The legal aspects of the use of infertility treatment programs using assisted reproductive technologies (ART) in Ukraine is regulated with:
- The Family Code of Ukraine – Article 123, paragraphs 1-3 — determining the origin of a child born as a result of the use of ART:
- When a human embryo conceived by spouses (male and female) as a result of using assisted reproductive technologies is transferred to the body of another woman, the parents of the child are the spouses.
- Spouses are recognized as parents of a child born by a wife after transferring a human embryo into her body, conceived by her husband and another woman as a result of assisted reproductive technologies.
From a legal point of view, the advantages of passing the surrogate motherhood program in Ukraine are, in particular, the following:
- Surrogacy agreements concluded on a commercial basis are allowed in Ukraine without any restrictions on the amount of surrogate mother remuneration;
- The permission of a special body is not required (as is necessary in adoption cases);
- There is no need for judicial consideration of the case;
- It does not provide for the subsequent procedure for the adoption of a newborn child;
- The names of the genetic parents from the very beginning are indicated in the birth certificate of the child;
- According to the law, the Surrogate Mother does not acquire any parental rights in relation to the child born as a result of the surrogate motherhood program. The legal parents of a child born to by a surrogate mother are considered to be exclusively genetic parents.
Surrogate motherhood is regulated in Ukraine by the following legal acts:
- Family Code (hereinafter — FC) of Ukraine;
- The Law of Ukraine “On State Registration of Civil Status Acts” No. 2398/VI of July 1, 2010;
- “Rules of State Registration of Civil Status Acts” No. 52/5 of October 18, 2000;
- “Instruction on the procedure for the use of assisted reproductive technologies”, approved by the order of the Ministry of Health of Ukraine No. 771 of November 22, 2008;
- The Law of Ukraine “On the Citizenship of Ukraine” No. 2235-III of January 18, 2001;
- “Rules for the Entry of the Foreigners and Stateless Persons into Ukraine, their Departure from Ukraine and Transit Through its Territory”, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 1074 of December 29, 1995.
The Family Code of Ukraine, which entered into force on January 1, 2004, legalized surrogate motherhood, as a result of which Ukrainian legislation became one of the most favorable in the world for passing this type of program.
Its provisions state that:
- In the case of the birth of the wife of a child conceived as a result of the use of assisted reproductive technologies, implemented with the written consent of her husband, he is recorded as the father of the child. (Note: the article also applies in cases of traditional surrogacy)
- When a human embryo conceived by spouses (male and female) as a result of using assisted reproductive technologies is transferred to the body of another woman, the parents of the child are the spouses. (Note: the article applies in cases of gestational surrogacy)
- The spouses are recognized as parents of a child born by a wife after transferring a human embryo into her body, conceived by her husband and another woman as a result of using assisted reproductive technologies.
Thus, Part 2 of Art. 123 of the FC of Ukraine clearly regulates the legal relations of surrogate motherhood. According to this provision, parental rights belong to a married couple that has granted consent to the use of assisted reproductive technologies. The surrogate mother has no right to keep the child after his birth.
Another important issue that concerns the rights of the participants in surrogate motherhood programs is challenging motherhood. In accordance with paragraph 2 of Article 39 of the FC of Ukraine, a woman who considers herself the mother of a child has the right to sue a woman, registered as the mother of a child, to recognize her motherhood.
At the same time, challenging motherhood is not allowed in the cases provided for in Parts 2 and 3 of Article 123 of the FC of Ukraine, that is, in the event of having a child conceived by spouses using assisted reproductive technologies, including the method of surrogate motherhood. This also applies to genital gamete donors who are legally unable to acquire parental rights to a child who was born in an IVF program using donor cells.