Legal Regulation of Fertility Treatment in Ukraine. Gestational Surrogacy

 

"Children are the living messages we send to a time we will not see." John W. Whitehead, founder, Rutherford Institute

 

Legislation on assisted reproduction practice in Ukraine, including international fertility treatment programs:

  • The Law of Ukraine No. 2801-XII of 11/19/1992 "Fundamentals of Health Legislation of Ukraine";

  • "Instruction on Procedures for Assisted Reproductive Technologies", adopted by the Order of the Ministry of Health of Ukraine No. 771 of 12/23/2008;

  • The Family Code of Ukraine, adopted by the Law of Ukraine No. 2947-III of 01/10/2002;

  • Provisions of the Civil Code of Ukraine of Ukraine pertaining to contractual obligation;

  • The Law of Ukraine 07/01/2010 No. 2398/VI "On Vital Statistics Registration";

  • "Rules for Vital Statistic Registration in Ukraine", adopted by the Order of the Ministry of Justice of Ukraine No. 52/5 of 10/18/2000;

  • The Law of Ukraine No. 2235-III of 01/18/2001 "On Citizenship of Ukraine";

  • The Law of Ukraine No. 3773-VI of 09/22/2011 "On Legal Status of Foreigners and Stateless Persons".

We are passionate to help the Prospective Parents to understand the law, and the aim of this survey is to provide a brief overview regarding legal regulation of various aspects of Assisted Reproduction Technologies that are practiced in Ukraine:

Marital status of the patients
Most professional bodies and legislation in the various countries of Europe have recommended that ART should be restricted to heterosexual couples, legally married, or at least living in a stable relationship. The arguments for restriction of ART only to married couples are that children raised in family framework have an advantage of over children living with a single parent. On the other hand, the structure of our society is rapidly changing: there is an increasing divorce rate, and there are an increasing number of single women who wish to become a mother and establish a single-parent family. Moreover, co-habiting couples are inclined to get married once their child is born.
Ukrainian "Instruction on Procedures for Assisted Reproductive Technologies", adopted by the Order of the Ministry of Health No. 771 of 12/23/2008 stipulates that each woman and/or man of majority age can undergo treatment by means of Assisted Reproductive Technologies on medical indication.
Thus, Ukrainian legislation allows medically assisted procreation for both married or co-habiting couples as well as single persons, with the only exception of surrogacy programs that are practiced only for officially married spouses so far.

Fertility treatment programs allowed:

  • In vitro fertilization (IVF)
  • Intracytoplasmic Sperm Injection (ICSI)
  • Gamete Intrafallopian Transfer (GIFT)
  • Zygote Intrafallopian Transfer (ZIFT)
  • Intrauterine Insemination with husband or donor sperm (IUI)
  • Egg donation
  • Sperm donation
  • Embryo donation
  • Surrogacy

For more information on each particular program you are welcome to visit our next page "Programs Overview"

When is embryo transfer performed?
The Instruction on Procedures for Assisted Reproductive Technologies in Ukraine, adopted by the Order of the Ministry of Health of Ukraine No. 771 of 12/23/2008, allows embryo transfer at different stages, from cleavage stage (after only three days in laboratory) to the blastocyst stage (when embryos are cultured for 5-6 days until they have 60-100 cells).

How many embryos are transferred?
Of course, a greater the number of embryos transferred means a higher risk of a multiple pregnancy. When multiple pregnancies occur, the health of both carrying mother and child are affected, so that fertility clinics modify their procedures to minimize risks of multiple pregnancies.
According to the ESHRE's position paper "On Good Clinical Treatment in Assisted Reproduction" (2008) a two embryo transfer (DET) policy is now common in most European countries.
In Ukraine these trends are reflected the Instruction on Procedures for Assisted Reproductive Technologies, adopted by the Order of the Ministry of Health of Ukraine No. 771 of 12/23/2008. Its Section 3.6 namely stipulates that it is recommended to transfer no more than 1-2 embryos in the course of IVF procedure. When low rate of embryo implantation is anticipated, it should be possible to transfer more embryos, but not exceeding 3 embryos when a woman consents thereon. Subject to the woman's written consent a selective single embryo transfer combined with cryopreservation of the remaining viable embryos for the later use can be performed.

Selective fetal reduction of multiple pregnancy
According to Ukrainian legislation, embryo reduction is performed to prevent various obstetrical and prenatal implications associated with multiple pregnancy (three or more fetuses) arising as a result of ART. Fetal reduction is applied by decision of the board of at least three specialists and only after the pregnant woman has given her written informed consent for that. Specific number of embryos to be reduced is precised by the woman upon her doctor's advice.

Pre-embryo research
Preimplantation genetic screening of oocytes and embryos (PGD) for monogenic disorders and chromosome abnormality as well as determination of the embryo's sex in order to prevent an inherited condition related to the child's sex are performed in Ukraine as an alternative method of prenatal testing of women who are at risk of passing on an inherited genetic decease to their issue. The principal advantage of PGD is that it offers an opportunity to avoid invasive intervention into embryo/fetus egg and to interrupt the pregnancy in case any pathology is found.

Cryopreservation
While many embryos may be produced during a single IVF cycle, the common practice is to use cryopreservation of extra embryos for future use.
In Ukraine cryopreservation of sperm, oocytes and embryos is performed by using traditional slow-freezing method or vitrification (a novel device for safe storage of oocytes and embryos while using a specialized technique, which freezes the cells so quickly that ice crystals don't have time to appear).

Status of children born following IVF
The status of children resulting from IVF has been under discussion for some years. In many countries legislation concerning the practice of ART does not exist as of today, and the legitimacy of the child is determined by the courts in cases brought before them. The usual recommendation on this matter, including that of the Council of Europe, is that child conceived by virtue of IVF with the mother's husband should be treated under the law as the legitimate child of the husband. The donor should have no rights, obligations or interest with regard to the child born as a result of IVF, as the child shall have no rights of litigation or interest toward the donor. Furthermore, the Council of Europe recommends that all precautions should be taken to keep secret the identity of all parties involved.

Article 123 of the Family Code of Ukraine regulates affiliation of the child born by virtue of Assisted Reproductive Technologies as follows:

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    • If the wife delivers the child conceived using Assisted Reproductive Technology, upon written consent of her husband, the latter shall be registered as the father of the child born by his wife.
    • If the embryo conceived by the spouses using Assisted Reproductive Technology is transferred into the body of another woman, the spouses shall be the parents of the child. (remark: Gestational Surrogacy)
    • The spouses shall be considered as the parents of the child, born by the wife, when an embryo conceived by her husband and another woman was transferred into the wife's body.

Taking into account that traditional surrogacy is not mentioned in the law, the child born as the result of artificial insemination pursuant to a traditional surrogacy program is deemed to be the child of the surrogate mother and commissioning biological father. If traditional surrogate is however married, her husband would be the legal father of this child.

Legal regulation of gestational surrogacy in Ukraine

If you need to speak to a lawyer about international family planning, legal separation, child custody, enforcement of a court order, fertility treatment options, inheritance rules or another family or succession law matter, contact the Law Offices of UkrLegis.