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The Availability of Assisted Reproductive Technologies for Single Persons. Legal Aspects

The development of modern medicine and science makes many things, which previously seemed fantastic, available. Especially noticeable progress is in the field of assisted reproductive technologies in general and surrogate motherhood in particular. Ukraine is one of a few countries where surrogacy is permitted by law, and Article 123 of the Family Code sets the origin of a child and clearly defines married couple, which gave biomaterials (sperm and eggs) and retained the services of a surrogate gestation, to be parents of a child born by a surrogate mother. The law also permits the use of donated oocytes by the spouses, in any case it will be considered that an embryo comes from spouses. The spouses who have consented to use assisted reproductive technology have full parental rights and responsibilities in relation to children who are born as a result of these techniques.

However, if you consider this question wide enough, you’ll notice that even the liberal Ukrainian law allows some discrimination because it is said exclusively about the couples who are in a registered marriage. Single people, a persons staying in a civil marriage (without official registration of the state bodies), or same-sex marriage (in countries where such marriages are permitted by law) are not considered by Ukrainian law as those who can use surrogacy. What can these persons do in this situation?

It should be understood that the right for procreation is an inalienable and natural right. The right for a family, its creation, the right not to have a family if this the person does not want also belongs to the category of natural laws. Therefore, the restriction of individuals who can use assisted reproductive technologies only to a circle of couples looks unconvincing. Although supporters of the restrictions bring their arguments and they boil down to the fact that the desire of single men, for example, to use the method of surrogate motherhood is primarily justified with their desire to satisfy their reproductive rights, to solve some social problems, not to overcome infertility; such arguments are clear signs of gender discrimination. No less absurd is the exclusion from the list of persons who can use surrogacy of single women who have medical conditions that exclude the self-conception and gestation pregnancy, because female infertility is a factor that eliminates most of marriages, as not many men want to marry a barren woman. After all, if to consider legislator`s logic, it is possible that the next logical step is to prohibit to single fathers, widowers, single women to raise their children. At the same time, paradoxically, the law will allow to take advantage of surrogacy programs for couples in which the woman is out of childbearing age, but a single woman out of childbearing age with medical conditions has no chance for procreation.

What should single persons, who would like to take advantage of programs of surrogate motherhood to become parents, do in this situation? Firstly, do not despair, and, secondly, to be ready for the courts. Slowly and gradually the judicial practice in Ukraine, as well as the practice of the European Court of Human Rights, expand the use of surrogacy technology even in those countries where it is prohibited. Thus, the European Court of Human Rights in the judgment of 01.27.2015 in the case of “Paradiso and Campanelli against Italy” (application №25358 / 12) and the judgment of 06.24.2014 in Case of “Menesson and others against France “(application №65192 / 11) admitted the unlawful actions of the authorities to refuse recognition of individual parents of children in a situation, even though their parents’ relationship has been legally established in another country. In these cases, the pair resorted to fertilization in vitro, for which the applicant’s sperm and the donor egg were used, then the embryo was placed in the uterus of a surrogate mother in another country, allowing surrogacy. Exploring the reasoning of the court clearly shows that in these cases the Court first of all protected the interests of children and the right of individuals to family life. The court did not allow the violation of the Convention on Human Rights (Rome, 1950), namely Article 8 (right to respect for private and family life). Also, examining the precedents of this Court, it can be assumed that children’s right to have a single father or mother, who uses the method of surrogate motherhood, also will not be violated, as it would harm the interests of a child, discriminate him/her by birth and select in voluntarist way the child’s right to have family connections.

Summing up, we can say that single persons who have decided to have a baby using assisted reproductive technologies and, in particular, surrogate motherhood will face a solid wall of rejections and misunderstandings. Legal aspects of the case may involve litigation and disputes with the authorities, and therefore lonely people always have to consider the right and their desire to continue their family and potential difficulties with the recognition of parental rights for a child born with the use of reproductive technologies.

Author: Kydalov Igor

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Kydalov & Partners
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Publication Date: 06.03.2016
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