Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.40 N° 73
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Diciembre
2022
Recibido el 15/03/2022 Aceptado el 02/06/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 40, Nº 73 (2022), 71-89
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Problems of Concluding Surrogacy
Agreements: Practice of Ukraine and the EU
DOI: https://doi.org/10.46398/cuestpol.4073.03
Tetiana Y. Tarasevych *
Yaroslav Y. Melnyk **
Mariіa B. Melnyk ***
Hanna L. Krushelnytska ****
Halyna H. Hrytsenko *****
Abstract
The aim of the article was to identify and analyses typical
problems of concluding surrogacy agreements in the context of
supranational challenges and pandemics. This aim was achieved
with a view to the peculiarities of the legal status of surrogacy
in leading European countries. Methods of observation,
comparative legal analysis and legal simulation became the
basic methodological tools. The study resulted in grouping of the
European countries according to the state of surrogacy legalization, as well
as outlining the leading problems of concluding and executing surrogacy
agreements. It was stated that women in current realities are becoming
commercial gestational carriers, and are not acting in the best interests
of the child. The study proves a high degree of levelling of the terms of
surrogacy agreements in Ukraine, which requires immediate legislator’s
response. It is argued that the approach to altruistic surrogacy has the
potential to eradicate commercial agreements in a cross-border context.
Further author’s research will focus on establishing a unied and optimally
eective international approach to solving problems of concluding
surrogacy agreements.
Keywords: altruistic motherhood; bodily autonomy; gestational carrier;
innovative technologies; reproductive medicine.
* Doctor of Law, Associate Professor of the Public Law Department, Vinnytsia Mykhailo Kotsiubynskyi
State Pedagogical University, Vinnytsia, Ukraine. ORCID ID: https://orcid.org/0000-0002-3860-9909
** Doctor of Law, Senior Researcher of the Institute of Law of Taras Shevchenko National University of
Kyiv, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-1937-6772
*** PhD in Law, Assistant of the Department of Labor Law and Social Security Law, Institute of Law of
Taras Shevchenko National University of Kyiv, Kyiv, Ukraine. ORCID ID: http://orcid.org/0000-0002-
1581-335X
**** PhD in Law, Senior Lecturer at the Department of Civil Law Disciplines, National Academy of Internal
Aairs, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-9934-6973
***** PhD in Law, Associate Professor at the Department of Civil, Commercial and Financial Law, Poltava
Law Institute of Yaroslav Mudryi National Law University, Kharkiv, Ukraine. ORCID ID: https://orcid.
org/0000-0003-3346-818X
72
Tetiana Y. Tarasevych, Yaroslav Y. Melnyk, Mariіa B. Melnyk, Hanna L. Krushelnytska y
Halyna H. Hrytsenko
Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
Problemas de la celebración de acuerdos de
subrogación: práctica de Ucrania y la Unión europea
Resumen
El objetivo del artículo fue identicar los problemas típicos de celebrar
acuerdos de gestación subrogada en el contexto de desafíos supranacionales
y pandemias. Este objetivo se logró teniendo en cuenta las peculiaridades del
estatus legal de la gestación subrogada en los principales países europeos.
Métodos de observación, análisis jurídico comparado y simulación
jurídica se convirtieron en las herramientas metodológicas básicas para la
investigación. El estudio resultó en la agrupación de los países europeos
según el estado de legalización de la gestación subrogada, así como en la
descripción de los principales problemas para concluir y ejecutar acuerdos
de gestación subrogada. Se armó que las mujeres en las realidades actuales
se están convirtiendo en portadoras gestacionales comerciales y no están
actuando en el mejor interés del niño. El estudio demuestra además un
alto grado de nivelación de los términos de los acuerdos de subrogación
en Ucrania, lo que requiere una respuesta inmediata del legislador. Se
argumenta que el enfoque de la subrogación altruista tiene el potencial
de erradicar los acuerdos comerciales en un contexto transfronterizo. La
investigación adicional de los autores se centrará en establecer un enfoque
internacional unicado y óptimamente ecaz para resolver los problemas
de celebración de acuerdos de subrogación.
Palabras clave: maternidad altruista; autonomía corporal; portadora
gestacional; tecnologías innovadoras; medicina
reproductiva.
Introduction
Reproductive function with the use of medical technologies is a trend
characterized by striking roots and continuous development in society.
Increasingly limited opportunities for international adoption have
contributed to the spread of international surrogacy. In this regard, a
wide range of methods are available today for infertile couples, which
are important in supporting natural fertilization (Wennberg, 2020). If
surrogacy is legal in any country, citizens have the right to travel abroad
for a variety of reasons: to gain access to surrogacy with more innovative
infertility treatment, lower costs, the ability to use genetic engineering
using specic genetic materials (Caldwell, 2019).
Cross-border gestational surrogacy may raise some legal issues regarding
the return of these citizens to their country with children conceived illegally
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CUESTIONES POLÍTICAS
Vol. 40 Nº 73 (2022): 71-89
or fraudulently. Surrogacy also raises important ethical issues that make
it dicult to solve legal problems in case of international surrogacy. This
is a major obstacle to achieving a common approach and a minimum
international legal framework (González, 2020).
Unfortunately, international surrogacy is increasingly positioning
itself as a negative form of cross-border reproductive assistance, so-called
“reproductive tourism”. The international community recognize that it is
currently impossible to monitor medical procedures, professional practices,
ethical standards, the free consent of a surrogate mother or the independent
counselling used in the framework of an international surrogacy agreement.
Prots or intermediaries of any kind automatically make international
surrogacy agreements ethically questionable.
Surrogacy is not always viewed from a negative perspective. Surrogacy
can be traditional or gestational: in the rst case, the surrogate mother
uses her own egg and undergoes articial insemination with the sperm of
the intended father or donor. Gestational surrogacy instead relies on an
embryo created by in vitro fertilization (IVF) and implanted in the surrogate
uterus. A child born as a result of gestational surrogacy has no genetic link
to the surrogate mother. The intended parents may be heterosexual or
homosexual couples, or even single. In gestational surrogacy programmes,
the incidence of clinical pregnancies with embryo transfer ranges from 19
to 33%, with 30 to 70% of couples who have reached clinical pregnancy
becoming parents (Piersanti et al., 2021).
However, critics believe that variable methods, including surrogacy,
can lead to the transformation of human life into the commodity and
exploitation of women, making surrogacy highly commercial and bioethically
controversial (Bertelli et al., 2019). These methods, taken separately,
provide fertilization, but when used together can lead to the emergence of
real “children’s factories”, which already exist in poor countries and mostly
operate illegally.
Litigation over the conclusion, interpretation and legal consequences
of surrogacy agreements is currently on the rise in many countries. When
deciding on surrogacy, courts tend to prefer several factors that often conict
with each other: the best interests of the child, the rights of the gestational
mother, the genetic link between the child and the genetic father, or the
couple who signed the surrogacy agreement. There is no consensus in the
legal or ethical community as to which of these factors should be a priority
(González, 2020).
In today’s world, there are dierent national approaches, from
permissive to prohibitive, from regulatory to non-regulatory. The most
liberal approaches are based on the right to start a family and women’s
autonomy. Most prohibitive approaches reect ethical or religious
74
Tetiana Y. Tarasevych, Yaroslav Y. Melnyk, Mariіa B. Melnyk, Hanna L. Krushelnytska y
Halyna H. Hrytsenko
Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
arguments against potential and documented methods of exploitation,
especially when reproduced by third parties. Although case law is evolving
in terms of children’s rights, any international instruments do not directly
address this issue, leaving dierent interpretations open.
The Surrogacy Agreement is a long and complex legal document that
includes a wide range of legal remedies, contingencies and guarantees
for both surrogate mothers and prospective parents, as well as protecting
the child’s well-being before and after birth. It is important to emphasize
that the special medical component of such a legal relationship must also
be taken into account in detail. Therefore, there is a need for in-depth
bioethical and legal research to reform legislation on the combined use of
assisted reproductive technologies.
Given the above, the aim of the article was to identify and reveal current
issues of concluding surrogacy agreements in Ukraine and EU countries.
This aim involved the following objectives: 1) identify current trends that
aect the procedure for concluding surrogacy agreements; 2) reveal the
state of legal regulation of surrogacy in Ukraine and EU countries; 3)
outline the prospects of legal innovations in the legal eld of Ukraine in the
studied area.
1. Materials and Methods
The research procedure is presented in Figure 1. In turn, the sequence
of scientic research was determined by the leading areas of scientic and
legal research on the selected topic. Particular attention was paid to the
debatable rules of law in the eld under study. Variable approaches to the
legalization of surrogacy have revealed common mistakes in the conclusion
and execution surrogacy agreements in this area in dierent countries.
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CUESTIONES POLÍTICAS
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Figure 1: Schematic representation of the research on the
subject of the article.
The study was based on a set of general and special methods, scientic
approaches and theories, which found their detailed consideration at each
stage of scientic research. The main research methods were observation
and comparative legal analysis. The specied methodological tools helped
to reveal the main problems of realization of the rights and lawful interests
of the parties to the contractual legal relations in the eld of surrogacy;
substantiate the reasonability of introduction of new medical procedures in
a complex with the corresponding legislative innovations; it is proposed to
nd a unied international legal approach to the problems of contractual
relations in the research area and to ensure the best interests of the child.
The comparative legal method was also used in the comparative analysis
of current national legal norms of Ukraine in the eld of surrogacy with legal
systems and the latest scientic developments of other countries in order
to identify positive legislative practice, which is appropriate and possible
for testing in our country in view of the peculiarities of the domestic legal
system.
In turn, the dialectical method of cognition of phenomena and processes
allowed determining the state, directions and prospects of development
76
Tetiana Y. Tarasevych, Yaroslav Y. Melnyk, Mariіa B. Melnyk, Hanna L. Krushelnytska y
Halyna H. Hrytsenko
Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
of research and legislative developments in the eld of legal regulation
of the institution of surrogacy in Ukraine and the European Union. The
historical and legal method was applied during the study of the genesis of
the development of legislation governing the use of assisted reproductive
technologies in Ukraine and foreign countries; methods of analysis and
synthesis were used to establish the nature and content of the institution
of surrogacy.
Besides, these methods allowed outlining the variability of legal
structures of agreements. Conclusions were drawn in accordance with the
aim of the study through the dogmatic method. Taking into account the
experience of foreign countries, the method of analogy allowed concluding
that it is necessary to adopt new regulations in Ukraine. Forecasting and
proposals for legislative innovations were realized through logical methods
of knowledge and the method of legal simulation.
The theoretical and methodological background of the author’s scientic
research was the works of leading scholars and practitioners in the eld of
surrogacy and contract law. Considerable attention was paid to the results of
comparative studies of the legal status of surrogacy in various jurisdictions,
previously conducted by representatives of the doctrine. Drawing author’s
conclusions was facilitated by the analysis of primary sources of legislative,
regulatory acts and international documents on the subject of the article.
A total of thirty-three sources have been tested in the article. Regulatory-
semantic methods, as well as other scientic tools were used in formulating
legislative proposals. The set of methods, techniques and tools determined
by the aim of the article and the research objectives helped to reveal the
issues outlined in the article as much as possible.
2. Results
According to the 2019 Council of Europe Report: Anonymous Sperm and
Oocyte Donation: Balancing the Rights of Parents, Donors and Children,
about 8 million children were born using assisted reproductive technologies
(Council of Europe, 2019). The global COVID-19 pandemic has slowed the
growth of surrogacy and reduced the number of international surrogacy
agreements concluded in 2020 due to restrictions on foreign border
crossings imposed and implemented by most European legislators. It is
believed that this trend will continue until the end of the global pandemic
and is expected to end with the lifting of travel restrictions. Prior to the
introduction of coronavirus restrictions, surrogacy was considered a global
emerging market. According to the forecasts of GlobeNewswire (2019), by
2025 the cash ow in the eld of surrogacy “will exceed $ 27.5 milliard”.
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At the same time, not all surrogacy contracts are paid. Altruistic surrogacy
refers to those agreements where the surrogate mother does not receive
monetary compensation. In most altruistic agreements, the surrogate
mother is a close relative of the probable parents. In turn, the commercial
surrogacy agreement provides a surrogate mother’s compensation package
tailored to the unique situation of each surrogate mother. The surrogate
compensation agreement details the pre-determined plan under which the
intended parents agree to cover medical expenses, travel expenses, court
costs and other potential expenses that may arise during the trip. The
surrogacy agreement must include the provisions of regulatory law, as it
is necessary to take into account the legality of surrogacy in a particular
country.
It is advisable to refer to the general terms and conditions of the
agreements in the research area. In particular, such an agreement should
detail all aspects of conception, including whose gametes are used, how
many embryos will be transferred in one attempt, how many attempts
will be made to implant embryos, whether embryos used will be fresh or
frozen, any genetic research, and similar details. It is especially important
that any contract with a surrogate mother stipulates the legal maternity and
paternity. It should be ensured that the intended parents are recognized
as legal parents, releasing the surrogate mother (and her spouse, if any) of
all rights and responsibilities with respect to the child. The agreement also
guarantees that parents will receive immediate custody of the child after
birth.
In order to properly protect the interests of the unborn child, the
surrogacy agreement must provide for an emergency plan. For example,
if the parents die or become disabled before the full fullment of the terms
of the agreement. Intended parents must provide evidence that they are in
any case capable of fullling their nancial obligations under the contract
and securing the child’s future legal status. This includes the appointment
of guardians for the child and custodians to ensure that the surrogacy
agreement is concluded, executed and all costs and obligations of surrogacy
are met.
The contract must specify the procedure if any of the parties involved
divorces or marries before the end of the agreement. To avoid potential
problems, surrogacy agreements generally prohibit both prospective
parents and surrogate mothers from performing any of these actions before
the child is born. Parents are responsible for obtaining health insurance
for their child, and usually pay any insurance premiums, surcharges or
uncovered medical expenses related to pregnancy and childbirth. The
surrogate mother should review her own health insurance policy before
signing the agreement to make sure that the policy does not preclude her
from participating in surrogacy. The agreement must include information
78
Tetiana Y. Tarasevych, Yaroslav Y. Melnyk, Mariіa B. Melnyk, Hanna L. Krushelnytska y
Halyna H. Hrytsenko
Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
on the amounts that can be paid to the surrogate mother and the procedure
for such payments.
The agreement between the parties must also provide for legal
consequences in the event of a miscarriage or abortion. According to the
current practice, the decision to try again in this case is made either with
the consent of the parties, or, more often, remains at the discretion of the
surrogate mother. In the tragic case of a child dying at birth or shortly
thereafter, custody of the remains is usually passed on to the prospective
parents who arrange the funeral. The child’s name should be included in the
agreement, along with instructions for the hospital on how the names of the
prospective parents will be listed on the birth certicate. Given the above,
it is advisable to summarize the leading standard terms of the surrogacy
agreement (Figure 2).
Figure 2: Leading typical essential terms of the contract in the
eld of surrogacy in a cross-border context summarized by the
author based on the analysis of empirical data.
Let’s turn to the practice and problems of concluding relevant
agreements in dierent jurisdictions. The implementation of surrogacy
procedure in Ukraine is characterized by a number of features: there must
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be a commercial surrogacy agreement, which provides for the payment of a
specic amount of fee, which does not contain restrictions on the amount of
remuneration; there is no legislative provision for obtaining a permit from
the guardianship and wardship authority (as in the case of adoption). Upon
the birth of a child, the surrogate mother signs a permit to transfer the child
to the biological parents.
In this case, there is no need to consider the case in court, all legal
relations are governed primarily by Article 123 of the Family Code of
Ukraine (Verkhovna Rada of Ukraine, 2002) and the relevant agreement.
The names of the biological parents are entered in the birth certicate. The
parental rights to the child fully belong to the genetic mother and father. A
surrogate mother in Ukraine should not be genetically related to the unborn
child and is considered only as a “gestational carrier”.
Besides, the basis of legal regulation in Ukraine is the Law of Ukraine
“On Fundamentals of Health Care Legislation” (Verkhovna Rada of Ukraine,
1992) and the Procedure for the Use of Assisted Reproductive Technologies
in Ukraine, approved by the Order of the Ministry of Health of Ukraine
No. 787 of 09.09.2013 (Ministry of Health of Ukraine, 2013). Therefore,
the current legislation of Ukraine regulates the possibility of implementing
assisted reproductive technologies, in this case — surrogacy. Ukraine has
no obligation to test the ability of expectant parents to legalize child status
in countries where surrogacy is prohibited. Unfortunately, minimizing legal
risks is a matter for biological parents alone, not for medical clinics and
agencies that provide this procedure.
Legal relations arise between the surrogate mother, potential parents
and medical organizations, and are governed by the relevant agreements
between them. Two types of agreements are concluded for the purpose
of legal support in this case: between the genetic parents and the agency
(medical institution), and between the genetic parents and the surrogate
mother.
The main terms of the agreement between the agency (medical
institution) and the genetic parents are not clearly established by law.
As a result, those agreements are concluded in a simple written form
provided by the agency, without notarization. There is a current problem of
contractual regulation of surrogacy in Ukraine. Paragraph 6.11 of Order No.
787 (Ministry of Health of Ukraine, 2013) stipulates that such an agreement
is not subject to mandatory notarization, but a notarized copy of the written
general agreement between the surrogate mother and the woman (wife) or
spouses.
In contrast, in most EU countries, the principle of family law “mater
semper certa est” acts as a legal barrier to surrogacy agreements. According
to this principle, a surrogate mother is also considered a legitimate mother
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Tetiana Y. Tarasevych, Yaroslav Y. Melnyk, Mariіa B. Melnyk, Hanna L. Krushelnytska y
Halyna H. Hrytsenko
Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
because she gives birth to a child. Therefore, the future parents must go
to court if they want to be appointed legal parents of this child. The main
purpose of these prohibitive and restrictive laws is to protect the rights,
dignity and well-being of both surrogate mothers and future children.
In parallel with the increasing use of surrogacy, EU countries have
decided to allow surrogacy only in certain cases: for example, Greece (Masry,
2003), Portugal (VLex, 2016) accept an altruistic model only. However, in
2019, the Portuguese Constitutional Court repealed a number of provisions
of a law passed by parliament on suspicion of violating constitutional
principles and rights in the eld of family law. Some countries have decided
to explicitly prohibit surrogacy, such as Germany (Ministry of Justice of
Germany, 1990) and Spain (Instituto Bernabeu, 2007) or even consider it a
crime, such as Article 227-13 of the Penal Code of France (Legislationline,
1992).
Surrogacy is prohibited by law in Spain, so the only option available
to prospective parents is to consider going to another country to complete
the procedure. However, individuals and couples can start the treatment
process in Spain in a private clinic and arrange for their gametes to be
transferred to the country where the surrogacy process will begin. The
cost of surrogacy will depend on the country of destination and whether
treatment is started in Spain (Statista, 2019).
In countries where surrogacy is permitted, there may be specic
legislation governing it (Legislation.gov.uk, 1985), or surrogacy is permitted
without any specic law, applying the principle that “everything that is
not forbidden is allowed” (for example, Belgium and the Netherlands). In
practice, cases of surrogacy still exist (this is possible in some hospitals,
under certain conditions and under strict control), for example in Belgium.
The surrogacy agreement is considered invalid, so the surrogate mother
(whether or not she is the genetic mother of the child) cannot be forced to
give up the child after birth.
Therefore, the parental relationship between the child and the
prospective parents must be established through adoption, as the surrogate
mother’s name is recorded on the birth certicate and the surrogate
mother is considered the legal mother. Belgian courts generally agree to
grant adoption in such cases if it is in the best interests of the child and
provided that surrogacy has not been rewarded. If the surrogate mother is
not married, the prospective father may recognize the child if the surrogate
mother agrees. In this case, only the prospective mother should adopt the
child. When surrogacy is legal (altruistic or commercial), it can be restricted
for citizens or legal residents (for example, in Portugal). Therefore, a
conditional list of countries for the implementation of surrogacy procedures
can be provided (Table 1).
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Table 1. Surrogacy in the world — the distribution by the
state of implementation (summarized by the author based
on the results of observation over the transformation of legal
regulation).
Distribution of countries by trends in the implementation of
surrogacy procedures
Altruistic and
commercial surrogacy
is prohibited
Altruistic surrogacy is
allowed Altruistic and
commercial
surrogacy is allowed
• France;
• Germany;
• Italy;
• Spain;
• Portugal;
• Lithuania
• Netherlands (com-
mercial surrogacy
is prohibited)
• Belgium (commer-
cial surrogacy is
illegal)
• Denmark;
• Greece;
• Czech Republic;
• United Kingdom
(commercial sur-
rogacy is prohibit-
ed)
• Ukraine;
• Russian Federa-
tion.
It should be emphasized that most surrogacy agreements are
international agreements. An international agreement in the eld of study is
an agreement that includes more than one country of permanent residence,
citizenship or place of permanent residence of prospective parents, donors
and pregnant mothers. Such arrangements have emerged over the past
few decades, primarily due to the evolution of the “family concept”, which
has shifted from traditional heterosexual couples to single parents, foster
families, the legalization of extramarital relationships or same-sex couples.
Second, this trend is determined by the increase of international mobility
of people as a result of globalization. Even in situations that do not allow
such parents/couples to have children on their own, they are still willing
to become parents and therefore resort to surrogacy, which has become an
alternative to adoption.
Legal problems usually begin when a person or couple returns to their
country with a surrogate child and tries to be recognized as the child’s
parents. Problems may arise before returning to their country. For example,
a baby needs to obtain a passport, and their own embassy may not issue the
necessary documents because they may have evidence that the child was
born as a result of fraud. For the most part, children’s citizenship depends
on the nationality of their parents (ius sanguinis; for example, in Spain, the
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Tetiana Y. Tarasevych, Yaroslav Y. Melnyk, Mariіa B. Melnyk, Hanna L. Krushelnytska y
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Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
rst paragraph of Article 17 of the Civil Code states that a child is Spanish if
at least one parent is a Spanish citizen) (Ministry of Justice of Spain, 2013).
At the same time, in the case of surrogacy, the issuance of a passport may
be denied because paternity and maternity are not recognized, so the child
cannot obtain the citizenship of his/her parents. Depending on national
law, legal recognition of a child as a person indicating his/her origin may
be required; in some cases, this may be required when a child needs to be
enrolled in school, vaccinated or when a fee must be paid to the national
health system. Besides, the authorities of the parents’ country of origin can
intervene in a wide range of legal issues to recognize the legal status of a
child belonging to a married couple at any time.
Problems can also arise when the probable parents are a same-sex
couple or a single father. Surrogacy may be considered the only way to have
a child, but national parental law may not allow same-sex couples or single
parents to have children. When they return home, they may face certain
legal diculties in recognizing them as parents. Complications can arise
when probable parents travel to another country to seek surrogacy, even
though surrogacy is legal in the country of origin. This may apply to couples
or single people who do not comply with the legal requirements of their
national law. Upon returning home, these parents will face the same legal
challenges in trying to be recognized as the child’s legal parents.
Eventually, problems may arise if international surrogacy has taken
place in a country where there is no special legislation on such procedures.
Therefore, if there are any problems, such as complications during
pregnancy, lack of agreement between the prospective parents and the
surrogate mother, the surrogate mother’s refusal to transfer the child after
birth, divorce of the prospective parents during the process, or alleged
change of parental views after pregnancy, there may be no legal provisions
governing such cases.
However, a judge can always provide a legal solution to these potentially
problematic situations by applying existing national rules of origin and
contracts. The outlined problems signicantly increase uncertainty and
contribute to the negative attitude towards surrogacy. The leading problems
during and after the conclusion of the surrogacy agreement were identied
as a result of the scientic research (Figure 3).
There is little consensus among European states on the legal regime of
surrogacy in general and transnational commercial surrogacy in particular.
In this context, the case law of the European Court of Human Rights
(ECHR) is particularly important in this regard, as it provides a common
background for the legal regime of transnational commercial surrogacy
in Europe. In 2010, the Hague Conference on Private International Law
launched a project on parenthood and surrogacy.
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In March 2019, a group of experts decided to develop a convention “on
the recognition of foreign judgments on legal parentage” and “a separate
protocol on the recognition of foreign judgments on legal parentage,
recognition of the implications of an international surrogacy agreement.”
The group will meet in 2022 again to nalize the report it will present to
the General Aairs and Policy Council in 2023 (Experts’ Group on the
Parentage, Surrogacy Project Chair of the Experts’ Group on the Parentage
& Surrogacy Project, 2021).
Figure 3: List of conditional problems in the eld of
implementation of the terms of the surrogacy agreement
grouped by the author.
In early 2021, a group of experts in international law and human
rights adopted the Verona Principles for the Protection of the Rights of
the Child Born through Surrogacy (International Social Service, 2021).
These Principles are intended to inspire and guide legislative, political and
practical reforms to protect the rights of children born through surrogacy.
The principles were created in anticipation of further evolving eorts, in
the broader human rights framework. The Verona Principles have received
the support of the UN Committee on the Rights of the Child, they are
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Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
recognized as an important contribution to the development of guidelines
on the protection of the rights of children born through surrogacy.
3. Discussion
Research has shown that surrogacy is a procedure that raises deep
ethical and religious issues and considerations. Usually, a person who
wants to have a child assumes the medical risks of pregnancy, while the
surrogate mother assumes the risk in surrogacy agreements. As a result,
the state is obliged to ensure the practical implementation of the necessary
rules and conduct long-term monitoring of all participants in the procedure
to ensure that neither party suers long-term harm (Ellenbogen, Feldberg
& Lokshin, 2021). The dynamics associated with surrogacy agreements
emphasize that the altruistic element, that is helping couples with fertility
problems to achieve parental rights, is the driving force for most surrogate
mothers (Piersanti et al., 2021).
It should also be emphasized that a simple ban on commercial surrogacy
does not solve the main problems: the ban could lead to the development of
underground businesses, which is likely to jeopardize and harm the interests
and rights of women who need to improve their nancial conditions through
illegal and disguised surrogacy (Rudrappa, 2018).
Besides, the use of altruistic surrogacy as the only legal alternative
may contribute to the absolute deregulation of surrogacy, which in turn
may lead to increased exploitation of women. In this case, the adoption of
labour legislation aimed at protecting women who have decided to become
surrogate mothers and considering them valuable and indispensable
elements of the labour force could be an eective way to combat the
exploitation of surrogacy (Stuvøy, 2018).
As a result of scientic research, it was stated that there is a problem of
“physical autonomy” of the surrogate mother in all surrogacy agreements,
which is mostly not taken into account in the discussion of surrogacy. So, the
preferences of prospective parents are potentially formed. In this case, the
best way to protect women’s independence in surrogacy is to consider each
case individually and give women the right to become surrogate mothers
only in case of no social pressure and coercion of all kinds (Gustafsson,
2019).
It can be concluded that reproductive medicine in Ukraine is not properly
reected in legislation, as there is no systemic approach to this regulation.
Adoption of a high-quality legal act that will regulate and control the eld
of assisted reproductive technologies, including surrogacy, will be able to
protect the rights of all participants in the process, to eliminate the relevant
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abuses. A number of scholars conclude that it is necessary to use a notarized
form of surrogacy agreement, which will signicantly reduce the risk of
adverse consequences for the parties and the criminal component in this
segment of the service (Andrushchenko et al., 2021).
Existing international legal instruments regulate some problems of
international surrogacy, which cannot properly ensure the implementation
of these issues. The ECHR has developed several decisions on international
surrogacy, for example, reproductive tourism or recommendations on how
to recognize a child-parent relationship in surrogacy with a prospective
father who is not the child’s biological father, but it is necessary to develop
a good international legal instrument now. Prompt response in relevant
cases is particularly relevant in this case.
The Hague Conference on Private International Law is currently
developing such a protocol. However, there are a number of issues that also
need to be addressed by this protocol. Scholars insist that the protocol should
also provide a body that will have the right to monitor the implementation
of this legal initiative and have the authority to resolve disputes between
the parties to international surrogacy (Maydanyk & Moskalenko, 2020).
Conclusion
Given the increasing number of couples who cannot conceive on their
own, along with the latest technological innovations, and the largely
altruistic nature of surrogacy, the practice of contracting in the eld
under study is growing. However, the expediency of strict precautionary
measures to protect both the rights and interests of the gestational carrier
and the alleged parent(s) is urgent. Therefore, the state, which implements
surrogacy procedures, is obliged to legalize clear rules that will ensure
the legal relations with the legal balance of interests of the parties when
concluding agreements in this area.
A detailed study of dierent national approaches to solving the problem
of surrogacy shows the ambiguity of the positions of legislators. In some
countries surrogacy is completely prohibited, while in some countries only
commercial agreements are prohibited, in others — the use of assisted
reproductive technologies is limited in general. However, surrogacy is
largely legalized by states, including the EU and Ukraine. Therefore,
the comparative analysis of the basics of legal regulation of surrogacy
agreements is of particular importance within the framework of legal
science.
The research found that Ukraine is currently considered the most
convenient and liberal country for commercial surrogacy, which diers
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Problems of Concluding Surrogacy Agreements: Practice of Ukraine and the EU
signicantly from EU policy in the eld of altruistic surrogacy. Therefore, it
is reasonable to adopt a detailed regulatory act on the territory of Ukraine
which will be able to regulate both legal relations in the eld of surrogacy
and the legal consequences of concluding agreements in this area in a cross-
border context.
Given the need for legislative transformations both at the national level
of Ukraine and EU member states, and in the international legal eld,
further research will be conducted in order to make a comparative legal
analysis of relevant innovations.
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