Legal regulation of surrogacy in Ukraine
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The proper execution of all legal requirements is fundamental for the success of a surrogacy program in Ukraine.
Surrogacy is a method of infertility treatment using assisted reproductive technologies and a surrogate mother. It is legal in Ukraine and regulated by Ukrainian law:
- The Civil Code of Ukraine of 16.01.2003 year № 435-IV;
- The Family Code of Ukraine of 10.01. 2002 year № 2947-III;
- The Law of Ukraine “On the Basic Laws of Ukraine on Health Care” of 19.11.1992 year № 2801-XII;
- The Order of the Ministry of Health of Ukraine «On approval of the Procedure of the use of assisted reproductive technologies in Ukraine» of 09.09.2013 year №787;
- The Law of Ukraine «On State Registration of Civil Status Acts» of 01.07.2010 year № 2398-VI;
- The Order of the Ministry of Justice of Ukraine «On Approval of Rules of State Registration of Civil Status Acts in Ukraine» of 18.10.2000 year № 52/5.
According to the legislation, surrogacy can be carried out in a healthcare institution in Ukraine. Written consent by the spouses (only a legally married man and woman may participate) is required, as are medical indications that the program is necessary. Medical indications for surrogacy programs as well as programs using oocytes or sperm donation are established by the Ministry of Health of Ukraine.
It is mandatory that at least one of the spouses has a genetic relationship with the child.
The surrogate mother can not have a genetic relation to the child.
The selection of a surrogate mother is made in accordance with Ukrainian legislation. It dictates an absence of medical contraindications and that the surrogate mother has her own healthy child.
In order for non-citizens to participate in surrogacy programs in Ukraine, their documents must be legalized. Parent’s passports should be translated into the Ukrainian language and then notarized. The parent’s marriage certificate must be a state-issued, legal document. It will need to be translated into Ukrainian and notarized. The improper legalization of documents will prevent the child’s birth registration in Ukraine.
Oocyte donors, sperm donors, and the surrogate mother will not be recognized as the parent of a child born using surrogacy and/or oocytes or sperm donation. The spouses are the parents of the newborn. After the child’s birth has been registered with the State Registry Office, the spouses are recorded as the parents on the birth certificate. Surrogacy is not mentioned. However, information on the surrogate mother is kept in the data base of the Registry Office. Once the parents receive their child’s birth certificate, they have full parental rights.
A return to their country of residence with their newborn is the final step for non-citizens of the Ukraine. The process depends on their country’s legislation and the position of their Embassy in Ukraine. There are several requirements to be met in order to depart with a newborn baby: a consultation and official response from the Embassy, collaboration between a lawyer and an Embassy representative, and the legalization of the child’s birth certificate in Ukraine according to the legislation of the parent’s country of residence. The Embassy may also require additional legal documents. After visiting the Embassy and submitting their documents, parents can freely leave Ukraine with their baby.
Contractual Relationship Between Parents and Surrogate Mother
A mandatory condition of a surrogacy treatment program is the conclusion of the notarized surrogacy agreement. It influences the pregnancy, and the child’s birth registration. An agreement on surrogacy is made according to Ukrainian legislation and the wishes of the involved parties.
A surrogacy agreement is made using legal marriage documents. Parent’s passports must be translated into Ukrainian and then notarized. The marriage certificate must be an original copy with the stamp of legalization. It should also be translated into Ukrainian and notarized.
For international surrogacy, a surrogacy agreement is usually done in both Ukrainian and English.
The agreement defines surrogacy terms such as the child’s transfer to the parents and the surrogate mother’s compensation. Spouses must reimburse the surrogate mother for costs related to the agreement’s provisions such as healthy nutrition, medical examinations, medication, courses for childbirth preparation, maternity clothing, lost earnings, and more. The agreement will also define the amount of compensation to the surrogate mother separate from expenses. The amount of compensation may vary depending on the success of the surrogacy program (for instance, premature birth), the birth of one child or twins, natural vs. caesarean birth, etc.
The surrogacy agreement will detail the rights and obligations of spouses and the surrogate mother. The main obligations of a surrogate mother are carrying the child, giving birth, and transferring the child to the parents. The agreement may also mandate that the surrogate mother follows all doctor recommendations during pregnancy and labor.
After the agreement has been signed, it is possible to make amendments. The conditions of the agreement are confidential and may be disclosed only to the notary, health care staff, and the spouse’s lawyers.
The Registration of a Child’s Birth in Ukraine and Traveling to the Country of Residence (Country of Origin)
State registration of a child’s birth in Ukraine is one of the most important elements of the surrogacy program. It generally takes foreign spouses up to 5 working days to receive the Ukrainian certificate of birth.
When a child is born in a medical facility, the act of birth is issued by the Maternity Hospital and will have the surrogate mother’s name on it. (Please note, this is an internal medical document which is kept confidential at the Medical Office and at the Registry Office for 75 years. It can’t be be disclosed. Information about the surrogacy program is recorded only to the act of registration of birth.)
With the proper notarized documents (i.e. surrogacy agreement and the act of birth), the parents should apply to the the registrar compliance officer for an actual birth certificate.
During the registration of the child’s birth, parents should determine the child’s name.
The birth registration procedure takes 30 to 40 minutes. At the end of the procedure, the parents receive their child’s birth certificate listing them as the parents.
Ukraine Citizenship for the child will not be granted as both parents are non-citizens of the Ukraine.
After receiving the child’s birth certificate, the spouses are officially recognized as the child’s parents, have full parental rights, and are able to bring their baby back to their country of residence.
The spouses return to their country of residence with their newborn is the final step and depends on the legislation of their country and on the position of their Embassy in Ukraine.
Departure requires a consultation and an official response from the Embassy, collaboration between their lawyer and an Embassy representative, and the execution of several legal actions. These include the legalization of the child’s birth certificate in Ukraine and the successful completion of other legal documents required by the Embassy. This can take anywhere from 5 days to a month, and sometimes longer, depending on the number of documents required and the process of the Embassy of specific country.
Confirmation of a genetic relationship between the child and the parents is the most important component. The child’s nationality is assigned based on a confirmed genetic relationship with the mother or father. The Embassy may request a DNA test. Properly following all procedures is essential to successful travel with a child.
In the simplest cases, couples may be required only to legalize the child’s birth certificate in Ukraine and have it translated into the language of their country of citizenship. In the most difficult cases, couples may need to obtain permits from their country of citizenship, obtain documentation from the medical center, involve lawyers, provide information from the surrogate mother, undergo DNA tests, and more. In some cases, parents may be issued a temporary passport for the child.
After completion of this phase, parents are free to leave Ukraine and go to their country of origin with their newborn baby.
Occasionally, due to laws in the parent’s country of origin, legal requirements may not end there. For example, an Embassy may only recognize parental rights for men. In this case, the wife has to adopt the child.
The information provided in this document has been prepared by the legal team of Adonis Fertility International LLC and Adonis Medical Group. This is a copyrighted document. Any transmission or use is expressly prohibited without prior authorization from Adonis Fertility International LLC.