On February 21, 2012 the bill on changes to some legislative acts of Ukraine pertaining to restrictions for the use of the Assisted Reproductive Technology was passed by the Ukrainian Parliament (Verkhovna Rada) in the first reading. The bill was adopted as a basis by 264 out of 385 people’s deputies registered in the debating chamber of Verkhovna Rada.
The bill introduces the following changes to legislation governing surrogacy issues in Ukraine:
1. Spouses shall not be considered parents of the child, born as a result of Assisted Reproductive Technology, only if they are citizens of the country where such method of fertility treatment is prohibited.
2. The age of a woman who undergoes artificial insemination and embryo implantation program in Ukraine should not exceed 49 years old as of the date of an embryo transfer. In exceptional circumstances upper age limit may be lifted upon motivated conclusion of the special committee created by the Ministry of Healthcare of Ukraine.
3. Assisted (surrogate) motherhood shall be applied only for citizens of the countries, where this method of fertility treatment is legally allowed.
4. Absence of a genetic relationship between a child and a surrogate mother and biological connection of at least one of the intended parents to a child shall be considered essential conditions for carrying out surrogacy programs in Ukraine.
5. Realization of the right on artificial insemination and embryo implantation is performed in accordance with the procedures established by current legislation of Ukraine.
Passing this bill, the Ukrainian legislator is aiming to ensure the welfare of the child in the context of medically assisted reproduction.
Nowadays there is a rapid dissemination of new technologies in the field of medically assisted conception. Development in this area may have different goals such as enhancing fertility, increasing the efficiency of the technology, diminishing ethical problems, increasing autonomy, reducing cost of treatment, simplifying protocols etc. Nevertheless, the widespread adoption of new technologies sometimes takes place without necessary evaluation of their efficiency, safety, social and economic consequences.
The ESHRE position paper “Task Force on Ethics and Law 13: the welfare of the child in medically assisted reproduction” distinctively recognizes that technology and research must always be subordinate to the welfare of the future offspring. In other words, the interests of the future child must prevail on the development and progress of science. The proportionality principle demands that the possible harm to the people involved (including the future offspring) should be outweighed by the possible benefits. Following this standard, the medical assistance is only acceptable if life conditions of the future child are optimal and the future person has abilities and opportunities to realize his goals that in general make a human life valuable.
Practice shows that applying surrogacy programs for the Intended Parents originating from the countries where surrogacy is banned out implies substantial difficulties, e.g. in citizenship transmissions and obtaining travel documents for the future child. Another problem is associated with the ability of a senior woman undergoing artificial insemination or embryo implantation to carry and deliver a healthy child as well as to take care of him or her till the majority age.
In the view of the above, reasonable restrictions pertaining to the use of the Assisted Reproductive Technology in Ukraine should serve to the best interests of future children.
Such position is caused by the fact that international surrogacy cases may involve problems pertaining to establishment or recognition of the child’s legal parentage and legal consequences which flow from such determination. Embassies of the countries banning surrogacy are not authorized to deliver passports or travel documents to children, born as a result of surrogacy procedures, so that new-born babies can have trouble returning home with the intended parents. In the light of the above, the purpose of the bill is to uphold the best interests of the children born by surrogate mothers in Ukraine, which complies with provisions of the United Nations Convention on the Rights of the Child, binding its State Parties by an obligation to ensure that the child is protected against all forms of discrimination, in particular on the basis of his status and origin, as well as to combat the illicit transfer and non-return of children abroad.
Further, the aforementioned bill introduces the following changes to the Law of Ukraine “Fundamentals of Health Legislation of Ukraine”: Assisted (surrogate) motherhood shall be applied only for citizens of the countries, where this method of fertility treatment is legally allowed. Absence of a genetic relationship between a child and a surrogate mother and genetic link of at least one of the intended parents to a child shall be considered essential conditions for carrying out surrogacy programs in Ukraine.