Surrogacy in Ukraine: Positive and Negative Aspects
Surrogate motherhood is a very profitable business in Ukraine. Every year a lot of foreigners come from countries where the procedure of surrogacy is illegal or costs a lot of money to get services of Ukrainians who will carry and give birth to their children for money remuneration. The cost of such service usually ranges from 20 to 45 thousand US dollars, and a surrogate mother will receive only 10-20% of them. The remaining amount will be given to agencies and other intermediaries. Despite of such a low fee surrogate mothers who wish to carry and give birth of another child in Ukraine is enough. Also, there are a lot of scams and unscrupulous agencies who want to make good money on foreigners and surrogate mothers.
Why is the sphere of surrogacy so attractive for fraudsters and unscrupulous persons? One of the first reasons for this may be the lack of clear legal regulations of this issue; only two Articles in the Family Code of Ukraine cannot provide answers to the breadth of issues that arise in surrogacy. Contractual relations which are established in Ukraine between spouses, doctors and the surrogate mother are not a 100% guarantee of performance of their obligations by parties. The problem is that the concept of surrogacy contract, as well as its definition, is not established by the legislation, and therefore the legal nature of the transaction / agreement of surrogacy is not fully clarified. That’s why such legal relationships are regulated trite and exaggerated in Ukraine, by the conclusion of a contract for services. However, as practice shows in most cases such an agreement is prepared by a medical clinic or a specialized agency, moreover, they often use boilerplate contract. At the same time, in order to save costs, potential parents or potential surrogate mothers do not receive from such clinics and agencies any professional support or legal advice. Even if a lawyer is present during the signing of the contract, as a rule, he plays along with the clinic or agency as he is interested in commission from the transaction and because of that many of the questions are ignored or false answers are given. All of this leads to the fact that the signed by future parents, surrogate mothers and the medical institution document has significant legal defects which means that these obligations can be ignored. So, often couples contract surrogate mothers and try to resolve the issues, and the clinic go away from the problems, because according to the contract they complete them. There are cases when the clinic fakes medical reports data about the health of surrogate mother or conceal some facts about surrogate mother’s health after examination, as it is almost impossible to bring clinic to responsibility for such actions. There were even some cases that clinic’s lawyers persuaded customers to sign a contract with a pregnant woman for making visibility of procedure of surrogacy, but according to law such contracts are invalid because it is not the surrogacy, it is the concession of an embryo.
Once again, because of the lack of specific legal regulations of surrogacy contracts in Ukraine there are some situations where surrogate mother begins to blackmail the genetic parents of the child. Even at the stage of pregnancy they ask to pay them twice sum than in the contract explaining that with inflation, devaluation and other economic reasons. The media mentioned even cases of threats of a surrogate mother to make an abortion if she does not get the required amount. And in such situations, couples are simply powerless before such arrogance and rudeness. Some girls make a full medical examination of the body and sometimes get treatment by the expense of childless couples and then just disappear. Or couples who choose to use the services of a surrogate mother are victims of fraudulent groups that are skillfully imitate search of candidates, medical procedures, including forged documents about successful implantation of oocytes etc.
But in spite of all these, Ukraine is still very attractive in terms of finding women willing to provide the service of surrogate motherhood, as it has many positive aspects. After all, surrogacy is prohibited by law in many developed countries, such as Austria, Germany, Italy, Switzerland, Poland, Norway, Sweden, France and some states of the USA. In other countries, such as Australia, Britain, Denmark, Israel, Spain, Canada, the Netherlands, some US states, only non-commercial surrogacy is permitted. This means, the surrogate mother does not receive for her service remuneration, at least officially according to notarized transaction. Ironically, people from those countries are most interested in reproductive technologies, because of that they draw attention to countries where these reproductive technologies are allowed, such as Russia or Ukraine. At the same time, Ukraine has a significant advantage for married couples, because law establishes a presumption of origin of the child from the parents – the donor of the genetic material, in contrast to Russia, where even in the absence of any genetic relationship with a surrogate mother, the last will have a priority right to decide the fate of a child – the right to genetic parents are recognized only after the rejection of a surrogate mother.
Also, we should pay attention to the quality of surrogacy contracts. Typically, such a contract is not less than 6-8 pages of text, but, for the most part, this volume is a direct rewriting of rules of Ukrainian laws. However, many outstanding moments are not displayed in the contract. In particular, we have never met any settlement of the situation in case of death of one or both genetic parents until the birth registration. But this is a complex issue, not to mention the fact that genetic grandparents and issues of the physical care of the child are a huge loading in the legal field.
So, before you decide to do such an important step, as the use of reproductive technologies of surrogacy, prospective parents must get quality legal advice. Nobody would argue that checking of licenses and certificates of clinics and agencies for compliance, and the right to perform artificial insemination, authentication of documents specialists (physicians who will conduct a survey of the health of the surrogate mother and carry yourself artificial insemination for a qualified formation of the contract) require the expertise of specialists in the field of law. Moreover, high-quality legal support is important not only at the time of signing the contract of surrogate motherhood during the whole period of the maintenance procedure.
Author: Kydalov Igor