Within the last year the issues of surrogacy in Ukraine spark hot debates among practitioners in this field, ethicists, legislators, the media and the public. In effect, legal regulation pertaining to the use of Assisted Reproductive Technology (ART) undergoes some amendments:
On September 20, 2011 Ukrainian Parliament (the Verkhovna Rada) adopted the Law on changes to the Clause 123 of the Family Code of Ukraine regarding affiliation of a child born as a result of applying Assisted Reproductive Technology. Previous version of this provision read as follows: If an embryo conceived by the spouses using Assisted Reproductive Technology is transferred into the body of another woman, the spouses shall be the parents of the child. Taking into account increasing meaning of cross boarder reproductive care and use of ART by foreign patients in Ukraine that may be both heterosexual and semi-sexual couples according to their national legislation, a legal term ?the spouses? was specified as ?a man and a woman? in a new version of the Law.
On the same day another bill draft on changes to the aforementioned Clause 123 of the Family Code of Ukraine was recommitted by Ukrainian Parliament to its author for follow-up revision. This bill suggested the following restrictive supplement to the Clause 123:
– Only Ukrainian citizens that have reached the age of 21 shall make use of the results of applying Assisted Reproductive Technology;
– Foreigners and stateless persons, legally incapable persons as well as persons that are registered or take treatment in psychoneurological or narcological dispensary shall not make use of the results of applying Assisted Reproductive Technology.
According to the conclusion of the Central Scientific Expert Office by the Secretariat of the Verkhovna Rada of Ukraine the bill is contradictory to the provisions of other Ukrainian legislative acts.
Firstly, determination of a lower age limit for use of ART does not conform to the Clause 281 of the Civil Code of Ukraine, stipulating that a woman and/or a man of full age (i.e. persons who have reached the age of 18) shall have a right to apply to treatment by means of Assisted Reproductive Technology on appropriate medical indications.
Secondly, restrictions of the ability of foreign citizens to resort to using ART in Ukrainian medical institutions do not conform to core principles of foreigners? treatment in Ukraine.
Clause 26 of the Constitution of Ukraine guarantees that foreigners and stateless persons who stay in Ukraine on legal grounds enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, unless otherwise is provided by the Constitution, laws or international treaties of Ukraine. The same principle is reflected in the Law of Ukraine ?On the Legal Status of Foreigners and Stateless Persons? of 04.02.1994 ? 3929-XII. Moreover, the Constitution of Ukraine affords a right to health protection, medical care and medical insurance to everyone (Clause 22) and establishes that the content and scope of the existing rights and freedoms shall not be diminished by adoption of new laws or by introducing amendments to the effective laws (Clause 49).
In the view of the Central Scientific Expert Office by the Secretariat of the Verkhovna Rada of Ukraine it would be reasonable to implement differentiated approach towards applying Assisted Reproductive Technology by foreigners in Ukraine giving due consideration to legislation regulating using these techniques, especially surrogacy issues, in the countries of their residence.