Surrogacy: An international comparative analysis of the fundamental legislative principles of Ukraine

Setting the context

This paper focuses on the issue of legal surrogacy arrangements and considers relevant international questions. Surrogacy is a complex phenomenon of global interest, exhibiting a number of dimensions – medical, legal and ethical. The number of countries involved, different methods, diverse medical approaches and the variety of legislative bases come together to create complex trans-border surrogacy issues. In order to fulfil the objectives of this paper, a mixed-methods approach was utilised, implementing dialectical, historical and comparative legal analysis and synthesis and using analogous reasoning and legal modelling.

The initial phase of the analysis of these complex problems necessitated a clearer conception of the term ‘surrogacy’ as both a medical and legislative category. The meta-analysis indicated diverse interpretations. Scientists throughout the world have not reached common ground on questions relating to surrogacy. Nonetheless, there were sufficient similarities to conclude a number of main surrogacy classifications. These comprised the basic study objects from the perspective of both medical characteristics and legislative variations.

Samples

A comparative methodological analysis provides the ground to classify the main variations in global support for, and the prohibition of, innovative surrogacy technologies. Moreover, the explicit division into surrogacy types reveals the emergence, in both legal scholarship and legal practice, of several legal perspectives relating to particular methods of assisted reproductive technology. For example, some scholars propose a ‘surrogacy uncertainty’ approach, according to which the surrogacy method is not forbidden, and thus legislation regulating the attendant legal relations in these countries is absent. The diverse examples of state approaches to the adoption of innovative medical technology, as reflected in this article, confirm the complexity of this issue, and the necessity to approach it at both the national level (by regulating the contractual relations of the surrogate agreement parties) and internationally (by developing trans-boundary conventions and regulation of legal relations). In addition, the methods used allow for a more nuanced understanding of the specific challenges raised by the issue of surrogacy in Ukraine.

Statistics

The enquiry used mixed methods. When studying diverse medical and legislative approaches, some national demographic statistical data were used, and statistical tests were introduced to determine demographic differences.

Interpretation of the term ‘surrogacy’

Given the lack of an integrated set of conceptions and categorisations in the area of surrogacy, and the diverse uses and interpretations of the main terms, it is necessary to consider the definitions of the concept of ‘surrogate motherhood’ in both doctrinal and legislative fields and at national and international levels. It is worth noting that authors using the definition of ‘surrogacy’ in scientific works tend either to focus on one particular category of surrogacy or to formulate the concept too broadly, with a concomitant reduction in the articulation of the characteristics particular to surrogacy.

An example of a narrow interpretation is provided in the definition proposed by Rozgon, where surrogacy is proposed to be considered as fertilisation of a woman through implantation of the embryo using the genetic material of a spouse for the bearing and birth of a child which, following birth, will be recognised as originating from the pre-existing marriage.^5–7 For the most part, such relationships are commercial in nature and take place on the basis of agreement between spouses and the surrogate mother. However, some authors rightly point out that such an interpretation of the concept narrows its scope.

In turn, Holovashchuk suggests that surrogacy should be framed as a method of assisted reproductive technology, consisting of carrying the embryo of another female (surrogate mother) of a person’s embryo conceived by potential parents (or one of the parents and a donor) for the purpose of the birth of a child, and the transfer of the child to potential parents. Khurtsilava defines surrogacy as a conception using the methods of assisted reproductive technologies: pregnancy, birth and the subsequent transfer of the child under an agreement between the surrogate mother and potential parents. Rusanova suggests understanding surrogacy as reproduction through which a woman gives voluntary consent to pregnancy in order to bear, give birth and transfer the baby to other people (i.e. its legal parents). Chernyshova interprets this term as ‘an act of medical intervention carried out by implantation of an embryo to a female (surrogate mother) organism (foreign or native genetic material) for the purpose of carrying it to term and for the subsequent birth of a child to be passed on to parent-customers on the basis of contractual obligations’. ⁸

More broadly, in reference to the Dictionary of Assisted Reproductive Terminology of the World Health Organization (WHO) and The International Committee for Monitoring Assisted Reproductive Technologies, surrogacy is the arrangement under which a pregnant woman agrees that the parentage of a child born as a result of the pregnancy is to be transferred to another person or persons. ⁹ So, it is an assisted reproductive technology used to treat infertility by which another woman carries and gives birth in place of potential parents. It should be noted that through the concepts and provisions of foreign states, there is no unified legislative definition of the surrogacy concept and its types. Thus, in British law, one can see the terms ‘surrogacy motherhood agreement’ and ‘surrogate mother’. ¹⁰ The Normative Acts of the Federal Republic of Germany use the term ‘surrogate mother’. ¹¹ In counterpoint, the Code of the Republic of Kazakhstan of 19 September 2009, No. 193-IV, ‘On the Health of the People and the Health Care System’, provides an interpretation of the term ‘surrogacy’ under which the legislator understands the carrying and giving birth of a child, including cases of preterm labour, for an agreement between a surrogate mother (a woman who carries a foetus after the introduction of a donor embryo) and potential parents (Article 100). ¹²

Focusing on the above definitions of the concept under research, we can state that the concept of surrogacy is considered from the point of view of the agreement (conclusion of the contract), the defined process (conception, bearing and birth of a child) or technology of reproduction of a person. The above doctrinal definitions adapt to the realities of the present and gradually receive their legislative consolidation both at the national and international levels.

It is worth noting that in the modern legal literature, there is also no unanimity in the formulation of the key terms relating to these methods of assisted reproductive technologies. For example, in Ukraine, analogues of the term surrogacy are used, such as ‘auxiliary motherhood’ and ‘replacement motherhood’. In particular, in the Order of the Ministry of Health of Ukraine No. 787 of 9 September 2013, section 6, these two terms are used simultaneously and interchangeably, which in turn leads to complications regarding law enforcement. In its turn, the WHO uses the term ‘gestational courier’ (instead of the term ‘surrogate mother’), which suggests a novel contractual understanding of the status of the woman whose pregnancy was the result of fertilisation of oocytes by third-party sperm (patients). The process of carrying the child takes place in accordance with the terms of the contract, which, among other things, stipulates that one or both of the persons whose gametes were used for fertilisation should be considered as the parent(s) of the child. ¹² Returning to Kazakhstan, the term ‘surrogacy’ has not yet received a comprehensive legislative interpretation.

Surrogacy types

A historical review of the diversity of surrogacy classifications begins with so-called traditional (or genetic) surrogacy, the basis of which is the presence of a genetic connection between a surrogate mother and her child. The first programme of traditional surrogacy was planned and fully managed – in both its medical and legal dimensions – by Surrogate Parenting Associates, Inc., in Louisville, USA. This culminated in 1980 with the successful birth of a child. However, this led to the court’s refusal to vest parental rights in the surrogate mother in favour of the biological mother, in accordance with the extant legislation of the country. ¹³ Subsequently, this method was tested in the UK in 1985. However, it took four years to obtain permission from the British Medical Association for the programme of surrogacy. ¹⁴ It is worth noting that in Kazakhstan, and throughout the post-Soviet states, this innovative method was first tested in 1995 in Kharkov. ¹⁵ Despite progress, this type of reproductive technology remains inadequately regulated, particularly in Ukraine. Taking into account the aforementioned articles of the Family Code of Ukraine, it is concluded that surrogacy is considered solely as a question of full (gestational) surrogacy; other types remain unaddressed by the legislator.

The second kind is unconventional (or gestational) surrogacy, the essence of which is that there is no genetic link between the surrogate mother and the child. This form is the most widespread in world practice. Unlike surrogacy sui generis, there is no radical surrogacy permitted in any of the countries that have legalised this institution in marriage and family relationships. Whenever this method is used, the following genetic links between the child and the parents are possible: (a) communication with the parent alone, (b) connection with the mother only, (c) communication with both parents or (d) the child has no genetic links with the parents. Despite the fact that the common basis of the types under consideration is one criterion – a genetic link –the circle of persons between whom it exists may differ. Indeed, the most expedient, complete and substantiated classification that is worthy of attention and support can be considered a classification proposed by Antsukh, which distinguishes the following types, taking into account existing approaches:

I. Genetic affinity between a surrogate mother and a child:

 • sui generis surrogacy – implies the existence of a genetic link between a surrogate mother and her child;

II. The genetic link between a child born by a surrogate mother and both parents or one of the actual parents of this child:

 • complete surrogacy means the presence of a genetic link between two actual parents of a child born by a surrogate mother;

Global support and prohibition of innovative technology

Regulation of the legal surrogacy relationship may occur on two levels: international and national. The need for international legal regulation introduces two factors: the indirect regulation of this type of auxiliary reproductive technology and the recommendatory nature of most international laws. It is worth mentioning that the World Medical Association Assembly in 1987 adopted the Declaration of the World Medical Association on in vitro fertilisation and embryo transplantation, ¹⁷ which contained provisions on surrogacy but which was abolished in 2006. The following documents are devoted to the regulation of individual issues of surrogacy at the international level, in particular, the articles of the UN Convention on the Rights of the Child, which establishes the standards, including the right not to be discriminated against on grounds of birth or parental status and the right of the child to obtain a name and acquire a nationality. ¹⁸ The International Covenant on Economic, Social and Cultural Rights ¹⁹ and the Convention on the Elimination of All Forms of Discrimination against Women ²⁰ established the right to health and maintenance, which in practice, in the context of the legal relationship in the field of surrogacy, is implemented through free prenatal care and treatment for a surrogate mother.

One further document – Recommendations of the Inter-Parliamentary Assembly of the Member-States of the Commonwealth of Independent States – has provisions ‘On ethical and legal norms, safety of genetic medical technologies in the CIS member states’ ²¹ which are designed to harmonise the state policies of Commonwealth countries in the field of ethical-legal regulation of genetic medical technologies, and extend to all types of medical activities involving the application of genetic technologies to humans.

The explicit division into surrogacy categories has thus led to the emergence – in both legal science and legal practice – of several legal regimes of the investigated method of assisted reproductive technologies. The first kind is the altruistic regime in which surrogacy is permitted by the state, but the surrogate mother receives compensation for expenses only for medical care and other expenses related to pregnancy. Future parents establishing the agreement with a surrogate mother are not entitled to pay for any form of childbearing and birth service. This approach is intended to avoid the transformation of the process into a product, comprising a surrogate mother and a child (often considered as a sale of children). The altruistic regime was adopted in such countries as Australia, Canada, the UK, the Netherlands and Belgium.

The second kind – permission based – provides legalisation of the surrogacy method at the national level. Examples of countries that are implementing such consolidation are Georgia, India, the Russian Federation and Ukraine. However, this legislative regime may exhibit certain variations. For example, in Israel, surrogacy is controlled by the state through a licensing system at all stages of the process. Meanwhile, in South Africa, a contract with a surrogate mother must be certified by a court.

The third kind is prohibitive, according to which the establishing of the surrogacy agreement is not allowed by law. The main reason for selecting such a regime is due to moral and ethical principles, as well as the prevention of the transformation of children into goods and the abuse of surrogate mothers. Among the countries that mostly favour this regime are: France, Sweden, Hungary, Germany, Iceland, Italy, Japan, Switzerland, Pakistan, Saudi Arabia and Serbia. ²² Thus, in France, surrogacy is banned due to its contravention of the legislative provisions on the ‘inalienability of the human body’. ²³ In Germany, it is regarded as an offence to make any attempted artificial insemination or implantation of a human embryo to a woman (surrogate mother) who is ready to abandon her child after her birth or to implant a human embryo. ²⁴

Some scholars suggest a further separation involving a fourth regime – uncertainty – according to which the investigated method of assisted reproductive technologies is not forbidden, and, in turn, legislation that regulates such legal relations in the states is absent. This group of countries includes Venezuela, Ecuador, Jordan, Colombia, Malaysia, Peru, Uruguay and others.

Surrogacy agreements: legal, medical, moral and ethical nature

The Hague Conference on Private International Law emphasises that within the framework of the legal regulation of the Convention on the Protection of Children and Co-operation in the Field of Interstate Adoption (International Adoption Convention 1993), ²⁵ countries may resolve issues in the field of international surrogacy treaties for themselves, providing for the impossibility of remuneration or compensation for such cooperation. The convention establishes, among other things, some procedural safeguards in Article 17, which stipulate that before a child is entrusted by future adopters, a number of important procedures need to be executed, and the central authorities of both countries must agree to such adoption. Depending on the conclusion of international surrogacy agreements, the parties agree that the child will be entrusted to parents without any prior formalities or safeguards.

In the legal literature, there are several approaches to defining the legal nature of the surrogacy agreement. Primarily, the issue relating to the assignment of the surrogacy agreement – whether by a civil-law or family type of agreement ²⁶ – remains. The resultant surrogacy agreement establishes two types of relations: property (payment for services related to surrogacy, current expenses of a surrogate mother during pregnancy and childbirth) included in the scope of civil law, and non-property (the process of implantation of the embryo, carrying and birth of a child by a surrogate mother, establishment of motherhood and fatherhood), which are all related to the domain of family law regulation. Second, some scholars, recognising the civil law nature of the surrogacy agreement, point out its similarity to various types of private agreements: leases, buying and selling and payment of services resulting in a hybrid form of agreement containing elements of the main approaches.

Turning to the parties to such agreements, it must be admitted that spouses serve the owners of the service, and that the surrogate mother becomes the executor. Scientists offer a certain list of criteria to be met by the contracting party, in particular: (a) age – adulthood, the maximum age is not stipulated by law, but from a practical point of view, the recommended age is 35–36 years; (b) medical – a surrogate mother should be completely mentally and somatically healthy, and have no contraindications that would complicate or make it impossible for her to bear the child and give birth; (c) social – a person must, prior to the conclusion of the contract, give birth to a healthy child; and (d) legal – granting a legally agreed consent by signing the corresponding application for implantation of the embryo, which is attached to agreement and is an integral part of it. ²⁷ It is also worth mentioning the presence of legislative requirements for the genetic parents of the child in the territory of Kazakhstan. Domestic norms prohibit the provision of genetic material to juvenile marriages, despite the gaining of full civilian capacity in connection with the marriage. The USA has also resorted to a similar concept. However, the agreement which is already in place in the domestic sphere needs to be approved by the court; in case of non-compliance with such an agreement, it will be considered null and void, leaving the surrogate mother her right to a newborn child. ²⁸ The procedure for notarisation of surrogacy agreements is also determined in Belarusian legislation by the Law of the Republic of Belarus of 18 July 2004 ‘About notaries and notarial activities’ ²⁹ and chapter 12 of the Instruction on the Procedure for Performing Notarial Acts, approved by Resolution of the Ministry of Justice of the Republic of Belarus of 23 October 2006, No. 63, ³⁰ according to which a surrogacy agreement can be certified by any notary.

In comparison, the analysis of the contemporary legislation of Ukraine gives ground to assert that the standardisation of forms of the surrogacy agreement has not yet been achieved. Based upon the practice of concluding civil agreements and peculiarities of the surrogacy agreement, it is expedient to conclude it in writing with a mandatory notarial certification.^31,32 The content of the agreement, in accordance with the law and practice of business, must constitute essential conditions, including the entity stated for the provision of services, b) the price determined by agreement of the parties, the terms of the agreement and so on. The latter condition requires the precise determination of the chronological framework of the contractual relationship between the entry into force of the agreement and its termination or dissolution. ³³ The most important part of the agreement is clearly its content, which specifies all essential conditions, rights and obligations of the parties, as well as other provisions that the parties consider necessary to reflect in the agreement.

Indeed, significant complications relating to the existence of a surrogacy institute are due to the lack of such comprehensive legal regulations. At the same time, the concept of freedom of entrepreneurship creates the factual basis for the provision of surrogacy services by specialised medical services in order to obtain monetary benefits for such services. It can be indicated that the obligatory legal basis gives rise to certain legal relations in the field of surrogacy, and the establishing of agreement between the surrogate mother and spouses, which defines their rights, duties and other essential conditions.

Despite the fact that surrogacy, including commercial maternity, is legalised by the Family Code of Ukraine, the Ukrainian legislator has not yet adopted a law or a sub-legal regulatory Act that regulates all aspects of surrogacy. Thus, at the moment, there are provisions of the Ukrainian legislation that allow the use of commercial surrogacy programmes, but the Family Code of Ukraine does not contain any rules on the content of the agreement on carrying a child, its legal consequences or the procedure for entering into such an agreement, amending it and terminating it.

Scientific research into a surrogacy institute in the context of a comparative analysis of legislative regulation is undoubtedly supra-national. Therefore, the proposed suggestions should be considered in a complex context alongside national and international scientific approaches to the described issues.

The outlined problems need an urgent solution, taking into account positive international legal practice. In particular, the authors’ domestic proposal for the adoption of the legalisation of a surrogacy institute while simultaneously amending the current legislation in Ukraine has already been supported in part, and similar points of view have been suggested by scientists. Therefore, the authors’ proposed legislative transformations are well founded and consistent with the concepts of legal tenet and time requirements, and are to be themselves recommended.