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Surrogate mother from Ukraine: Law grounds

It is not a secret that an average childbearing age in the developed countries has significantly increased. Many people in developed countries live for a long time “for him(her)self” and star thinking about children only at the age of 40. And if such an age is not a problem for a man, a woman, even with modern medicine, may have some difficulties with the childbirth. In most cases the surrogacy is the only way.

A surrogate mother is a woman who by artificial insemination carries and delivers a child for another person or family who for medical reasons, or other reasons, is unable to conceive and deliver a child. The persons who want to have a baby using a surrogate mother decide for themselves a range of issues: choosing a potential candidate for the role of a surrogate mother who can carry a healthy offspring, financial issues, and a number of legal issues without resolving of which in future they may have serious complications.

Over the last years Ukraine becomes more popular as a provider of surrogate mothers for Europeans and citizens of other countries. It is not a surprise because of geographical proximity to Europe and affordable price for surrogate mother services in comparison with other European countries. However, there are some aspects that must be taken into consideration by parents who dared to use services of a surrogate mother from Ukraine.

The legal issues of surrogacy are regulated by the Family Code of Ukraine. The Article 123 of the Family Code of Ukraine provides the procedure of maternal and paternal affiliation in case of medically assisted procreation and ovum implantation. If a wife is fertilized by artificial procreation techniques upon written consent of her husband, the latter is registered as the father of the child born by his wife. If an ovum conceived by the spouses is implanted to another woman, the spouses shall be the parents of the child. Whenever an ovum conceived by the husband with another woman is implanted to his wife, the child is considered to be affiliated to the spouses. Consequently, legally in Ukraine the surrogacy is possible in 2 ways.

Instead, assisted reproductive technologies (ART) in the treatment of infertility, like insemination with donor sperm, is legal according to techniques and decisions of Ministry of health of Ukraine. Therefore, there are no restrictions of using of a surrogate mother for a lonely man who wants to have a child but the child’s origin recognition occurs in a general way, and this is the greatest problem for the rights of a lonely man: after delivery the surrogate mother may not want to give a baby to the father and no one can take the child from the biological mother without trial. The father can take the child from the surrogate mother only if the surrogate mother refuses a child after his(her) birth or if he deprives her parental rights in a court.

To avoid the problems in such situations and in all situations associated with the use of surrogate motherhood you should be careful in signing an agreement with the surrogate mother. However, not only financial or medical issues are important. Preliminary psychological evaluation of a potential surrogate mother in terms of her psychological readiness to bear a child for third parties and then give the baby to them is of high importance.

In Ukraine the requirements for surrogate mothers are not very broad. The surrogate mother can be any woman aged from 18 to 35 years without somatic and psychological diseases, who has her own healthy child. Based on practice, it can be recommended to choose a surrogate mother among married individuals with children; her husband should be involved in the contract. Such approach helps to avoid most of contentious issues in the future.

Don’t forget, that people, who wish to become parents via surrogacy, often become victims of manipulation and fraud. For example, the surrogate mother can blackmail biological parents with refusal to give a child, abortion, to enter into a conspiracy with a clinic for simulating pregnancy, etc. The precautions to prevent from fraud or manipulation by surrogate mothers or clinics may be the using of bank instruments when money reward for clinic or surrogate mother is in a special deposit account in a bank till the moment of getting a child, and so on.

In addition, persons who wish to become parents via surrogacy in Ukraine signing a contract with a specialized clinic must understand that in most cases the surrogate mother will be paid only 10-20% of the total sum of 20-40 thousand USA dollars that are paid for a birth of a child. Therefore, potential parents should not ignore this point because it can impact on the behavior of a surrogate mother who realizes that the hospital uses her and gets a lot more money.

Thus, interested persons should approach the legal aspects of surrogate mother services as careful as medical aspects. Even in the case of applying to an authoritative clinic with legal services the counseling and legal support of surrogacy procedures by an independent lawyer can help to prevent unwanted consequences in the future and make less risk of disputes.

Author: Kateryna Bovan, Senior lawyer

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Kydalov & Partners
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Publication Date: 30.10.2014
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