surrogate mother laws
The surrogacy agency “La Vita Felice” is ready to provide the following legal services:
· competent assistance in the work on completion of proper documents, contracts with medical institutions, a surrogate mother, oocyte donor;
· briefing on the active legislation (rights and obligations of genetic parents);
· assistance in the field of perfection of parental rights in registry offices.
The relationship between a surrogate mother and genetic parents should be regulated by the contract to be entered into in accordance with the following statutory documents:
А) Article 1 of the Civil Code of Ukraine, which states that all personal non-property and property relations (civil relations) basing on the principles of legal equality, free declaration of will, property independence of their parties are regulated by the Civil Legislation.
Article 6 of the Civil Code of Ukraine, which states that:
1. The parties have the authority to enter into a contract which, although not provided for by the civil legislation acts, would conform to the fundamental principles of the civil legislation.
2. The parties have the authority to regulate the relations between them, which are not regulated by the civil legislation acts, in a contract, which is provided for by such acts.
3. The contract parties may back out of the provisions of the civil legislation acts and regulate relationship between them as they think fit.
The contract parties may not back out of provisions of the civil legislation acts, should any such acts expressly state it, as well as in those cases where the binding effect of provisions of the civil legislation acts is made evident by their contents or the essence of the relationship between the parties.
4. Provisions of parts one, two and three of this Article are also applied to unilateral authorities.
Article 627 of the Civil Code of Ukraine, which defines the free nature of the contract.
Therefore, a contract, under which one of the parties enters into commitment to carry out a child conceived by the in-vitro fertilization method for the other party, while the other party enters into commitment to accept such services and effect payment for them, would conform, in whole, to the statutory requirements.
Article 628 of the Civil Code of Ukraine, which sets forth the subject of the contract.
Article 629 of the Civil Code of Ukraine, which sets forth the binding effect of the contract.
Article 639 of the Civil Code of Ukraine, which sets forth the form of the contract.
B) Article 123 of the Family Code of Ukraine regulates the aspects of the origin of a baby conceived with the aid of reproductive techniques. Thus, part 2 of the Article defines the spouses who conceived a child with the aid of reproductive techniques as the parents of such child.
Apart from it, subparagraph 2.2 of p. 2 of Order of the Ministry of Justice of Ukraine No. 140/5, dated May 18, 2003, stipulates the procedure of perfection of parental rights on the grounds of a notarized statement authorizing any such action to be issued by a woman who gave birth to the child.
Therefore, pursuant to the above standard acts of the active laws of Ukraine, any spouses standing out as the clients under the contract with their surrogate mother are expressly defined as the parents of the child conceived with the aid of reproductive processes.
All and any relationship between a surrogate mother, customer and medical institution should be regulated by an appropriate in-vitro fertilization contract.
In this case, the parties shall be guided by the standard provisions of the active laws of Ukraine, as specified in p. A, as well as in the following articles:
1. Article 4 of Law of Ukraine “Health Legislation Bases of Ukraine”, according to which one of the fundamental principles of health protection are:
· diversified structure of health economy and its financing, integration of state guarantees with de-monopolization and encouragement of entrepreneurship and competition;
· decentralization of public administration, development of self-administration principles for organizations and institutions and self-sufficiency of workers in the sphere of health protection on the legal and contractual bases.
2. Article 48 of Law of Ukraine “Fundamental Health Laws in Ukraine” providing for the application of artificial insemination and embryo implantation methods according to the terms and procedure established by the Ministry of Health of Ukraine, grounding on medical indications in respect of an adult woman who undergoes any such procedure, which is subject to the written consent on the part of the spouses, maintenance of donor’s anonymity and medical secret.
3. Article 38 of Law of Ukraine “Fundamental Health Laws in Ukraine” providing for the freedom of choice of a doctor and medical institution by a patient.
4. Article 79 of Law of Ukraine “Fundamental Health Laws in Ukraine” stating that health institutions and organizations, citizens and their associations have the statutory right to conclude independent agreements (contracts) with foreign legal entities and individuals for cooperation in any forms, be involved in the business run by relevant international organizations, carry out foreign economic activities.
Hence, the above-mentioned provisions of the Ukrainian laws regulate the establishment of contractual relationship between medical institutions, individuals and legal entities with the purpose of providing the core services, including in-vitro fertilization services.
Order No. 24, dated February 04, 1997 of the Ministry of Health of Ukraine sets forth the procedure and terms of application of the artificial fertilization method.
This document provides for the following:
· the artificial insemination procedure should be carried out in qualified medical institutions (p. 1.2);
· the method application issue should be solved on the grounds of the appropriate application of a legally capable woman to whom the method will be applied, following proper documentation of the application of the spouses and their examination (p. 1.3);
· the age of a woman subject to the artificial fertilization procedure should not exceed 40 years.
In this case, neither Article 48 “Fundamental Health Laws in Ukraine”, nor the provisions of Order No. 24, dated February 04, 1997 of the Ministry of Health of Ukraine contain any references as regards the condition, according to which a woman to be subject to the artificial insemination procedure grounding on her application shall be bound to be one of the spouses who gave their consent to the application of this method and incurred obligations to perform the duties of parents in respect of their child.
Therefore, proceeding from the provisions of the active laws of Ukraine, no restrictions are imposed as regards provision of in-vitro fertilization services by medical institutions, except cases where there exist medical contraindications to the fulfillment of this procedure.
It is worth noting that:
The Convention on Protection of Human Rights and Dignity, as concerns application of biology and medicine: Convention on Human Rights and Biomedicine, dated April 04, 1997, provides for the following:
The interests and well-being of an individual shall prevail over exclusive interests of the whole society or science (Article 2).
With medical requirements and available resources being taken into account, the parties shall take appropriate action to provide equal-right access to the adequate-quality medical aid within the limits of their jurisdiction (Article 3).
The in-vitro fertilization and embryo transfer provision adopted at the 39th World Medical Assembly (Madrid, Spain, October, 1987) states the following:
In-vitro fertilization and embryo transplantation techniques are recognized as the medical method commonly used in many parts of the world for infertility treatment purposes. This method can be applicable to both individual patients and the whole society. Apart from solving infertility problems, the method contributes to the treatment of genetic diseases and stimulation of fundamental research in the sphere of human reproduction and contraception.
From the ethical and scientific viewpoints the medical aid in the sphere of human reproduction is justified in respect of every case of infertility, which does not answer to medicinal or surgical treatment…
In any such case doctors can take appropriate action only with the full and well-informed consent of donors and recipients. Doctors must act, first and foremost, in the interests of a baby who will be born as a result of this procedure.
In this aspect too, the artificial insemination procedure and, in particular, the in-vitro fertilization method is welcomed and supported by WMA. The provision mentions further potential ethical and legal conflicts that may arise as a result of the use of donor’s oocytes, sperm and embryos. However, in whole, the use of donor’s genetic matter in the process of in-vitro fertilization is not prohibited but supported with attention being drawn to the need to observe the international law standard provisions in the course of the procedure.
In addition, the provision does not deny potential use of the so called “substituted parenthood”, where a woman gives her permission to the use of artificial insemination methods for the purpose of conception of a child to be subsequently adopted by a man or his wife.
WMA expresses disapproval as regards the procedures related to the use of in-vitro fertilization techniques on a commercial basis.
Hence, the relationship between customers and surrogate mothers is not basically disproved by WMA. Should the customer decide to bear expenses associated with the maintenance of a surrogate mother during her pregnancy period and, thus, provide for the most favorable fetus development conditions, any such concept of Customer’s expenses would meet in full the principles of the provision.
