CC BY
8
https://doi.org/10.29013/EJLPS-20-2-38-41
Zeniv Mariia,
PhD student at the Jagiellonian University in Cracow, the Faculty of Law and Administration E-mail: mariia.zeniv@gmail.com
CRITICAL REFLECTIONS ON THE REGULATION OF THE SURROGATE MOTHERHOOD AGREEMENT IN UKRAINIAN LAW
Abstract. The article is devoted to the problems concerning conclusion of the surrogate motherhood agreement in the light of Ukrainian law. Analysis of legal rules applicable thereto is provided. Attention is paid to inconsistency of legal regulation in this area as well as the influence of the worldwide pandemic situation related to Covid-19. Some critical remarks are made with respect to the nature of the surrogacy agreement.
Keywords: surrogate motherhood, surrogacy agreement, assisted reproductive technologies, surrogate mother, intended parents.
The actuality of the chosen topic is determined by the nature of the surrogacy agreement itself as well as by the ethical dilemmas and inconsistent legal regulation of procedures of surrogate motherhood in Ukraine. The regulation of the issues of surrogate motherhood in Ukraine is provided by a number of legal acts, among which: Family Code of Ukraine, Civil Code of Ukraine, Law on Fundamentals of the Legislation of Ukraine on Health Care of 19 November 1992, and the legal acts approved by the Ministry of Justice of Ukraine and ministry of Health of Ukraine. With regard to this, it is stated in the doctrine that the existing gaps in the regulation call for a separate legal act to be adopted or the detailed provisions be included in the Family Code of Ukraine to provide for a comprehensive legal framework of surrogate motherhood issues [4, 27, 31; 5, 425, 428-429, 433; 7, 39-40; 9, 103; 10, 44-55; 11, 133; 12; 13, 66; 14, 59, 63]. In this regard, it is rightly asserted by I. Senyuta that the detailed and coherent legislation regulating the activities of the assisted reproductive technology clinics and other intermediaries is needed, together with a state control over them [12].
Introduction of the surrogate motherhood procedures in Ukraine was explained by a growing ten-
dency of low birth rates as well as increase in reproductive health problems, as stated in the Concept of the state program regarding reproductive health of the nation for the period of2006-2015, adopted by the government on April 27, 2006 [2]. According to the Procedure for the Use of Assisted Reproductive Technologies in Ukraine, approved by the Oder of 9 September 2013 of the Ministry of Health of Ukraine [1], the surrogate motherhood is defined as one of the methods of infertility treatment by use of assisted reproductive technologies.
In Ukraine, both altruistic (free of charge) and commercial forms of surrogate motherhood are permitted, although they are not directly prescribed by the law. The regulation of surrogate motherhood is dispersed among a number of legal acts, none of which provides for specific regulation of the issues related to conclusion or termination of the surrogacy agreement. However, this regulation derives from general civil law principles and rules of conclusion of contracts, such as prohibition of any arbitrary intervention in a person's private life, freedom of the contract, freedom of business activities, which are set forth in Article 3 of Ukrainian Civil Code. In this regard, Ukrainian doctrine underlines that the persons'
rights to maternity and paternity undoubtedly belong to personal non-property rights entitling them to dispose of them freely and without interference. Additionally, Article 281 of Ukraine's Civil Code stipulates that women and men with full legal capacity have the right to undergo treatment by the use of assisted reproductive technologies carried out in accordance with the procedure and conditions set out by the law and based on medical need [9, 103; 12].
It is important to note that conclusion of the surrogate motherhood agreement is a required prerequisite for carrying out surrogacy in Ukraine aiming at providing for precise regulation of rights and obligations of the parties. Because the Ukrainian law does not either stipulate such kind of a contract as the surrogacy contract or contain specific regulation thereof, the conclusion of the surrogacy contract shall meet the requirements for civil law contracts. In particular, the rules concerning conclusion, performance and termination of the contracts for provision of services are applied [4, 28, 30; 5, 438, 447; 9, 103-105; 11; 13, 66-67]. According to the opinion expressed in the Ukrainian doctrine by I. Veres and A. Herts, taking into account the similar purpose of a surrogate motherhood's institution and institution of adoption, the specific requirements imposed on the adopters in accordance with the provisions ofArticles 211 and 212 of the Ukraine's Family Code should be also applied to the intended parents [4, 29-30; 5, 431-433].
It should be underlined that Ukrainian legislation only allows for a gestational surrogate motherhood when at least one of the intended parents has a genetic connection with the child and a surrogate mother is not genetically related with it [15, 233240]. As regards the parties of the surrogate motherhood agreement, it is to be concluded between two parties: the commissioning party who are the child's prospective parents (the intended parents) being in a heterosexual marriage between themselves, on the one side, and a surrogate mother, on the other side. In this regard, a question arises as to whether a single person is eligible to undergo the procedure of
surrogate motherhood in the light of Ukrainian law. The Family Code answers this question negatively, because the Article 123 of Ukraine's Family Code requires the commissioning party to be a married heterosexual couple. However, in this respect there is lack of compatibility of Ukrainian legislation. The surrogate motherhood, as stated above, being one of the kinds of assisted reproductive technologies is regulated by both general provisions related to all kinds of assisted reproductive technologies and specific provisions only concerning the surrogate motherhood. Sharing the opinion expressed in the doctrine, it should be underlined that the Ukrainian law does not prohibits single persons from having been treated by use of assisted reproductive technologies while in the Ukraine's Family Code it indicates only the spouses as being the intended parents of the child born through surrogate motherhood [5, 428, 446].
Conclusion of the surrogacy agreement serves as a legal basis for the two additional agreements to be concluded with regard to the provision of medical services, i.e. the agreement between the medical institution and the intended parents and the agreement between the medical institution and the surrogate mother. Notwithstanding the lack of specific legal provisions, it is recommended to have a surrogacy agreement concluded in a written notarially certified form. As rightly stressed in the doctrine, among the documents necessary for carrying out the procedure of surrogate motherhood, the aforementioned Procedure for the Use of Assisted Reproductive Technologies in Ukraine provides for a notarially certified copy of a written agreement between a surrogate mother and the intended parents to be submitted [5, 431, 435, 438, 447; 9, 104-105].
As regards the problem of potential refusal to transfer the child by the surrogate mother to the intended parents, the Ukrainian law clearly defines such a refusal as being unlawful. In particular, its unlawfulness directly derives from the provisions of the Family Code of Ukraine. According to its Article 123 paragraph 2, the legal parents of the a child born through
surrogate motherhood are the intended parents who are also its genetic parents, or at least is one of them.
In terms of its appropriateness to account for specific nature of child's related issues, the critical attention should be given to the fact that application of the general provisions of contracts for services implies that a surrogacy agreement, as similarly to other contracts for services, has a payable nature, if otherwise not specified therein. This entails that considering the payable nature of the surrogacy contract, it is suggested in the doctrine that a material part of the surrogacy agreement indicates two types of costs to be covered by the intended parents, i.e. all the costs associated with the procedure of surrogate motherhood (all the medical costs of procedure, as well as expenses relating to the child's delivery and nutrition of the surrogate mother) and the remuneration for pregnancy, carrying the child and its delivery [4, 30; 5, 433-434; 9, 106; 10].
Recently, on 28th of April 2020 the Commissioner of the Verkhovna Rada of Ukraine for Human Rights (Ombudsman) made a statement regarding the surrogate motherhood. It is rightly stated there that the worldwide pandemic situation related to Covid-19 demonstrated the imperfection of legal regulation of surrogate motherhood under Ukrainian law. Additionally, it is stressed there that the cases of illegal transportation of children born out
legislation changes in this area by providing only the Ukrainians be eligible to use the procedures of surrogate motherhood in Ukraine.
To conclude, it is to be stressed that despite the declared goal of fighting infertility and helping the spouses to have their own children, the procedures of surrogate motherhood in Ukraine resemble running a business with so-called assumption of the payable nature of surrogacy contracts emanating from the rules applicable to all the contracts for services, if otherwise not specified. Moreover, relatively low costs related to surrogacy procedures and proximity within Europe made Ukraine the most popular destination for surrogacy tourism in Europe, as revealed by studies from France [3], Germany [16, 999-1000], the Baltic States (Estonia, Latvia and Lithuania) [8], Poland [6], Spain [16, 1000-1001]. In addition, regulation of surrogate motherhood in Ukraine is not thorough, and it lacks consistency. Overall, existence of the institution of surrogate motherhood does not provide the children with protection of their right to identity by getting access to information of the circumstances of their birth and origin. Also, unresolved remain other questions associated with this institution, among which is the enforceability of surrogate motherhood agreements. Such lack of consistency of legal rules in this area results in so-called judicial legislative activism basing on the concept of the child's best interests.
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