Surrogacy agreements can be regarded as legitimate only if the rights of all three parties – couple, gestational mother and child – are respected. The Ukrainian law does not expressly stipulate that surrogacy agreement is essential and obligatory element in surrogacy relations. However, since Ukrainian legislation is not very specific in this field, surrogacy agreement is almost the only legal document, which regulates said relations as fully as it is necessary.
While the provisions of the Family Code mentioned above have already legalized commercial surrogacy, our legislator has not passed laws and resolutions to regulate all legal aspects of surrogacy yet. Therefore, today, we have the provisions in force, which allow commercial surrogacy and we do not have any provision in the Family Code stipulating the gestational surrogacy agreement, its legal effects and the procedure of concluding, amending, and termination.
According to the Article 9 of the Civil Code of Ukraine, the provisions of the Civil Code are applicable also to family relations, which are not regulated by other legal acts. The Article 6 of the Civil Code stipulates that parties have a right to enter into agreement, which is not provided by laws and regulations, but is in compliance with the general principle of civil law. Therefore, when drafting surrogacy agreement we should consult the Chapter 52 of the Civil Code stipulating the general provisions on agreement.
The following are the main and most crucial clauses of surrogacy agreement:
Pursuant to part 2 of Article 123 of the Family Code, the parties to surrogacy agreement shall be the surrogate (or gestational carrier) on one hand, and the intended parents (or commissioning, or genetic), being a married couple, on another hand. This provision does not mention the consent of the surrogate’s husband, assuming that his interests are not involved herein. According to the law, nobody, including husband or wife, may limit the reproductive rights of a person.
Still, on the other hand, the Family Code presumes that the father of the child born to the registered marriage shall be the husband of the woman who delivered the child. That is why we believe it to be important to involve the surrogate’s husband, if any, as a party to surrogacy agreement, where both the surrogate and her husband relinquish custody of the child born to the Surrogate for benefit of and upbringing by the Genetic parents. The Order of Ministry of Health No.787 stipulates that a surrogate has to be legally capable woman of majority age (over 18) and have at least one child of her own, to be physically and mentally healthy and capable to carry and deliver a child. Intended parents are to be a married couple, both over 18, at least one should have medical prescription to undergo treatment by assisted reproductive technology.
A surrogate is impregnated by means of assisted reproductive technology, carries and delivers a child not genetically related to her and relinquishes custody of this child to the genetic parents as child’s legal and natural parents. Genetic parents assume all parental rights and responsibilities for the child from that time forward and pay actual expenses incurred by a surrogate and an amount of remuneration for her service.
Form of surrogacy agreement is to be made in writing, sometimes before a notary to secure legal rights and responsibilities of the parties and the child. The surrogacy agreement is to be signed and notarized prior to the embryo transfer. The parties have to be sure that the agreement is concluded after careful consideration and counseling with respect to all aspects of each issue involved in the agreement and that the parties enter into surrogacy agreement voluntarily and in the absence of coercion of any kind. Since the Family Code provides for a married couple to be the genetic parents of the child born by a surrogacy, a marriage certificate of the genetic parents, notarized and apostiled by your country, must be provided, translated and translation must be notarized.
The following documents should be executed before the notary and constitute the integral part of the surrogacy agreement: – Consent of the Surrogate to record the names of the Intended parents on the birth certificate (to be further filed with a Vital Statistics Office after child’s birth); – Consent of the surrogate’s husband, if any, on his wife’s participation in the surrogacy program and waiver of any claim he may have with regard to his paternal rights to the child she will deliver.
A lawyer or a notary shall keep confidentiality of information contained in surrogacy agreement.
Responsibilities of gestational surrogate carrier
The surrogate agrees to comply to the best of her abilities with all medical instructions given to her by her physician or obstetrician, not to participate in dangerous or hazardous activities while pregnant, to disclose all information about pregnancy progress to genetic parents. The surrogate signs the consent required for a registration of birth in a vital statistics office stating her consent to register the genetic parents as parents of the child she will deliver pursuant to surrogacy agreement.
The surrogate and surrogate’s husband shall agree to make no attempt to contact or maintain communications with the child born pursuant to surrogacy agreement subsequent to the birth of the child without the genetic parents’ prior written approval.
Responsibilities of intended parents
Intended parents accept custody of any and all children born pursuant to the surrogacy agreement, regardless of gender, number, health, physical condition, psychological condition, premature or full term. Intended parents pay actual expenses and remuneration to the surrogate as it is provided by the agreement. Actual expenses and the amount of remuneration According to the Article 632 of the Civil Code of Ukraine the value of remuneration is to be determined by the parties. There is no restriction to the value of remuneration and actual expenses to be paid to the gestational mother.
The value of the surrogacy agreement
It consists of two components: the first one – the intended parents are to compensate actual expenses occurred by the gestational mother, i.e.: – living expenses to meals, maternity clothing, lost wages, transportation, housing etc.; – medical expenses to all medical, pharmaceutical, hospital, laboratory and therapy expenses associated with any testing done at the request of the treating physician, embryo transfer, pregnancy monitoring, prenatal classes, – delivery and post-delivery rehabilitation; living and medical expenses occurred by the surrogate are to be supported by receipts. The second one is remuneration to the gestational mother. The value of remuneration is determined as agreed by the parties and does not include actual expenses occurred by the gestational mother during the pregnancy and delivery.
If the surrogate undergoes a medically based termination of pregnancy with medical consent and consent of the parties, or has a miscarriage, she will be entitled to the amount of expenses accrued corresponding to the length of the pregnancy, remuneration is not paid, and small compensation may be offered.
Termination of agreement
Early termination of agreement: Early termination of agreement may take place before the surrogate becomes pregnant (when the surrogate has not become pregnant or at the discretion and with written approval of all parties). The gestational mother has the right to withdraw from the agreement only before the transfer of the embryo in her body. In the event of early termination of the surrogacy agreement, the commissioning parents shall be responsible for the Surrogate’s costs and expenses incurred to date.
Breach of agreement
The surrogate refunds all expenses paid to her by the commissioning parents if she breaches any material portion of the surrogacy agreement (abortion, acting dangerous, failing to follow physician’s directions, providing false information, pregnancy prior to the embryo transfer, failing to relinquish the custody of the child, etc.). If the Surrogate breaches the Agreement, she subsequently loses her right to any remuneration.