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Legal assistance of surrogate maternity

In this article, lawyers of  “Aleksey Pukha and Partners” covered the legal aspects of the surrogate maternity procedure, and the place of lawyer in it. We will focus on the legal features of choosing a medical facility, support agency of biological parents, surrogate mother, conducting and negotiation a contract, and settlement of disputes, that arise in this sphere. By reading this article, you will concur with the view that surrogate maternity is not only the combination of medical procedures, but also difficult juridical process required special attention. We will help you to become happy parent with strong nerves and healthy baby. 

Inherent rights of parents as the fundamental human rights 

Everyone had the right to be a parent. The numerous international agreements and national law protect this right. Nevertheless, it so happened that health problems become an impediment to bear and deliver the baby in a natural way. Fast developing medical sciences make it possible to apply new assisted reproductive technologies, and one of them is surrogate maternity. Surrogate maternity, as assisted reproductive technology, defines as a voluntary consent of a woman to bear and deliver the biologically alien baby with the purpose to place in genetic parents care after baby delivering.

Why clients choose Ukraine

Surrogate maternity has many conflicts between medical thoughts as well as between people believes. There is several countries where it is prohibit under the law; amongst them are Austria, Norway, Sweden, France, Italy, Switzerland and Germany. In these states the surrogate procedure not only prohibited, but also will prosecute under the law. For example, in such countries like Belgium, Ireland and Finland law does not regulate surrogate maternity at all.  

Ukraine in turn is one of few, and the most attractive country, where surrogate maternity is not only legal, but also is protected and governed. With certainty could say that existence of the laws in Ukraine that regulate surrogate maternity procedure vectored on:
  • guarantees of the human rights to be parents
  • define the rights and obligations of biological parents
  • define the rights and obligations of surrogate mother
  • define the rights and obligations of medical facility
  • provide public supervision of quality control in medical facilities.  
Moreover, these are only some functions are provided by Ukrainian legislation

It is significant, that The Law of Ukraine “The grounds of Ukrainian health legislation” adopted on 17 May 2014 governs surrogate maternity. In addition, Civil a Family Codes of Ukraine govern some issues in this procedure. Furthermore, The Order of Ministry of Health “About confirmation the Methods of using the assist reproductive procedures’’ No. 787 adopted on 09th September 2013 regulate the procedure of using assist reproductive procedures.

In addition, there are number of legal requirements for medical facilities that provide medical services. The current legal framework of Ukraine establishes legal grounds for applying in Ukraine assisted reproductive technology. Taking into account the abovementioned, we can conclude that these all became the reason for many families from all over the world to choose to Ukraine. 

How to choose a surrogate mother? 

The decision to use a surrogate maternity procedure, like a woman's decision to become a surrogate mother, is a very important step. It is necessary to meet the requirements and adhere the procedures that legislator make fore parents, surrogate mother and clinics, that perform such a procedure, to protect themselves, and to carry out such a procedure. 

According to Ukrainian laws, surrogate mother can only be a woman who meet certain requirements, and they are obligatory. Firstly, the surrogate mother must be an adult person, according to Ukrainian laws such a woman should be 18 years old. Such age connected not only with the medical recommendations for women, but also with the legal terms, as a person can fully act in law, have obligations and bear the legal responsibility. Secondly, the surrogate mother should have medical comment to use assisted reproductive technology and means that surrogacy should not physiologically contraindicate for a woman.

The presence of a medical comment indicates that the surrogate mother has the physical opportunity to take biomaterial, to bear and to deliver a baby. Medical report indicates just the absence of pathology, viruses or other contraindications for pregnancy. Thirdly, the women should deliver a baby, without using any assist reproductive technologies. Another words, woman should give birth to at least one child by natural means.

The above-mentioned requirements are obligatory, and violation of them can incur complex legal negative effects, which may occur as indemnification maternity, or recovering damages, as well as medical consequences e.g. abortion.  

Based on our experience of customer support in surrogate maternity we use the individual approach, but also note that to avoid negative legal consequences, you should pay attention to:
  • remains the surrogate mother in marriage. Because the preparation for surrogacy involves additional legally important documents
  • whether the surrogate maternity is a first experience for a woman
  • the residence and occupation of a surrogate mother.  

It is very important that the Ukrainian legislation declares status, rights, and responsibilities of a surrogate mother, in particular, the right for compensation of the costs associated with pregnancy and the obligations to register newborn child to the biological parents. The existence of surrogate mother`s agreement to contract is the important requirement Such consent must be expressed in writing form, signed knowingly and without coercion, after the medical consultation about the possible complications for her health. In the written statement, the surrogate mother must give the consent and confirm awareness of the possible consequences. The surrogate mother is entitled to withdraw from this agreement before implantation of spouses’ genetic material. The surrogate mother is entitled to payment for these services, as well as for reimbursement of actual costs related to pregnancy and baby delivery.  All these conditions are subject to approval of the surrogate mother and should prescribe in the contract.  

In spite of this, the main responsibilities of the surrogate mother are:
  • to bear the baby
  • to deliver the baby
  • to fosterage the child to spouses who provided their genetic material for bearing the child.

In addition, the important duty is fulfilment all the doctor's instructions, who supervise of her during the pregnancy and during labor. Contract of surrogate maternity. Of course, the most important documents is the contract between the biological parents and the surrogate mother, the so-called contract of surrogate maternity. Flexibility of the Ukrainian contract law allows expressing all negotiated between the biological parents and surrogate mother in contract. Contract fulfills a very important role in the whole procedure of surrogate maternity, as regulate the relationship between the parties clearer and aimed to protect the interests of both sides. In addition, the agreement will help to prevent potential legal risks. The contract must be notarial certified. Many experts believe that the contract may be charged, but this opinion is erroneous, since the contract may not provide for such payment, other words to be free. 

Thus, contract of surrogate maternity may be:
  • Paid (for a fee)
  • Free of charge (without compensation).

While signing the contract it is necessary to pay attention on the provisions of its subject, to speak naturally, on explanation of surrogate maternity procedure. Prices, terms, rights and obligations of the parties, the responsibility of the parties, as well as settlement of the dispute are important question. 

The contract must also include:
  • the conditions of payment of the benefit for the surrogate mother
  • place of residence of the surrogate mother during pregnancy
  • a medical facility, where fertilization will occur
  • the duty of a surrogate mother to provide written consent to record the spouses as child's parents
  • to transfer of the child after the birth to her biological parents
  • the obligation to comply with doctors' recommendations (nutrition, elimination of bad habits, etc.)
  • the conditions of confidentiality
  • the obligation to continue the pregnancy
  • the obligation of the biological parents to adopt a child
  • the obligation to pay a surrogate mother costs associated with the birth of a child, etc.
  • the right of spouses to information about the physical condition and mental state of a surrogate mother, her age, pregnancy
  • recovering damages for breach of contract.

In addition, you should remember that in the contract you could specify other conditions, which in the opinion of the parties can be important. It is also important to specify in the contract the possibility of occurrence of force majeure for each parties under the conditions of the contract. These include: abortion for reasons beyond the control of woman, when all the doctor's orders were carried out; determine the order of formation of the committee to review the conflict and other legal aspects, which can know only those who have experience in this complex process.

«Aleksey Pukha and Partners» lawyers have years of experience working with contracts of surrogate maternity. We develop, analyze, we make changes, comment, advise, we conclude contract surrogate motherhood. We have extensive experience in negotiation of contracts surrogacy biological parents, surrogate mother, medical institutions and agencies. 

Role of medical facilities and agencies in the process of surrogate maternity. Is it better to deal with themselves or to entrust the agency? An important role in the process of surrogate maternity plays a medical facility, which will accompany the biological parents and the surrogate mother. Firstly, the spouses should check whether the institution meets all norms of current legislation, existence of the medical establishment license, appropriate equipment and machinery, and for an institution that practices more than two years - the presence of an accreditation certificate. 

The success or failure achieving the positive result depends on the medical facility. You should pay attention in choosing of it, because medical recommendations will influence on the success in all stages of surrogacy, from the sampling biomaterial to baby delivery. The financial issue is also important, as unnecessary or excessive manipulation can not only harm your health, but also to draw considerable financial costs. Working with the medical establishment base on the contract. This Agreement contains the information and requirements, which the parties must adhere, as well as information about the costs and procedure for the provision of medical services. 

Signing the contract is not common formal operation. In this case, the contract with a medical institution is part of the legal documentation and aimed to the use of assisted reproductive technologies in the complex procedure of surrogate maternity. Such contracts have their own terms and conditions that should be agreed by clients in each individual case. Contract with medical facilities may be bilateral or multilateral, which can complicate the design of such document, and work with the agency as a whole. 

Recruiting agency surrogate mothers has special role in this process. It should firstly be noted that the agency not subject to the same requirements as a medical facility. The agency operates under the general principles of the Ukrainian legislation. Working with the agency you should pay attention at professionally express of its structure. You should be sure whether the agency has the necessary staff, what their qualifications are. The presence of the registry of surrogate mothers also is important. Biological parents should have the right to choose a surrogate mother. With this purpose, the agency should have a registry of surrogate mothers. It looks like a filing cabinet in which the agency monitors the health of their surrogate mothers, their way of life and experience. Customers should base their work solely with the agency under the contract. Often agencies impose work without a contract. This practice may result in negative legal consequences themselves. 

The role of the agency is to perform these functions:
  • find a surrogate mother
  • assistance in the selection of a surrogate mother
  • support clients in the provision medical services
  • accompanied by a surrogate mother before and during pregnancy
  • accompanied by a surrogate mother when receiving services from the medical establishment
  • observation of a surrogate mother
  • the organization of labor.

These functions are not exhausting, but each agency should have everything you need, that would give full support to its customers. Feature of Ukrainian agencies is that they often do not fully perform the function of the agency and require assistance and advice from outside. These agencies not presented separately and independently and existing participants in the activities developed with internal and external communications. As a rule, these agencies present as a small staff of employees, and are not capable to provide high-quality level services to solve all the problems appear surrogate maternity. It requires constant outside consultants, lawyers and medical staff. 

«Aleksey Pukha and Partners» recommends cooperating with the agency solely under the contract. Such contract may provide minimal involvement of biological parents in the process of surrogate motherhood. Customers choose «Aleksey Pukha and Partners» is the only law firm that has full -team lawyers specializing in legal support of surrogate maternity procedure. The process of surrogate maternity requires special attention of lawyers, legal certainty, and reliable protection of the interests of our clients. We guarantee private policy and provide full range of legal support of surrogate maternity procedure in Ukraine.

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