The surrogacy process in general can be quite complex, but when it involves a foreign government and their local laws, it can add an additional layer of confusion. The following is a discussion of the surrogacy process within Ukraine and the Republic of Georgia.
Surrogacy in Ukraine is both legal and secure. The practice is well regulated, and surrogacy contracts are considered enforceable under legislation enacted at the federal level. Under Ukrainian law, the child belongs solely to the intended parents from the moment of conception. Once the baby is born, the birth certificate is issued with the names of the intended parents, and the surrogate is not awarded any parental rights. As a result, the surrogate has no standing to keep the baby or claim any rights. The egg or sperm used must be provided by one of the intended parents so that there is a biological connection with the child.
In general, Ukraine has a much more comprehensive legal framework for surrogacy than other European countries. Most countries either prohibit surrogacy altogether or they allow surrogacy agreements only if the surrogate is unpaid. (Compare this to the altruistic surrogacy laws in the United Kingdom and in Canada.)
For those countries that allow surrogacy, the laws typically give all parental rights to the surrogate until a court process (a “parental order,” for example) can transfer the rights from her to the intended parents. In these countries, the surrogate has an option to sue for custody if she chooses. This is not the case with surrogacy in Ukraine.
Surrogacy in Ukraine is officially regulated by Clause 123 of the Family Code of Ukraine, which establishes the parental relationship in cases of Medically Assisted Reproduction. The clause states that “if an ovum conceived by a [married couple] is implanted to another woman, the [married couple] shall be the parents of the child.” The clause supports the surrogacy contract, while at the same time restricting the procedure only to married couples. (“Married” as defined by Ukrainian law does not currently recognize same-sex marriages.)
Registration of the baby is regulated by Order 24 and Order 771 of the Health Ministry of Ukraine, which deal with medical procedure of artificial insemination and embryo implantation. The order declares that in cases where a woman has given birth to a baby conceived by another couple (i.e., a surrogacy arrangement), the registration of the child is made based on the surrogacy agreement signed by the intended parents and the written consent of the surrogate. The agreement is submitted alongside the medical document certifying that the surrogate gave birth to child of the intended parents, and this allows the intended parents to be registered as legal parents of the child.
Meanwhile, Order 24 of the Health Ministry of Ukraine further regulates the details of surrogacy in Ukraine, giving guidelines that protect the surrogate and ensure a healthy outcome to the process. Under the guidelines, surrogates must meet the following requirements:
That being said, surrogacy in Ukraine is not without its risks. All new parents must apply for citizenship and travel visas to return home with their newborn baby. This is quite easy in countries like the United States or the UK. However, some countries have steadfastly refused to issue citizenship to surrogacy babies, including Italy and Switzerland. All couples who are considering surrogacy in Ukraine should check with a local family law expert to learn the process for establishing citizenship and bringing the baby home.
Surrogacy in Ukraine is tightly regulated, which makes it a secure and stable destination to start your family. However, it also means that there is some additional red tape to navigate in order to qualify.
Here are the documents you must provide to fulfill the legal requirements in Ukraine:
Regarding the doctor’s letter, it is a requirement that the mother’s local doctor provide a statement that the intended mother is unable to successfully carry a pregnancy herself. This letter is an important requirement of the Ukrainian bureaucracy for surrogacy. Specifically, the letter should explicitly state one of the following reasons why surrogacy is a recommended option:
Your doctor needs to state one of these reasons in the letter. He or she should also add that among the available fertility treatments, surrogacy would be a likely option.
Sometimes the details of a patient’s situation are obvious, and you may think they do not need explanation. But the requirement is not intended for the clinic—it is to satisfy the local authority, which requires a doctor’s letter on file. The clinic is charged with enforcing the requirement. All surrogacy cases are reviewed by the authorities to ensure that the paperwork requirements are met.
Also, couples should send any available medical records regarding previous fertility treatments. BetaPlus Kiev will want to know as much about your medical history as possible when they accept you as an intended parent.
The Republic of Georgia is one of the few countries located in the Caucasus region of Eurasia. Located at the crossroads of Western Asia and Eastern Europe, Georgia is a member of the United Nations and the Council of Europe, amongst other international organizations. The capital and largest city is Tbilisi.
Surrogacy is legal in Eastern Europe. Particularly, the law that regulates this third-party assisted reproduction treatment came into force in 1997.
The Georgian law only gives heterosexual couples the right to have a baby through surrogacy. This excludes the possibility for gay couples and singles to become parents via this method.
According to Article 143 of the legislation of Georgia, in particular the law “On Health,” extracorporeal fertilization “is allowed if a woman has no uterus—for the purpose of relocation and nurture of an embryo, received as a result of fertilization, into another woman’s (‘surrogate mother’) uterus; the couple’s written consent is required.”
Even though Article 143 makes reference only to women without a uterus as potential candidates to have a baby via surrogate, the Georgian government actually accepts cases of Müllerian duct anomalies or medical inability to carry a child until birth as reasons as to why a couple may need a gestational carrier as well.
Written consent of the couple is required prior to starting the treatment. Once signed, this written consent will be used to deem the intended parents as the legal parents, with the responsibilities and authorities proceeding from this fact.
It should be noted that the Georgian legislation permits both altruistic and commercial surrogacy arrangements. The compensation and expectations of the parties will be detailed in the surrogacy contract.
According to Article 144 of the aforementioned law, egg and sperm donation are also allowed, in the case a couple may need either of these options. In fact, the identity of donors can be disclosed to the intended parents. As long as they agree, they can even get to know a donor in person.
As previously mentioned, once the child is born, the intended parents will be deemed as parents, having all the legal responsibilities and rights derived from it. The surrogate shall not have any rights to the child, and by no means will be recognized as the legal mother of the child.
Intended parents from the U.S. should be aware of the requirements of the Department of State regarding assisted reproductive technology (ART) and surrogacy abroad. In particular, they should pay close attention to the conditions prescribed in the Immigration and Nationality Act (INA).
According to the statutory transmission requirements of INA 301 and 309, it is necessary for at least one intended parent to be biologically related to the child born abroad via surrogate.
Even if the intended parents are considered the legal parents of the child by the particular international government, they need to meet certain requirements established by the U.S. Department of State in order for the child to acquire U.S. citizenship at birth.
As a result, even though the international legislation may allow the use of donor gametes in surrogacy arrangements, intended parents should keep in mind that at least one of them must have a genetic link to the baby. DNA testing will be required to establish a genetic relationship.
Provided that the intended parents meet this criterion, the next step is to apply for a Consular Report of Birth Abroad of an American Citizen (CRBA) and a U.S. passport for the child at the U.S. Embassy in the applicable international location.
BetaPlus Fertility is dedicated to supporting parents, intended parents, surrogates and donors at all stages of their journey. While it’s understood that the current situation is temporary, we know that families are lasting and enduring. We encourage you to fill out the form below and schedule your complimentary, virtual consultation to take the first step on your journey.
