Surrogacy in Ukraine. Legal aspect

Ukraine is one of a very few surrogacy friendly countries in Europe. The legal advantages of conducting surrogacy here are the following:

• commercial or paid surrogacy agreements are allowed without limitation of remuneration to be received by a gestational mother;
• no decision of a Special Committee is required;
• no court order is required;
• no further adoption procedure is required;
• birth certificate is issued to the name of the intended parents immediately after the child’s birth;
• gestational mother has no legal right to be deemed as a legal mother of a child she delivered while participating in the surrogacy program. Only intended parents are considered to be legal parents of the child born by the gestational mother. Comparatively cheap value of Gestational Surrogacy Agreement.

The following Legal Acts regulate the surrogacy in Ukraine:

1.  Family Code of Ukraine;
2. ‘On Vital Statistics Registration’, Law of Ukraine of 07/01/2010 No. 2398/VI;
3. ‘Rules for Vital Statistic Registration in Ukraine’ of 10/18/2000 No. 52/5;
4. ‘Instruction on Procedures for Assisted Reproductive Technologies’, Order of the Ministry of Health No. 771 of 12/23/2008;
5. ‘On Citizenship of Ukraine’, Law of Ukraine of No. 2235-III of 01/18/2001;
6. ‘Procedure of Entry to Ukraine for Foreigners and Stateless Persons, their Exit from Ukraine and Transit through its Territory’, Decree of the Cabinet of Ministers of Ukraine No. 1074 of 12/29/1995.

The Family Code of Ukraine, which came into force on 01/01/2004, has legalized surrogacy in Ukraine making the Ukrainian law one of the most favorable in the World in respect of surrogacy and fully supporting the individual’s reproductive rights. It stipulates the following:

Article 123. Maternal and Paternal Affiliation of the Child Born As a Result of Assisted Reproductive Technologies

1. If the wife delivers the child conceived using Assisted Reproductive Technology, upon written consent of her husband, the latter shall be registered as the father of the child born by his wife, (remark: is applicable also to Traditional Surrogacy)

2. If the embryo conceived by the spouses using Assisted Reproductive Technology is transferred into the body of another woman, the spouses shall be the parents of the child. (remark: Gestational Surrogacy)
3. The spouses shall be considered as the parents of the child, born by the wife, when an embryo conceived by her husband and another woman was transferred into the wife’s body.

In surrogacy terms, Clause 1 of Article 123 may apply to Traditional Surrogacy: if there is a couple where the wife is impregnated with the sperm of the commissioning father (usually through artificial insemination), she is both the genetic and gestational mother of the child. This means that, of course, she may waive her maternal right in favor of commissioning father, but, legally speaking, the letter of law always takes her side and protects her maternal right. In case she officially waives her maternal right before insemination, she as the genetic mother may always change her mind – during the pregnancy or upon delivery and the right of the commissioning father will not be protected. Again, legally speaking, in usual circumstances no court order will be issued in Ukraine to protect the commissioning father in case the surrogate wishes to keep the child with her. For this reason, the traditional surrogacy is not involved in the article.

Clause 2 of Article 123 expressly stipulates gestational surrogacy relations. Thus, we may conclude that Gestational Surrogacy is absolutely legal in Ukraine. According to said provision the child is legally considered to be the child of the intended parents from the very moment of conception. The surrogate can’t keep the child after the birth under any reason and may get remuneration for her service in the any amount agreed as well as compensation for actual expenses.