on 07 November 2014
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Legal relationship between the surrogate mother, on the one hand, and the Customer, on the other hand, shall be governed by the Contract to be concluded in accordance with the following active laws:

А) Article 1 of the Civil Code of Ukraine, which states that all personal non-property and property relationship (civil relationship) based on the principles of juridical equality, free expression of will, property self-dependence of parties involved shall be governed by civil legislation.

Article 6 of the Civil Code of Ukraine, which states as follows:

1. The Parties shall be entitled to enter into a contract, which is not provided for by the civil legislation acts but meets the fundamental civil legislation requirements.

2. The Parties shall be entitled to regulate and adjust their business relationship in a civil legislation contract, which are not regulated by the civil legislation acts.

3. The Parties under the contract can be entitled to make a departure from the provisions of the civil legislation acts and regulate their relationship at their own discretion.

The Parties to the Contract cannot be entitled to depart from the provisions of civil legislation acts, if the acts indicate expressly that any such departure is not possible, as well as in those cases where the binding condition of provisions of civil legislation acts directly proceeds from their content or essential relationship between the Parties. 

4. The provisions of the first, second and third part of this Article shall also be applicable to unilateral authorities.

 Article 627 of the Civil Code of Ukraine, which sets freedom of contracts

Hence, a contract, pursuant to which one of the parties enters into commitment to provide the other party with the service of carrying a child to be conceived by the in-vitro fertilization method, while the other party enters into commitment to accept the above service and effect payment for it will be in strict conformity with the active laws.

Article 628 of the Civil Code of Ukraine, which sets the content of contracts

Article 629 of the Civil Code of Ukraine, which sets the binding aspect of contracts

Article 639 of the Civil Code of Ukraine, which sets the form of contracts

B) Article 123 of the Family Code of Ukraine regulates the issues of origination of a child who was conceived with the aid of reproductive methods. According to part 2 of this Article, spouses who had a child conceived with the aid of reproductive methods shall be recognized as parents of such a child.

Besides, subparagraph 2.2, paragraph 2 of Order of Ministry of Justice of Ukraine No. 140/5, dated May 18, 2003 sets the order of legalization of parental rights of spouses, grounding on the notarized consent thereto on the part of the woman who gave birth to the child.

Therefore, according to the above standard provisions of the active laws of Ukraine, spouses who represent the customer under the contract entered into between them and their surrogate mother shall be expressly recognized as the parents of the child who was conceived with the use of reproductive methods.

The relationship between the surrogate mother, customer and medical institution shall be regulated by the contract for fulfillment of the in-vitro fertilization program.

In this case the parties shall be governed by the standard regulations of the active laws of Ukraine, which are referred to in p. A), as well as by the following laws:

1. Article 4 of Law of Ukraine “Health Care Legislative Bases in Ukraine”, which sets, in particular, the following health care basic principles:

versatile character of public health economy and its financing, combination of state guarantees with de-monopolization and encouragement of business entrepreneurship and competition;

decentralization of state administration, development of self-government institutions and self-sufficiency of people employed in the sphere of health care on the legal and contractual bases.  

2. Article 48 of Law of Ukraine “Health Care Legislative Bases in Ukraine”, which provides for application of in-vitro fertilization and embryo implantation techniques under conditions and according to the procedure set forth by the Health Ministry of Ukraine, on the grounds of medical indications relating to a woman of legal age, to whom the above-mentioned techniques are to be applied, which shall be subject to a written consent on the part of the spouses, maintenance of anonymity of the donor and medical secrets.  

3. Article 38 of Law of Ukraine “Health Care Legislative Bases in Ukraine”, which sets freedom of choice of a doctor and medical institution by a patient.

4. Article 79 of Law of Ukraine “Health Care Legislative Bases in Ukraine”, which states that, pursuant to the active laws,  public health institutions, citizens and their associations shall be granted the right to enter into agreements (contracts) with foreign legal entities and individuals to establish cooperation in any forms, take part in business carried on by appropriate international organizations, carry out foreign-economic activities.   

Hence, the above standard laws of Ukraine regulate the procedure for  establishing contractual relationship between medical institutions and different individuals and legal entities with the purpose of providing core services and, in particular, in-vitro fertilization services.

Order of Health Ministry of Ukraine No. 24, dated February 04, 1997, sets the in-vitro fertilization procedure and conditions.

This document contains the following provisions:

1. n-vitro fertilization programs shall be fulfilled by qualified medical institutions (p. 1.2);

2. decisions as to fulfillment of a program shall be taken on the grounds of the application to be filed by a legally capable woman to whom the procedure is to be applied, following documentation of the relevant application of spouses and their medical examination (p. 1.3);

3. the age of a woman to whom the in-vitro fertilization method is to be applied shall not exceed 40 years.

In this case, neither Article 48 of Law of Ukraine “Health Care Legislative Bases in Ukraine”, nor provisions of Order of Health Ministry of Ukraine No. 24, dated February 04, 1997, contain references to the condition that the woman to whom the in-vitro fertilization procedure is to be applied on the grounds of her application must represent one of the spouses who gave consent that this procedure be applied and incurred obligations of parents in respect of a child to be born.

Therefore, with the consideration of the standard provisions of the active laws of Ukraine, no apparent limits are set in respect of in-vitro fertilization services provided by medical institutions, with the only exception of the cases where there exist personal medical contraindications to this procedure.

A note may also be made of the provisions below.

The Convention on Protection of Human Rights and Dignity with the reference to applications in the sphere of biology and medicine, Convention on Human Rights and Biomedicine, dated April 04, 1997, provide for the following:

Interests and welfare of an individual shall prevail over exclusive interests of the whole society or science (Article 2).

With the consideration of medical demands and available resources, the parties shall take appropriate measures to provide for equitable access to medical assistance of adequate quality, within the bounds of their jurisdiction (Article 3).

The provisions for in-vitro fertilization and transplantation of embryos, which were adopted by the 39th World Medical Assembly (Madrid, Spain, 1987), are as follows:

In-vitro fertilization and embryo transplantation represent the medical method, which is applied in many parts of the world for the purpose of infertility treatment. This method can be applicable both to individual patients and the whole society and is intended for treatment of infertility, genetic diseases and promotion of fundamental research in the sphere of human reproduction and contraception.

As far as ethical and scientific aspects are concerned, the medical assistance rendered in the field of human reproduction is justified in all cases of infertility that does not answer to classic drug-induced or surgical treatment.

In all above cases the doctor can be authorized to take appropriate action only provided the express and information-based consent thereto is given by the donors and recipients. First and foremost, the doctor shall take action in the interests of a child to be born as a result of implementation of the procedure.

In this aspect, the World Medical Assembly (WMA) also welcomes and supports the in-vitro fertilization method. The provisions make a further note of potential ethical and legal conflicts that may result from the use of donor oocytes, sperm and embryos. However, in general, the provisions give support to the use of donor matter in the process of in-vitro fertilization, the attention being drawn to the importance of observation of the national law standard regulations in the course of implementation of the procedure.

The provisions do not either disprove potential application of the so called substituted parenthood where a woman gives her consent to in-vitro fertilization for the purpose of conception of a child who will subsequently be adopted by a man or his wife.

Disapproval is expressed by WMA as regards procedures that involve in-vitro fertilization on a commercial basis.

Hence, the relationship between the customer and surrogate mother is not disproved by WMA in principle. And if the customer accepts to bear expenses on maintenance of the surrogate mother during the whole pregnancy period, thus  providing for the most favorable fetus development conditions, such concept of customer’s expenses would conform, in general, to the main principles of the provisions.