[Study updated in 2022]
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Legislation
A very superficial regulation
The regulation of surrogacy in Ukraine is not done by a law but through the Family Code and an order of the Ministry of Health[1] . In the Family Code, it is Articles 2 and 123, which state that if an embryo of a commissioning couple is used in the body of the surrogate mother, then it is the commissioners who will be considered the parents from the moment of conception. Order 187 of 9 September 2013 provides a definition of surrogacy as well as a framework for the filiation process.
Resctricted clients
As there is no regulatory provision to the contrary, Ukraine allows commercial surrogacy for its residents and foreigners. The use of surrogacy is subject to certain medical conditions according to Article 6 of Order 187 of the Ministry of Health in 2013[2] : an absence of a uterus, severe genetic diseases that may prevent pregnancies or encourage the inheritance of these traits, a deformation of the uterus and at least four failures of implantation of the embryo with IVF treatment[3] . It is under this same article that the mother and father of the child are identified through their genetic material. Commissioners are recognised in the context of gestational surrogacy, with using the male genetic material of one of the commisioners being mandatory, oocytes that may belong either to the commissioner or to a database of providers. This order also limits access to surrogacy to married heterosexual couples, single individuals and homosexual couples cannot have access to it.
Questionable medical and financial activities
There are reportedly about 50 clinics doing in vitro fertilisation (IVF) in Ukraine[4] and therefore potentially surrogacy programs. However, several lawyers and reproductive specialists in Ukraine have pointed out that many agencies are ghost agencies, not registered in Ukraine but in offshore tax havens[5] . Medical procedures depend only on regulations and not on law and furthermore, clinics are not monitored to make sure they are following the reglementation[6] .
Legal commercial surrogacy
The law does not regulate the remuneration of surrogate mothers, it depends entirely on an agreement between the two parties according to article 623 of the civil code. Depending on the case, surrogate mothers may be the ones to set their prices in direct private agreements[7] , but in cases where an agency and intermediaries are involved, prices seem to vary between €30.000 and €70.000 for entire programmes which include the surrogate mother’s remuneration, agency fees, potentially accommodation and plane tickets[8]. Typically, surrogate mothers are paid between €10,000 and €15,000.[9]
Surrogate mothers trapped by contracts
The only time the surrogate mother can change her decision is before the implantation of the embryo, in which case she will have to pay for the previous treatments and medical visits. In the situation where the commissioning couple decides to abandon the child, the child will find itself in an orphanage and potentially stateless if it is a contract where the surrogate mother abandons all responsibility. In cases where there is no contract, it will be up to the surrogate mother to take care of the child as she will be recognised as the legal mother. Finally, in cases where the surrogate mother refuses to transfer filiation in a non-contractual situation, the sponsors will find it difficult to recover the child[10]. The regulations make no mention of situations where the clients would abandon the child, there is no liability until the administrative papers are signed[11] .
On eggs harvesting
The regulation of oocyte retrieval is based on Article 48 of the Law of Ukraine “On Health” as well as Article 123 of the Family Code, however, the Instruction No. 771 of 23.12.2008 “On the procedure of use of assisted reproduction technologies” adopted by the Ministry of Health regulates the legal aspects. The situation of the donor may seem unclear, as the law provides for her anonymity[12], however, some clinics offer the possibility of knowing the donor when the child reaches the age of 18[13]. Donors must be between 18 and 35 years of age, and married donors must have their husband’s consent[14] . They must also have had a child in the past, be in good physical and mental health and free of congenital or hereditary diseases and alcohol or drug use[15] . They are also subjected to several health tests, for blood group and Rh factor but also other infectious diseases such as HIV, Hepatitis etc[16] .
Little chance at reform
The issue of regulation and legislation of surrogacy in Ukraine only really came to the forefront when scandals occurred. The debate came to the table in 2020 when the pandemic prevented clients from picking up newborns. Following the scandal, a law was proposed to prevent foreigners, or at least nationals of countries where the practice is prohibited[17] , from accessing the surrogacy services in Ukraine but nothing has been done since.
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Surrogacy and trafficking of children and women
Surrogate mothers in vulnerable positions
As the average monthly salary in Ukraine is about 300€[18] , the money that surrogate mothers receive from surrogacy arrangements can be seen as a starting point for a new life. Thus, many modest women become surrogates and are recruited because of their vulnerable situation[19]. While some studies mention middle class women[20] , it should be noted that the equivalence to a middle class is very different between Ukraine and Western Europe and that the poverty line is therefore not equivalent. Maria Dmitryeva, a human rights activist in Ukraine, has reported that the Russian invasion had led to recruiters taking an interest in women fleeing war to become surrogate mothers[21] . One displaced woman from Donestk was recruited to become a surrogate mother[22] , raising the possibility that other women refugees from the conflicts in Crimea and the pro-independence regions of Donbass and Luhansk may have been recruited to become surrogates. It is not unusual for former surrogate mothers to be recruited again[23] .
Displaced women
The most vulnerable women are those living in the countryside[24] , so they have to move or be moved by clinics and agencies to monitor the pregnancy[25] . Despite the ban, some agencies offer their services to same-sex couples and clients who want to choose the sex of the fetus, but this requires moving the surrogate mother to the Turkish-controlled and unrecognised northern part of Cyprus where regulations are ambiguous[26] . However, this technique has been disrupted by the Covid-19 crisis and the closure of borders. Thus, the situation for surrogate mothers has been terrible, with a lack of medical staff, where a newborn baby died while doctors tried to save the life of the surrogate mother who was bleeding internally and vomiting[27] . Some surrogate mothers have been forced to give birth by cesarean section in order to give birth as soon as possible, and are afraid to seek postnatal care in Ukraine as they have no child to show for it[28] .
Racial eugenics
With regard to the use of oocytes for surrogacy, Ukrainian women’s oocytes are strongly promoted by companies like BioTexCom[29] or Successful Parents[30] for the beauty of Ukrainian and/or Slavic women. It is possible to see a racial bias in favor of white, blond and blue-eyed women.
During Russia’s 2022 invasion
The invasion of Russia in February 2022 also led to several abuse of authority from agencies, with surrogates being moved around the country by the Delivering Dreams agency[31]. The war has also prevented many women from accessing quality medical care, with doctors being taken on for the war effort[32] . There have also been cases of women giving birth by cesarean section as quickly as possible in order to hand the child over to clients[33], without regard to the health status of the surrogate. Testimonies from women who were sequestered in the BioTexCom bunker mention the lack of food, care, water and staff, as well as the impossibility of contacting the commissioning couples[34] .
No regards to the health and safety of surrogate mothers
Abuses are not limited to the exceptional contexts of pandemic or war. In 2018, a surrogate mother started bleeding after stopping hormone treatment and had to have an emergency cesarean section at 5 months of pregnancy, where both fetuses died. She was told she would have to burn them and was only given the equivalent of $200 in compensation[35]. It is also common to implant multiple embryos to maximize the chances of pregnancy and then abort the extra ones, but also sometimes to keep them because a double birth means more returns for the clinics and agencies[36] .
Abandoned children
There are cases where surrogacy children are not wanted by the clients, and they end up in orphanages[37] . The pandemic[38] and the war[39] have increased the number of children born to surrogacy arrangements in orphanages. There are also cases where children with disabilities are abandoned[40][41] . Since Ukrainian law only recognises the commissioning parents from the moment of signing the contract, if they do not come to do the administrative procedures after the birth, these abandoned children have no parents and no nationality. On 21 March 2021, the European Commissioner for Migration and Home Affairs warned of the dangers of trafficking in babies born through surrogacy in the context of war and flight from the country[42] .
An industry concealing crimes
In July 2018, the BioTexCom agency was charged with human trafficking by the Prosecutor General of Ukraine after an Italian comissioning couple discovered that the child handed over to them was not genetically related to the client and that the documents had been falsified[43][44] . In addition, in 2020, the country’s police arrested a gang that used surrogate mothers for clients in China[45] . These clients used fake marriages with the surrogate mothers in order to take the children to China and are believed to be single men[46] . The idea that some were really looking to have a child in a country where the female population is vastly inferior to men should not hide the reality that child trafficking in China is used for begging gangs but also for sexual exploitation[47] and these Ukrainian-born children may also be victims.
[1] Council of Europe “Surrogate motherhood. Addendum to the replies to the questionnaire on access to medically assisted reproduction (MAP) and on the right to know one’s origins for children born after MAP”, Bioethics Committee, 2019
[2] Guseva, A. “Scandals, morality wars, and the field of reproductive surrogacy in Ukraine”, economic sociology_the european electronic newsletter, vol.21, no.3, 2020, pp. 4-10
[3] Lance, D., and Merchant, J.. “Regulating bodies: surrogate motherhood in Ukraine and the United States”, Les Cahiers de la Justice, vol. 2, no. 2, 2016, pp. 231-247.
[4] https://www.dw.com/en/ukraines-surrogacy-industry-leaves-parents-in-limbo/a-45371478
[5] https://www.abc.net.au/foreign/motherland/11432194
[6] https://www.dw.com/en/ukraines-surrogacy-industry-leaves-parents-in-limbo/a-45371478
[7] Lance, D., and Merchant, J.. “Regulating bodies: surrogate motherhood in Ukraine and the United States”, Les Cahiers de la Justice, vol. 2, no. 2, 2016, pp. 231-247.
[8] https://urbanmatter.com/cost-of-the-surrogacy-procedure-in-ukraine/
[9] https://www.lemonde.fr/m-le-mag/article/2022/04/24/des-meres-porteuses-ukrainiennes-prises-au-piege-de-la-guerre_6123417_4500055.html
[10] Lance, D., and Merchant, J.. “Regulating bodies: surrogate motherhood in Ukraine and the United States”, Les Cahiers de la Justice, vol. 2, no. 2, 2016, pp. 231-247.
[11] https://www.dw.com/en/ukraines-surrogacy-industry-leaves-parents-in-limbo/a-45371478
[12] https://successful-parents.com/fr/main/legislation
[13] https://www.myferti.fr/article-fertilite-amp-pma-fiv/14956/FIV_avec_don_d_ovules_en_Ukraine._Choix_de_la_donneuse_anonymat…_Quelques_explications_
[14] ibid
[15] https://www.eggdonationfriends.com/fr/ivf-egg-donation-country-ukraine/
[16] https://www.myferti.fr/article-fertilite-amp-pma-fiv/14956/FIV_avec_don_d_ovules_en_Ukraine._Choix_de_la_donneuse_anonymat…_Quelques_explications_
[17] https://english.elpais.com/elpais/2018/09/27/inenglish/1538051520_476218.html
[18] https://www.journaldunet.com/business/salaire/ukraine/pays-ukr
[19] https://www.abc.net.au/foreign/motherland/11432194
[20] Lance, D., and Merchant, J.. “Regulating bodies: surrogate motherhood in Ukraine and the United States”, Les Cahiers de la Justice, vol. 2, no. 2, 2016, pp. 231-247.
[21] https://www.lapresse.ca/debats/opinions/2022-04-16/recours-aux-meres-porteuses-en-ukraine/chronique-d-un-drame-annonce.php
[22] https://www.abc.net.au/foreign/motherland/11432194
[23] ibid
[24] ibid
[25] https://www.theatlantic.com/health/archive/2022/03/russia-invasion-ukraine-surrogate-family/623327/
[26] https://www.nytimes.com/2020/08/15/world/europe/ukraine-baby-surrogate.html
[27] ibid
[28] ibid
[29] https://donors.biotexcom.com/about-us.html
[30] https://successful-parents.com/main/ukraine
[31] https://www.theatlantic.com/health/archive/2022/03/russia-invasion-ukraine-surrogate-family/623327/
[32] https://www.dalloz-actualite.fr/node/incidences-du-conflit-arme-en-ukraine-sur-gestation-pour-autrui#.YqrgkezP1D-
[33] https://www.senat.fr/questions/base/2022/qSEQ220327407.html
[34] https://indianexpress.com/article/world/ukraines-surrogate-mothers-trapped-between-the-frontlines-7844149/
[35] https://www.abc.net.au/foreign/motherland/11432194
[36] ibid
[37] Maria Dminitrieva webinar
[38] https://www.thenationalnews.com/world/uk-news/2022/04/07/more-than-50-foreign-surrogate-babies-born-in-ukraine-bomb-shelters/
[39] https://www.lemonde.fr/m-le-mag/article/2022/04/24/des-meres-porteuses-ukrainiennes-prises-au-piege-de-la-guerre_6123417_4500055.html
[40] https://www.abc.net.au/foreign/motherland/11432194
[41] https://www.rferl.org/a/nobody-s-child-inside-ukraine-s-controversial-surrogate-adoption-industry/30755463.html
[42] https://www.reuters.com/world/europe/eu-sees-high-risk-child-trafficking-33-million-ukrainians-flee-europe-2022-03-21/
[43] https://artpsc.org/en/2018/07/17/киевскую-клинику-репродукции-biotexcom-обвин/
[44] https://www.dw.com/en/ukraines-surrogacy-industry-leaves-parents-in-limbo/a-45371478
[45] https://www.occrp.org/en/daily/12226-ukrainian-police-in-baby-mill-bust
[46] ibid
[47] ibid