International fertility tourism: the potential for stateless children in cross-border commercial surrogacy arrangements.

• Author: Kindregan, Charles P.
• Position: VI. The Law in Nations That Promote International Surrogacy Arrangements B. Ukraine through Conclusion, with footnotes, p. 604-626

Ukraine

The Ukraine has rapidly developed into a popular destination for foreigner intended parents seeking to have children through international surrogacy arrangements. However, there are no official statistics on surrogacy in the Ukraine, due to the absence of any regulatory body monitoring the growth of the industry, (325) as well as the refusal of many clinics to disclose statistics based on the medical confidentiality principle. (326) In spite of this, one news source estimated that in 2010, there were roughly 120 successful surrogate pregnancies, many of them resulting in multiple births. To more accurately qualify the data, the news source suggested that this figure is likely to be as much as thirty percent higher because private surrogacy agencies are not required to report their data. Further exhibiting the rapid growth of the surrogacy industry in the Ukraine is the estimate that the number of surrogacy births has been increasing by a staggering twenty percent a year, and could rise by up to forty percent in 2011 with the opening of several large clinics. (327) With regard to foreign clients, in 2007 the vice president of the Association of Reproductive Medicine of Ukraine found that married couples from abroad make up about fifty percent of the total number of surrogacy cycles (328). Just three years later in 2011, clinics reported to a Ukrainian news source that they have seen the number of foreign clients double every year. (329)

The Ukraine's emergence as a popular destination for commercial surrogacy can be attributed in large part to the country's lenient surrogacy laws which are heavily marketed as favoring intended parents as well as the comparatively low costs. Additional reasons are the quality medical treatment at authorized medical institutions using accepted European medical standards. The lower social stigma regarding surrogacy in the Ukraine due to the apparent availability and willingness of surrogate mothers is also attractive to foreign intended parents. (330) This lower social stigma is in sharp contrast to the highly stigmatized surrogacy industry in India because of the belief that it involves the bodies of poor women and is associated with the "immoral" commercialization of motherhood. (331)

Additionally, intended parents may be drawn to the Ukraine because uniquely, if the intended parents choose to use donor egg or sperm, clinics are more than willing to show photographs and provide detailed information on not only of the donor, but their relatives as well. For some, the absence of restrictions on genetic testing or sex selection on pre-implantation embryos, which is generally prohibited in most countries, may also impact the attractiveness of surrogacy in the Ukraine for prospective parents.

It would be extremely difficult to dispute that the comparatively low prices in the Ukraine for surrogacy services is one of major reasons foreign couples seeking to have a child via surrogacy are attracted to the Ukraine. Having a child through a surrogate in the Ukraine generally costs between USD30,000 and USD45,000. (332) As noted earlier, the United States is generally a favorable destination for non-residents, (333) but surrogacy in the United States may cost up to USD100,000 and the Ukraine can allegedly offer all the services that the United States does, just at a three to four times cheaper rate. (334)

Aside from the comparatively low cost, one of the main reasons Ukraine has become such a popular surrogacy destination, and is so appealing to foreign intended parents, is the liberal laws and policies which tend to favor intended parents. (335) The belief that Ukrainian law favors intended parents is supported by the fact that under Ukrainian law, only the intended parents have recognized rights (336) and the law does not mention any rights that the surrogate may have. (337) The Ukrainian law's focus is to "protect the family and the child." (338)

Unlike the uncertainties of legal parentage in countries like India, Ukrainian law recognizes the intended parents as the sole legal parents of the child born through a Ukrainian surrogacy agreement upon birth. The specific provision in the Ukrainian Family Code that permits intended parents in a surrogacy agreement to become the sole legal parents of the resulting child is the provision which states, "if an ovum conceived by spouses (man and woman) is implanted to another woman, the spouses shall be the parents of the child." (339) Upon the birth of the child, the surrogate provides notarized written consent for registration of the spouses as the legal parents (340) which has the effect of extinguishing any parental rights, responsibilities or obligations of the surrogate and her husband if she is married with regard to the child. Moreover, the applicants are registered on the child's birth certificate as the parents for all purposes.

Although the surrogacy laws are very liberal in comparison to many other countries, Ukrainian law does have conditions on who may enter a Ukrainian surrogacy agreement. In order to enter a surrogacy arrangement in the Ukraine, the commissioning couple must be a married heterosexual couple and there must be a medical need for the couple entering the surrogacy arrangement. Moreover, under the Ukrainian surrogacy law, the child must be genetically related to one of the spouses. (341)

The condition that requires intended parents to be a married heterosexual couple completely excludes homosexual couples from entering surrogacy arrangements in Ukraine. According to Article 21 of the Family Code of Ukraine, the family is defined as solely between a man and a woman who live together, who are connected by common everyday life, and who have mutual rights and duties. There is no provision for gay marriage or civil partnership in Ukrainian legislation. (342) However, as the case law below illustrates, despite this provision some homosexual couples have been able to successfully have children through Ukrainian surrogacy arrangements which calls into question the enforceability of the Ukrainian conditions to enter into such an arrangement.

There are some gaps in the Ukrainian surrogacy law that many people may be unaware of, but could pose potential problems for intended parents. First, Ukrainian law is silent as to the necessity of signing a surrogacy agreement, its form, content and the parties' rights and responsibilities to it. This gap in the law allows the terms of the surrogacy agreement to be agreed upon by mutual consent between the surrogate and the intended parents which could be risky for both parties. (343) Another gap in the law is that there is no requirement of notarial certification of the surrogacy agreement which, under Ukrainian law, would guarantee the validity of the agreement. The absence of the notarial certification does not invalidate the agreement, but it is another gap in the Ukrainian surrogacy law where intended parents are not protected. (344)

However, while the limited conditions on who may enter a surrogacy arrangement and the Ukrainian laws that establish the intended parents as the sole legal parents may appear to solve all problems that could arise from entering an international surrogacy agreement in the Ukraine, the fact that under Ukrainian law the intended parents are the child's sole legal parents upon birth could be the source of one of the largest problems that arise in cross border surrogacy arrangements: citizenship issues. The child born to a Ukrainian surrogate is not entitled to Ukrainian citizenship because, under Ukrainian law, the child takes the nationality of their legal (intended) parents. Therefore, the child is only entitled to citizenship from the intended parent's home country because they are now the child's legal parents under Ukrainian law. However, as illustrated by the case law below, the home country of the intended parents may not recognize the intended as the legal parents of the child under their domestic laws, despite Ukrainian law to the contrary, and therefore the child may effectively be left stateless and parentless and without the ability to exit the Ukraine. (345)

As with India, the role the Ukrainian surrogacy clinics and companies that assist in providing surrogacy arrangements has been a major contributing factor in the increase of foreign intended parents travelling to the Ukraine for commercial surrogacy arrangements. It is difficult for foreigners to evaluate the representations and claims made by commercial surrogacy clinics operating in the Ukraine. The issues of legal support and protection of rights of children born to surrogate mothers are supervised by the Ukrainian Association of Reproductive Medicine (346) so it would be reasonable for intended parents to look to this association's website for information on Ukrainian surrogacy. However, only members of the Ukrainian Association of Reproductive Medicine can read some parts of the site. Without being registered to use the site, the only material that is available in English is the "main conferences information" from 2008-2010, which appears to provide nothing more than the speakers and objectives of the conference. (347)

Ukraine is seen as an attractive destination for surrogacy arrangements because of the widespread view that the country's law favors intended parents. Therefore, it is not surprising that all of the leading Ukrainian surrogacy websites most easily found using internet search engines like Google, clearly advertise on their home page that Ukraine is the ideal location because of its surrogacy laws. Ukrainian surrogacy laws are described on these websites with phrases such as: "the most favorable in the world," that the laws are "a logical approach to surrogacy," and "are very favorable because they protect your rights as the parents of your baby." From statements such as these, it is easy to understand why foreign intended parents may be misled to...