Ukraine (hold residence permits) when they apply for their child’s Ukrainian passport.

    The most common situation is when the intended parents apply to the embassy of the country of their citizenship to obtain travel documents (passport) for the newborn. Different countries have different immigration laws regarding international surrogacy and approaches toward the surrogacy process. Thus, the ability of intended parents to obtain citizenship and travel documents (passport) for the newborn delivered by a Ukrainian surrogate mother will depend on many factors and require careful planning from when treatment starts. For example, many European countries that do not recognize surrogacy will most likely treat a woman who gave birth to a child (a gestational carrier) as the legal mother. The same would apply to her husband if she is married, even if the child is genetically related to both intended parents. Consequently, if the prospective parents are from one of those countries, they can only choose a surrogate mother who is not married. Some embassies may require the presence of the surrogate mother during appointments and that her consent is certified by an embassy officer, which means that such details must be agreed upon with a surrogate and be reflected in the corresponding notarized agreement with her. Some embassies may require that intended parents collect and present all pregnancy-related medical reports and also their photos with the child after the birth and up to the moment when the documents are submitted.

    In most jurisdictions, the parents will be also required to complete additional legal procedures upon their return home with the newborn. In many European countries, a so-called second parent adoption procedure will most likely be required or in some cases a parental court order to transfer parental rights from the surrogate mother to the commissioning mother, even if she de facto is the genetic mother of the child. Usually those procedures are rather simple and straightforward, nevertheless, careful planning and the involvement of a qualified lawyer is highly recommended in order to avoid any unpleasant surprises.

    It is never easy choosing a country for cross-border reproductive care. This is especially true for prospective parents who want access to broader and higher quality care, reduce the cost of care, and need to circumvent legal restrictions in their country of origin. Others simply want more privacy in relation to treatment procedures. Ukraine has much to offer to such prospective parents. Not only does it have clear legal regulation of the surrogacy process, but also vast experience in cross-border surrogacy treatment, comfortable logistics and reasonable prices.

    At Fertility Ukraine we are always happy to answer your questions and help you make this important decision. Our agency will be delighted to facilitate the whole process for you, including any legal and organizational aspects.

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