There have recently been rumours circulating on social media and claims emanating from a particular clinic/agency in Ukraine regarding the future of surrogacy in Ukraine. Below I will set out the FACTS.
I will try to set the record straight. As of now, Aug/Sep 2018, there are no changes. Foreign IPs can still access our surrogacy programs in Ukraine and sign and agreement with a surrogate. Surrogacy has attracted media and government attention in Ukraine primarily because of the repeated unethical conduct of one particular clinic/agency. The same clinic/agency that is telling people that foreign IPs can no longer undertake surrogacy. In fact it is that clinic/agency that is affected and no-one else.
As a result the surrogacy laws are under review and 5 draft laws have been prepared and may go before the Parliament. The Parliamentary session commences in September however, at this stage our Ukrainian lawyers believe the laws may be held over until after the Presidential elections in March 2019. The relevant current laws and regulations in Ukraine are Article 123 of the Family Code of Ukraine and Order 787 of the Ministry of Health.
Considering the draft laws the worst case scenario is Draft Law No. 8625 dated 18 Jul 2018 which seeks to amend Article 48 of the Fundamentals of Health Legislation of Ukraine so as to restrict access to assisted reproductive technologies to Ukrainian citizens and permanent residents only. Our Ukrainian lawyers believe there are problems with the constitutionality of such a law and are of the view that the alternative draft laws have a better chance of being adopted. The 2nd and 3rd draft laws are Draft Law No. 8625-1 dated 26 Jul 2018 and Draft Law No. 8625-2 dated 1 Aug 2018. They are each alternatives to Draft Law No. 8625 dated 18 Jul 2018 and propose a different amendment to Article 48. These alternative draft laws would limit the access to assisted reproductive technologies (surrogacy) to Ukrainian citizens and “foreigners temporarily staying in Ukraine“. Our lawyers advise that if such an amendment were made to the law then foreign IPs would have to be present in Ukraine for the commencement of the program rather than the current situation where IPs are able to commence by giving a power of attorney to our Ukrainian lawyers and simply ship their genetic material to Ukraine.
Either of these laws, if enacted, would have limited impact on foreign IPs. You would need to travel to Ukraine to commence your journey.
The 4th and 5th draft laws, Draft Law No. 8629 dated 19 Jul 2018 proposed by Ukrainian Association of Reproductive Medicine and Draft Law No. 8629-1 dated 19 Jul 2018 proposed by Ukrainian Foundation of Companies providing Organisational and Legal Support of ART Programs, each propose detailed regulations of the entire ART and surrogacy field by addressing the requirements and obligations and rights of clinics, agencies, surrogates and donors. So they propose a comprehensive legislative and regulatory regime to avoid the unethical and questionable practices that have arisen with a small number of clinics and agencies. These draft laws would also require IPs to personally attend in Ukraine for the commencement of the program.
So in summary it is highly likely that once the relevant law has been amended foreign IPs will need to travel to Ukraine to commence the program and will not be able to simply ship their gametes to the clinic. The upside is that if the 4th or 5th draft laws are adopted then there will be greater legal certainty and protections for all involved – IPs, surrogates and donors.
