Update 10.06.2019
Good news! All 5 law drafts, that we talk about in the article in 2018 were declined by the government and the current law is still in action that fully allows surrogacy, IVF and egg donation for Ukrainian and foreign couples. A working group of professionals is currently formed by the request of the government to create a one law for surrogacy in Ukraine that will regulate the IVF treatment, that law is called to allow, regulate in details and protect as all participants of the reproductive treatment, so the children, born using IVF and surrogacy.
Review of current legal situation on surrogacy in Ukraine.
Many words allert.
Please note, the below atricle was written in June 2018, pay attention to the updates!
Recently the internet exploded after the news that surrogacy in Ukraine will be banned for foreign couples. I have started to receive numerous questions regarding this matter and many current clients began to worry about their programs. That was absolutely expected. After a deep investigation of the situation, analyzing the 2 draft laws and after contacting specialists who took part in the creation of the second draft law, I am ready to give a clear and comprehensive answer. I will give you some details of my investigation of this issue because I myself am very interested in explaining to the intended parents and future families that it’s too early to make final conclusions. Besides, I am quite optimistic about the future changes in this field.
Update 03.08.2018
Today the situation is even better! We already have 5!!! Draft Laws for surrogacy and reproduction technologies! And only one of them (the first one) has limitations for foreign couples. Other Draft-Laws introduce regulations and improvements. Apparently, they are not all the same, they have some differences, but they are very similar and today there is no need to dive deep into all of them and compare them as they are all good except the first one, which in my mind, has very little chances to pass. So we will wait to see which one will pass the voting and will examine it. So follow us and keep in touch! :) We still recommend you to read all the article to the end so you can have a picture of what is going on.
The Short Answer
But first, I want to calm everybody: In my opinion, based on the results of my investigation and on the real situation in reproductive medicine in Ukraine - there will be no ban of surrogacy for foreign couples in Ukraine!
The Situation in the Media
The situation may look the opposite in the media, but the media is such a mechanism that tends to make sensations to draw attention, and not to go deep into the topic, making people afraid and confused when it’s absolutely not necessary. As far as I know, the media are currently discussing only one draft law, which makes surrogacy programs more complicated for foreigners, but does not ban it. In reality, there are two different draft laws. The second one only brings positive regulations to the existing legislation and to my mind, this is the law that will pass. Read on and we will discuss both draft laws in details.
So, the mess has begun from the scandal with one reproductive clinic in Kiev, which you might already know, it’s biotexcom. It was accused in trafficking of children. Let the special organs investigate the case, it’s not the topic of this article, but this is the point where the whole thing started. The reason of the mass reaction in the media is that the case became public after the statement of the chief prosecutor. The moment of the informational wave was then used by some haters of surrogacy in Ukraine among deputies and religion representatives to register some corrections to the current law on surrogacy (the first draft law) to the Ministry of Justice of Ukraine.
The First Draft Law in Details
The first draft law is a new law project, named “Corrections to some legislative acts of Ukraine (about protection of children’s rights using reproductive technologies) N8625 from 18.07.2018. In short, this is the law project, or bill that made so much fuss and it doesn’t ban surrogacy in Ukraine. I will point out the main changes, proposed in it:
1) Only the citizens of Ukraine, foreigners and persons without citizenship with permanent residency in Ukraine have the right for fertility treatment using reproductive technologies in Ukraine.
2) The second major point makes changes to the definition of the term “exploitation of people” in the Criminal Codex of Ukraine by adding the following text lines: “Forced use of a woman for a transfer of a human embryo in order to carry a child and give birth to a child.”
Now let me comment on this draft law. First of all, the goal of the first point is not to ban surrogacy in Ukraine but to make a restriction for foreigners entering Ukraine by visa, not only for surrogacy but for any ART (assistive reproductive technology) treatment, like IVF, egg donation and embryo donation in Ukraine. It requires permanent residency in Ukraine. My opinion is that this is absolutely unreasonable and puts the development of reproductive medicine in Ukraine at risk.
The second point is very questionable, because how can one actually force a woman to transfer an embryo and carry a pregnancy against her will? The order of the Health Ministry of Ukraine N787 from 09.09.2013 about the use of ART clearly states in point VI, 6.10. that there must be a special application from a surrogate mother and a consent of her husband if she is married. That consent even has a special form and is given in the same order in additions. Therefore, the correction regarding the forced use of a woman for an embryo transfer is not making any sense, because such a regulation is already present in the existing criminal law as “forced pregnancy” and the Order 787 gives clear regulations that a surrogate mother makes it from her free will.
This might sound all confusing and puzzled, but my personal opinion is that these corrections were made on a fast hand, on a scandal background and might not even pass the committees.
The Second Draft Law in Details
The second law project N8629 “Law for reproductive technologies” was presented the next day on the 19.07.2018 and registered to the Ministry of Justice of Ukraine. This law project was presented by 3 deputies from the presidential party, this fact is very important because this party has a big influence in Parliament today. The next important fact is that this law was in development for 5 years before registration with the help of the Ukrainian Association of Reproductive Medicine of Ukraine (UARM). It’s a separate law, not corrections to current surrogacy law, which is actually a number of legal acts. It is obvious that this law project has more chances to pass and it will be good if it passes through because it has actual improvements and better regulations that are missing or are not clear in the current law. I have contacted the UARM representatives regarding some points and watched a press conference that they have organized on this matter.
Let’s go through the main points of the second law project:
- Age limit till 55 years only for women willing to undergo a reproductive treatment in Ukraine. This limit doesn’t concern men.
- Definition of terms such as “genetic parents”, “surrogate mother”, “surrogate motherhood”, “In Vitro Fertilization”, “infertility”, “Assisted Reproductive Technologies”.
- According to this law, there must be a notarized agreement between intended parents and surrogate mother, stating the compensation, if necessary and refund of food, clothes, medical support for the period of gestation etc. There must be a notarized consent of husband of surrogate mother before the agreement.
- It is also proposed to enshrine in the law the obligatory genetic connection between the child and at least one of the intended parents and no genetic link between the surrogate mother and the child.
- The medical indication for surrogacy remains in this law as well. A woman-patient must have clear medical indications to undergo this kind of treatment in Ukraine.
- Only a married heterosexual couple can have a surrogacy program in Ukraine. Surrogacy is not possible for same-sex couples and persons without citizenship. Foreign couples receive treatment according to requirements of current legislation.
- In this new law project, the rights and obligations of surrogate mother and intended parents arise, which was missing in the current law.
- The egg donor remains anonymous, but in case of two-party agreement between the egg donor and intended parents the egg donor can donate without anonymity.
- An egg donor has no parental rights for the baby and has no right to find out the fact of the child birth and actual official parents.
- The personal presence of both intended parents is required.
- In case of death of both intended parents, in case of divorce or unrecognition of marriage before the birth of the child, the intended parents are recognized as parents of the child.
The article 15 in part III of this law, which is about the right of using the reproductive technologies, says literally:
“Ukrainian citizens, foreigners and persons without citizenship that live in Ukraine temporary or permanently, have the right to apply to health institutions for a fertility treatment using reproductive technologies”.
The problem is that “living” and “staying” are completely different terms in Ukrainian legislation. Temporary living is a special long-term card for a temporary living, and a short-term or long-term visa is a temporary stay according to the acting Law of Ukraine “For legal status of foreigners and persons without citizenship”. I have contacted a lawyer, who is a member of the UARM and took part in this law project development. She explained me that UARM fully supports the position where ART treatment is available for foreigners that are on the territory of Ukraine legally, it means a temporary stay by visa as well. This law project N8629 will undergo corrections from committees for this issue and in general, will probably look even better and will only improve the legislation of Ukraine for reproductive technologies and surrogacy.
Update 31.07.2018
A new 3d law project was registered to the Ministry of Justice of Ukraine on the 26th of July, the text has not been published jet. We have information that even the 4th law project is coming in August, it has being developed since 2011 and gives all rights to foreign couples that are on the territory of Ukraine on legal basis (read visa) to use ART and surrogacy in Ukraine. I will keep you informed in the next articles.
How the laws enact in Ukraine
In order to better understand the whole picture, I want to explain how the law is passed through and enacts in Ukraine – first, a number of deputies presents a draft law, register it and it appears online on a government website showing all the process of committees’ consideration, corrections made to the draft and the final voting. This process might be spread over time and undergo serious changes or even a full rejection. Even if the law passes the voting and is possibly adopted, the president of Ukraine has the right to put a veto on it. Such a veto situation happened in the year 2011 with an attempt to limit the age of women coming for reproductive treatment in Ukraine. The law was adopted, but the veto of the president made this law inoperative and right now in the year 2018 there is no age limit for reproductive treatment in Ukraine. The social attitude to surrogacy in Ukraine currently is more positive than negative, people started to accept this method of fertility treatment and understand the motives of surrogate mothers in Ukraine. I live in Ukraine and I see the feeling of people towards this topic. Even on TV news programs the voting shows a big acceptance among viewers, about 80% of them answer “yes” to surrogacy in Ukraine.
Final Words
With a big support and care, I want to say to all intended parents, woman and men looking for a solution in creating a family, please don’t believe everything the media say and check the current information in trusted sources, media can make a big sensation and mix the facts. My personal opinion is that there will be no ban for surrogacy in Ukraine, just legally proper improvements, because the second law project from 19.07.2018 was developed by professionals in this field. All reproductive clinics in Ukraine are working as usual and all are acting according to current law for surrogacy in Ukraine. The scandal with known reproductive clinic may affect the reputation of Ukraine, but I can assure you that all other reproductive clinics are working strictly in accordance with the acting law.
There is also a theory among reproductive providers that it was conducted by a country that is interested in the loss of reputation for Ukraine, where surrogacy is affordable and reproductive treatment such as egg donation, IVF are on a very high professional level and are even more advanced in some ways.
I hope this article was useful and you feel more confident now.
Anna Lisnichenko, Founder and Head-Coordinator. If you have questions - I'll be glad to help! Contact me.
