Reproductive medicine is one of today?s most exciting scientific and clinical areas. Every month there are announcements of medical ?firsts? and surrogacy has in the meantime developed into a global phenomenon. The other side of the coin is that the law governing medically assisted reproduction should keep up with the latest experience in order to meet practical legal needs and to secure rights and interests of all parties involved.
So the rising use of Assisted Reproduction Technology in Ukraine, including IVF and surrogacy, prompts the Ukrainian Parliament (the Verkhovna Rada) to update its family law legislation. Within the last year several bills? drafts regulating relationships in this area were registered in Verkhovna Rada.
Let us recall that initial bill draft on changes to the Article 123 of the Family Code of Ukraine (affiliation of a child born as a result of applying Assisted Reproductive Technology), suggesting straightforward prohibition for foreigners and stateless persons to make use of the results of applying Assisted Reproductive Technology, was recommitted by Verkhovna Rada for follow-up revision due to its inconformity with other legislative acts of Ukraine, in particular those establishing the principle of national medical system.
Taking into account opinion of the Central Scientific Expert Office by the Secretariat of the Verkhovna Rada of Ukraine as well as following the guidelines of the Ukrainian Association of Reproductive Medicine on cross boarder reproductive care, the revised version of the aforementioned bill provides differentiated approach to the effect that the spouses shall not be considered as 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.
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 as essential conditions for carrying out surrogacy programs in Ukraine.