Surrogate motherhood center. Legal support

• Recommendations of legal agencies for rendering legal aid under the surrogacy motherhood program.
• Qualified help in preparation of necessary documents, contracts with medical institutions and surrogate mother.
• Making acquainted with laws in force (rights and obligations of genetic parents).
• Help in registration of parental rights in the Civil Registry Office.

1. The Parties shall be entitled to conclude a contract that is not provided for by the civil legislation acts but complies with the general principles of the civil legislation.
2. The Parties shall be entitled to agree upon their relationship, which is not provided for by the civil legislation acts, in the contract foreseen by the civil legislation acts.
3. The Parties may depart in their contract from the provisions of the civil legislation acts and establish their relationship at their own discretion.

The Parties to the Contract may not depart from the provisions of the civil legislation acts, if such requirement is expressly stated therein, as well as in those cases where the binding force of the provisions of the civil legislation acts for the Parties proceeds from their contents or basic relationship between the Parties.

Article 628 of the Civil Code of Ukraine, which stipulates the contents of the contract
Article 629 of the Civil Code of Ukraine, which stipulates the binding power of the contract
Article 639 of the Civil Code of Ukraine, which stipulates the form of the contract

In addition, subparagraph 2.2 of paragraph 2 of Order of the Ministry of Justice of Ukraine No. 140/5, dated May 18, 2003 establishes the procedure of documentation of parental rights of spouses on the grounds of the notarized consent for such action to be taken, which is to be given by the woman by whom the child was born.

The relationship between the surrogate mother, the customer and the medical institution shall be regulated by the contract, the subject of which involves the use of the in vitro fertilization procedure.

In this case, the Parties shall be guided by the legal regulations of the active legislation of Ukraine, which are set forth in p. A) above, as well as by the following documents:

1. Article 4 of Law of Ukraine "Fundamentals of Health Legislation of Ukraine", according to which one of the basic health protection principles are as follows:

• diversified nature of health economy and financing thereof, combination of state guarantees with de-monopolization, encouragement of entrepreneurship and competition;
• decentralization of the state control, development of self-government of organizations and independence of personnel employed in the sphere of health protection on the legal and contractual bases.

3. Article 38 of Law of Ukraine "Fundamentals of Health Legislation of Ukraine" defines the freedom of choice of a physician and medical institution by the patient.

4. Article 79 of Law of Ukraine "Fundamentals of Health Legislation of Ukraine", according to which health organizations, citizens and their associations shall be entitled, in accordance with the active legislation, to enter into agreements (contracts) independently with foreign legal entities and natural persons for any forms of cooperation, participate in activities carried out by appropriate international organizations, carry on foreign economic business.

Order No. 24, dated February 04, 1997 of the Ministry of Health of Ukraine defines the terms and procedure of artificial impregnation services.

The above document contains the following provisions:

the artificial impregnation procedure shall be carried out in qualified medical institutions (p. 1.2);

the procedure is carried out on the grounds of the relevant application to be made by a woman having legal capacity, with whom such procedure shall be carried out, following documentation of the application made by the spouses and their medical examination (p. 1.3);

the age of the woman to be artificially impregnated shall not exceed 40 years.

In this case, neither article 48 of Law of Ukraine "Fundamentals of Health Legislation of Ukraine", nor provisions of Order No. 24 dated February 04, 1997 of the Ministry of Health of Ukraine contain references to the condition according to which the woman to be artificially impregnated on the grounds of her application must be one of the spouses who gave their consent with regard to this procedure and undertook obligations of parents in respect of a child.

Therefore, proceeding from the norms of the active legislation of Ukraine, it is quite evident that there exist no restrictions concerned with provision of in vitro fertilization services to medical institutions with the exception of personal medical contraindications with regard to this procedure.

The Convention on Protection of Human Rights and Dignity with Regard to Application of Biology and Medicine: the Convention on Human Rights and Biomedicine of April 4, 1997 provides for the following:

The interests and well-being of an individual shall prevail over the exclusive interests of the whole society or science (article 2) Considering medical needs and available resources, the parties shall take appropriate action for the purpose of provision of equal access to the proper-quality medical assistance within the bounds of their jurisdiction (article 3).

The provision regarding in vitro fertilization and transplantation of embryos, which was adopted at the 39th World Medical Assembly (WMA) (Madrid, Spain, October, 1987) says as follows:

In vitro fertilization and embryo transplantation represent the medical method used in many parts of the world for sterility treatment purposes. This method can serve useful means both for separate patients and the whole society for treatment of infertility and, besides, can contribute to disappearance of genetic diseases and stimulation of fundamental research in the field of human reproduction and contraception.

From the ethical and scientific viewpoints the medical assistance rendered in the sphere of human reproduction is justified in all cases of sterility, which is not subject to any classic drug or surgical therapy.

In all such cases medical practitioners can take action only with the complete and well-informed consent of donors and recipients. First and foremost, the physicians must act in the interests of a child who will be born as a result of the above-mentioned procedure.

With regard to the artificial impregnation procedure WMA welcomes and supports the method of in vitro fertilization. Further, the mention is made in the provision of potential ethical and legal conflicts concerned with the use of donor ovum, semen and embryos. However, basically, the use of donor matter in the process of in vitro fertilization is not prohibited and, instead, is supported by the provision. In this case, the necessity to observe the norms of the national law in the course of the procedure is taken into account.

Besides, the provision does not deny the potential use of the so called substituted parenthood, according to which a woman agrees to be artificially impregnated for the purpose of conception of a child that would be subsequently adopted by a husband or his wife.

WMA disapproves procedures connected with in vitro fertilization on the pay basis.

Therefore, the relationship between customers and surrogate mothers are not basically disapproved by WMA. And if a customer bears expenses connected with the maintenance of a surrogate mother during the pregnancy period, thus providing the most favorable conditions for fetus development, any such interpretation of expenses conforms in full to the fundamental principles of the provision.