The advantage of the Ukrainian legislation in the field of surrogacy:
1. You (the Genetic Parents) are fully protected from the risk that the surrogate mother takes the child herself, because it is a criminal offense. The parents of the child are only you (according to Art. 123 paragraph 2 of the Family Code of Ukraine).
2. The multilevel system of protection of surrogate mother’s responsibilities and the genetic parents' rights.
3. When registering a birth certificate for your child, in the 'mother and father’ graph exclusively you will be shown.
THE LAW OF UKRAINE
The relationship between the Surrogate Mother and the Client are governed by the Contract concluded in accordance with:
А) Art. 1 of the Civil Code of Ukraine, which stipulates that property and related personal property and non-property relations(civil relations), based on the legal equality, free will, and property independence of their participants, are regulated by the civil legislation.
Art. 6 of the Civil Code of Ukraine, which states that:
1. The Parties are entitled to conclude a contract, which is not stipulated by the civil legislation acts, but satisfy the general principles of the civil law.
2. The Parties are entitled to regulate in the contract, which is stipulated by the civil legislation acts, their relations that are not regulated by these acts.
3. The Parties can derogate from the provisions of the civil legislation acts and regulate their relations in the contract at their own discretion.
Under the contract,the Parties shell not derogate from the provisions of the civil legislation acts, if these acts clearly indicate on this and if the mandatory of the provisions of the civil legislation acts for the Parties follows from their content or the substance of the relationship between the Parties.
4. Provisions of the first, second and third parts of this Article shall apply to unilateral authority.
Art. 627 of the Civil Code of Ukraine, which defines a freedom of contract.
Thus, the conclusion of the contract, according to which one Party undertakes to give the other Party services for childbearing conceived by in vitro fertilization, and the other Party agrees to accept and pay for these services, fully meet with the requirements of the law.
Art. 628 of the Civil Code of Ukraine, which defines the content of the contract.
Art. 629 of the Civil Code of Ukraine defining bound by the contract execution.
Б) Art. 123 of the Family Code of Ukraine regulates the origin issues of the child, conceived with the help of reproductive technologies. Thus, in the Part 2 of this article, the couple who conceived a child with the help of reproductive technology, identified as his / her parents.
In addition, by Paragraphs 2.2. Item 2of the Order of the Ministry of Justice of Ukraine No140/5 dated from 05.18.2003, the order of registration of the spouse’s parental rights is established based on the notarially certified consent to such actions.
Thus, by these norms of current legislation of Ukraine, the spouse acting as clients under the contract with the surrogate mother is uniquely determined as parents of the child, who was conceived through reproductive technology.
The relationship between the Surrogate Mother, the Client, and the Medical Institutionare governed by the contract concluded on the subject of the in vitro fertilization procedure.
Herewith, the Parties are guided by the norms of Ukrainian legislation, given in ParagraphA), as well as:
1. Art. 4 of the Law of Ukraine Fundamentals of the Ukrainian Legislation on Health Care, according to which one of the basic principles of health is:
versatile nature of health care and its financing of the economy, the integration of state guarantees with the de-monopolization and the encouragement of entrepreneurship and competition;
decentralization of public administration, the development of self-government of institutions and the independence of health workers on the legal and contractual basis.
2. Art. 48 of the Law of Ukraine Fundamentals of the Ukrainian Legislation on Health Care, which provides the use of in vitro fertilization and embryo implantation, carried out according to the conditions and procedure established by the Ministry of Health, for medical reasons an adult female, which is carried out such an action, subject to the written consent of the spouses, to ensure of the donor anonymity and medical confidentiality.
3. Art. 38 of the Law of Ukraine Fundamentals of the Ukrainian Legislation on Health Care, the freedom to choose a doctor and the medical institution by the patient is determined.
4. Art. 79 of the Law of Ukraine Fundamentals of the Ukrainian Legislation on Health Care, which stipulates that public health institutions, citizens and their associations have the right, under applicable law, to independently conclude agreements (contracts) with foreign legal entities and natural persons for any forms of cooperation, to take part in the activities of the appropriate international organizations, and to carry out a foreign trade activity.
Thus, the above norms of the legislation of Ukraine regulate the opportunity to entry of medical institutions in a contractual relationship with a variety of natural persons and legal entities, in order to provide specialized services, including services for in vitro fertilization.
By Order of No. 24 dated from 02.04.1997, the Ministry of Health of Ukraine defined the procedure and conditions of the in vitro fertilization procedure.
This document provides that:
carrying out in vitro fertilization procedure is performed in accredited medical facilities (Paragraph 1.2.);
the question of the procedure is allowed according to a handling of capable women with whom this procedure must be done after completing the application of the spouses and their examination (Paragraph 1.3.);
theage of the woman, which is produced in vitro fertilization, should not exceed 40 years.
Herewith, no Art. 48 of the Law of Ukraine Fundamentals of the Ukrainian Legislation on Health Care, nor the provisions of the Order number 24 dated from 02.04.1997 of the Ministry of Health of Ukraine does not contain references to the fact that a woman, according to which the procedure of her in vitro fertilization is carried out, necessarily must be one of the spouses who gave consent to the procedure and adopt a the duty of parents in relation to the child.
Thus, based on the content of the current legislation of Ukraine, it is obviously the absence of any restrictions on the provision by a medical institution in vitro fertilization services, with the exception of personal medical contraindications for this procedure.
It should also be noted that:
The Convention on the protection of human rights and dignity with respect to the application of biology and medicine: Convention on Human Rights and Biomedicine of April 4, 1997, provides the following:
The interests and welfare of the individual prevail over the sole interest of the whole society or science (Art. 2).
The Parties, taking into account health needs and available resources, shall take appropriate measures to ensure that within its jurisdiction the equal access to good quality of medical care (Article 3).
Provision on in-vitro fertilization and embryo transplantation, adopted by the 39th World Medical Assembly (Madrid, Spain, October 1987), states that:
In-vitro fertilization and embryo transplantation is a medical technique available in many parts of the world, for the treatment of infertility.
From an ethical and scientific point of view, health care to human reproduction is justified in all cases of infertility, which is not amenable to classical drug or surgical treatment.
In all these cases, the doctor can act only with the full and informed consent of donors and recipients. The doctor must act primarily in the interests of the child to be born as a result of the procedure.
And in this part of the procedure of in vitro fertilization the WMA welcomes and supports the in-vitro fertilization. Further, the provision notes on the possible ethical and legal conflicts, when using donor eggs, sperm, and embryos.However, in a whole, the use of donor materials in the process of in-vitro fertilization provision does not only prevent, but also supports drawing attention to the need to comply with national law during the procedure.
The provision does not deny the possibility of using so-called substitutable parenthood, in which a woman agrees to artificial fertilization to conceive a child who would later adopted by a man or his wife.
The WMA expresses disapproval about the procedures related to in-vitro fertilization for a fee.
Thus, the relationship between the Client and the Surrogate Mother is not condemned by the WMA basically.And if the Client assumes the costs of the Surrogate Mother during pregnancy, thereby ensuring the most favorable conditions for the development of the fetus, that such an interpretation of the Client's expenses fully meets with the principles of the provisions.