Nowadays, the world medical technologies are equally successfully implemented when it comes to two completely different types of surrogate motherhood forms.
Currently, there are a traditional surrogacy and a gestational surrogacy. The main difference between them is that in case of traditional surrogacy a woman carries her own biological child that was conceived with the sperm of a donor as a result of insemination and eventually will become a biological mother of a toddler. Her parental rights shall not be a subject to alienation unless she voluntarily terminates them.
Traditional surrogacy is mainly used by single males, same-sex couples, or by couples in which a woman by medical criteria is not capable to bear a fetus and give birth to a child, and not even able to produce healthy egg cells that eventually will develop into a fertilized ovum.
Advantages of Traditional Surrogacy
The advantages of this type of surrogacy are obvious and easily inferred. It implies that not only legally heterosexual married couples can use this type of surrogacy program, but other people too. In addition, there is no need to spend money for quite expensive in vitro fertilization, and finally the percentage of successful insemination is much higher than the percentage of effective embryo transplantation during IVF procedures. However, at this point all good things end, as this type of surrogate motherhood is outside of legal framework of Ukraine and carries additional risks to potential customers for it is not clearly regulated by any legal provisions of Ukrainian legislation.
What could happen is that after a birth of a child a traditional surrogate can refuse to give up a child and there will be no way to coerce or force her to do so, as by law she will be a biological mother of a child. Though traditional surrogacy is not expressly banned by the Law of Ukraine, it is used very rarely. Unless, a surrogate is your close friend or even a relative and you have managed to settle all post-birth issues with respect to finalization your parental rights and responsibilities prior to a child birth.
Gestational surrogacy on the other hand is the type of surrogate motherhood program that is sufficiently and clearly regulated by the Ukrainian legislation, however it has a limited scope of application. In accordance with the provisions of Part 2 of Article 123 of the Family Code of Ukraine “in the event when a human embryo conceived by spouses as a result of using assisted reproductive technologies is transferred to the body of another woman, the spouses are considered to be legal parents of the child”.
Thus, the legislation immediately limits the range of persons, who may apply for a gestational surrogacy program, namely only legally married heterosexual couples are eligible to use the services of a gestational surrogate.
The Order of the Ministry of Health Care of Ukraine dated September 9th, 2013 No. 787 “On Approval of the Procedure for the Use of Assisted Reproductive Technologies in Ukraine” has stated that the presence of established medical indications is a required prerequisite for the use of gestational surrogate maternity methods. In case of gestational surrogate motherhood, a female who gives birth to a child is not his/her biological (genetic) mother and, therefore this fact provides for additional guarantees that intended parents will not experience any difficulties in finalizing their parental rights.
According to Part 2 of Article 139 of the Family Code of Ukraine, the surrogate mother to whom the “alien” embryo was transferred cannot demand the recognition of her motherhood, as the genetic material was provided for by the commissioning parents.
The current legislation establishes the criteria that a potential surrogate mother must meet. These criteria, from one side, narrow the number of persons who can become potential surrogate mothers, and on the other hand, give some guarantees of the necessary compliance of a surrogate mother with medical indicators. One of the main requirements of the Law of Ukraine is that a future surrogate must have at least one healthy child born by her naturally.
Once a child or children are born to a surrogate mother, he/she/they are registered pursuant to the Law of Ukraine “On State Registration of Acts of Civil Status”. The application is submitted to the Office of the City Registrar along with a document confirming the fact of the child’s birth to a surrogate and her consent to have the intended parents recorded as legal parents of the born child, the authenticity of her signature must be notarized, as well as her husband’s, in case she is married, and a certificate of the genetic relationship of the intended parents with a newborn child.
What remains unresolved is the issue whether people who are not legally married and single individuals are also allowed to use the services of the gestational surrogates. Although the Convention on the Protection of Rights and Fundamental Freedoms does not contain a provision that would directly provide for the right to paternity (motherhood), many ECtHR decisions associated with Article 8 and Article 14 deal with related disputes in connection with which it can be concluded that the human right to become a mother (father) is an inalienable human right and, therefore, interpretation by local courts of the provisions of Articles 49, 50 of the Family Code of Ukraine is too narrow.
It should be noted that the provision of surrogate mother services is carried out on the basis of an agreement between the intended parents and the surrogate mother. Professionally drafted surrogacy agreement and strict compliance with its provisions are the keystones to have a healthy and joyful child without any legal complications or detrimental consequences.
Contact our experienced lawyers at IVF Group Surrogacy Services, ivf-international.com who will be able to help to avoid legal loopholes on your way towards successful implementation and completion of a gestational surrogacy program.