Regulation of legal relationships between the participants of surrogacy programmes in Ukraine
In Ukraine all legal relationships between the participants of surrogacy programmes are regulated by the current legislation and civil law agreements.
Article 48 of Law of Ukraine “Fundamental legislation of Ukraine in Healthcare” allows application of artificial fertilization and embryo transfer in accordance with terms and order set by the Decree of the Ministry of Healthcare of Ukraine № 787 of 09.09.2013. Application of these methods is conducted according to medical indications of an adult woman, provided written consent of her husband, ensuring of a donor’s anonymity and maintenance of medical secrecy. Contraindications and risks of ART application are also designated in this decree of the Ministry of Healthcare of Ukraine.
Provision of Article 38 “Fundamental legislation of Ukraine in Healthcare” determines patient’s freedom to choose doctor and medical institution. Patient can choose where to undergo the procedure either in a public or private medical institution.
In accordance with article 79 of law of Ukraine “Fundamental legislation of Ukraine in Healthcare” medical institutions, citizens and their associations have a right to conclude agreements (contracts) on any type of partnership with foreign legal entities and natural persons, participate in international organizations, conduct foreign economic activity.
Article 123 of Family code of Ukraine regulates the legal issues of origin a child, conceived with application of assisted reproductive technologies (briefly - ART). Paragraph 2 of this article determines that the spouses, who have conceived a child with application of ART, are his/her parents.
Apart from the current legislation the legal relationships of participants of the surrogacy programmes are regulated by civil law agreements. These agreements are concluded in accordance with article 6 of Civil code of Ukraine:
- Parties have a right to conclude an agreement which is not provided for by civil law acts, but corresponds to fundamental civil law.
- Parties have a right to regulate in an agreement, which is provided for by civil law acts, their relationships, which are not regulated by these acts.
- By agreement parties may derogate from the provisions of civil law acts and regulate their relationships on their own reasonable discretion.
- By agreement parties may not derogate from the provisions of civil law acts, if these acts directly regulate it, and in case if obligatoriness of these provisions derives from their content or essence of parties’ relationships.
- Provisions 1, 2, 3 of this article shall be also applied to unilateral powers.
Article 627 of Civil code of Ukraine determines the freedom of agreement. Therefore the agreements between the participants of surrogacy programme completely corresponds the requirements of Ukraine
Legal relationships of a Surrogate, client and medical institution are also regulated by a civil agreement, the subject of which is conduction of procedure of in vitro fertilization, as a specific medical service.
Thus on the basis of norms of the current legislation of Ukraine it is obvious that there are no restrictions in provision of services in the field of extracorporal fertilization by medical institutions apart from medical contraindications of this procedure.
