For many, we take for granted the ability to start a family. The following legislation applies to assisted reproductive technologies and associated organizational aspects of Ukraine surrogacy law, including international surrogacy programs and egg donation:
- The Law of Ukraine 2801-XII of 19/11/1992 Fundamentals of Health Legislation of Ukraine;
- Instruction on Procedures for Assisted Reproductive Technologies, adopted by the Order of the Ministry of Health of Ukraine No. 787 of 09/09/2013 (hereinafter referred to as Instruction on Procedures for ART)
- The Family Code of Ukraine, adopted by the Law of Ukraine No. 2947-III of 01/10/2002;
- Provisions of the Civil Code of Ukraine of Ukraine pertaining to contractual obligations and representation;
- Provisions of the Revenue Code of Ukraine regarding personal income tax;
- The Law of Ukraine No. 3425-XII dated 02/09/1993 “On Notary”;
- The Law of Ukraine 01/07/2010 No. 2398/VI “On Vital Statistics Registration”;
- “Rules for Vital Statistic Registration in Ukraine”, adopted by the Order of the Ministry of Justice of Ukraine No. 52/5 of 18/10/2000;
- The Law of Ukraine 2235-III of 08/01/2001“On Citizenship of Ukraine”;
- The Law of Ukraine 3929-XII of 09/22/2011 “On Legal Status of Foreigners and Stateless Persons”.
Article 48 of the Law of Ukraine “Fundamentals of Health Legislation of Ukraine” defines that usage of IVF and embryo implantation should be conducted according to the norms established by the Ministry of Health of Ukraine on the grounds of medical indications of an adult woman who is going through the course of infertility treatment in the presence of a spouses’ written agreement, ensuring a donor’s anonymity, and the protection of medical secrecy.
Article 123, Part 2 of the Family Code of Ukraine expressly regulates children conceived through assisted reproductive technologies as a result of a Ukraine surrogacy program:
If embryos created by assisted reproductive technology are transferred into the body of another woman, the contracting couple shall be the parents of the child.
Thus, gestational surrogacy is absolutely legal in Ukraine, and the Family Code does not protect the rights of the gestational carrier (surrogate). Instead, it refers to the agreement that has been concluded between the surrogate mother and the commissioning parents.
Article 139 of the Family Code of Ukraine stipulates that a woman registered as the child’s mother in general may contest her maternal affiliation. However, contesting maternal affiliation of a genetic mother by a gestational carrier is expressly prohibited in Part 2 of this Article.
Thus, the child of a Ukraine surrogacy arrangement is legally considered to be the child of the intended parents from the very moment of its conception, and the surrogate mother has no rights to the baby. Surrogacy law in Ukraine is very pro intended parents.
Ukraine Surrogacy Law – Participation Prerequisites
- Medical indications + medical screening
Instruction on Procedures for ART sets forth the following medical indications to confirm qualification of the intended parents for Ukraine surrogacy program.
- Absence of a womb (inborn or acquired)
- Deformation of the cavity or cervix uteri, making pregnancy and delivery impossible
- Synechi of womb cavity
- Severe somatic diseases, making duration of pregnancy impossible
- Multiple (more than 4) implantation failures associated with the transfer of high quality embryos.
All these indications should be confirmed by relevant medical reports that need to be laid out on official letterhead of issuing medical institutions and contain signatures of the doctors (specifying full names and positions).
Both of the spouses, or the one who is going to provide his/her genetic material for creation of embryos, also need to undergo medicals tests to prove eligibility for participation in ART programs (e.g. serologies). The list of tests is confirmed by The Instruction on Procedures for ART and is standard for all IVF Clinics. If medical reports are issued outside Ukraine, they should be translated into Ukrainian by ab official translator.
- Marriage of the Intended Parents
It should be emphasized that according to Ukrainian legislation, gestation of a child by a surrogate mother is only possible if the intended parents are officially married. Therefore, they should present a marriage certificate. In the case of participation of foreign citizens, this document should be duly legalized or apostilled in accordance with the provisions of Convention of October 5, 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. Two options are possible:
- original of the marriage certificate with Apostille (preferred);
- or notarized copy of the marriage certificate, that has been previously apostilled. In such a case, the Apostille shall also be put on notarized copy (Original > Apostille > Notarized copy > Apostille).
- Genetic link of at least one of the Intended Parents to the fetus
If the surrogate mother candidate meets all medical, psychological and individual requirements of the intended parents and they decide in favour of her, a Child-Carrying Contract is signed between them. This contract is to be executed in writing and before a Notary in two copies – one for the intended parents and one for the surrogate mother.
Contract involving foreign citizens should be executed in two languages: in Ukrainian and the native language of the foreign party.
Signature by Means of Representation
According to various legal acts, the intended parents have a right to issue a Power of Attorney in favour of an individual or legal entity (company) with authorization, including, but not limited to:
- to conclude and approve contracts for an assisted reproductive technology program in any licensed medical centre in Ukraine;
- to conclude – upon prior agreement with the Principals – the Child-Carrying Contract with the Surrogate Mother, the subject of which is rendering services by the Surrogate Mother, which are associated with the use of in-vitro fertilization and embryo transfer;
- to perform any other actions associated with conduct of the surrogacy process (making decision about cryopreservation of unused embryos, receiving of personal information on surrogate mother and others) etc.
This Power of Attorney should be notarized and if it is issued outside Ukraine, it should undergo the procedure of arranging Apostille (if the country is a member of the Convention of October 5, 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents) or consular legalization (Article 100 of the Law of Ukraine “On Notary”.
In case there is necessity to change the Surrogate Mother or the Child-Carrying Contract with the Surrogate Mother is terminated, the Representative of the Intended Parents, who is duly authorized by the Power of Attorney, is entitled to sign Child-Carrying Contracts with the new candidate(s) without additional authorization.
However, it is very important that in case of eventual revocation of the Power of Attorney the Intended Parents immediately inform their Representative and all third persons, who are involved in the process (e.g. medical institutions, the Surrogate, Notary certifying the Child-Carrying Contract etc.) thereof.
As for birth registration of a child, it is worth noting that Ukrainian legislation is very favourable in this regard, since the names of intended parents are recorded in the birth entry of the Vital Statistics Office from the very beginning.
Pursuant to the Rules for Vital Statistics Registration in Ukraine, such registration upon applications of foreign citizens and stateless citizens is conducted in compliance with the Ukrainian legislation. If a child was born by the woman, impregnated with an embryo originating from the spouses, the birth registration is conducted upon the application of the married couple, who gave consent to implantation. It is only necessary to submit to the Vital Statistics Office a notarized consent of a surrogate to record the names of the spouses as the child’s/children’s parents; the document, confirming the fact of the child’s birth and certificate on genetic relationship of intended parents to the child. In this case, the contracting couple is duly registered as parents of their new-born child/children and only the column “Remarks” contains a record indicating the name of the surrogate mother. However, this record is kept with the Vital Statistics Office and is confidential.
Provided all documents are ready, birth registration takes a couple of hours in the Vital Statistics Office, and the birth certificate is issued on the same day of application. As a matter of practice, obtaining birth certificate is performed within 5 working days upon birth of the baby.
Thus, the Intended Parents enjoy official status as legal parents of the newborn baby(ies) born by the Surrogate in Ukraine, whereas the Surrogate and her husband (if any) acquire no parental rights.
Citizenship Of Babies Born Through Ukraine Surrogacy
In the frame of the Law “On the Citizenship of Ukraine” there is no room for automatic acquisition of Ukrainian citizenship by a child born by surrogate mother in Ukraine as a result of transfer of an embryo, conceived by a foreign married couple. A child born within the territory of Ukraine by foreigners can acquire the citizenship of Ukraine only in the event that the child has not acquired the citizenship of his/her parents, and that the parents live permanently within the territory of Ukraine on legal grounds (Article 7).
Foreigners and stateless persons shall enter/exit Ukraine through the crossing points on the State frontier in case of presence of a national passport and a visa, if otherwise is not specified by the Ukrainian legislation. Citizens of the States which have concluded international agreements with Ukraine on visa-free travelling enter into/exit from Ukraine with a valid national passport.
Hence, the Intended Parents have to take steps for obtaining passport or visa for their newborn child/ren as the last step of surrogacy program in Ukraine.
In case of urgent medical aid need overseas for the newborn baby, born by the Surrogate Mother in Ukraine, close cooperation with relevant Embassy of the foreign country in Ukraine is needed.