Couples and individuals unable to have children of their own are turning to surrogacy as a viable pathway for bringing a child into the world, with arrangements occurring nationally and increasingly internationally. Given Ukraine’s relatively relaxed rules on commercial surrogacy as compared with the approach of other countries such as the UK, and the comparative inexpensiveness of surrogacy arrangements as compared with, for example, the USA, it has become somewhat of a hub for global commercial surrogacy.
The Russian invasion of Ukraine has flooded media outlets with images of devastation and destruction. Included within them are the images of displaced babies born out of commercial surrogacy arrangements in makeshift nurseries. Those babies are cared for by nannies and other carers, as their anguished intended parents are unable to collect their vulnerable newborn babies. Beyond these images are also the surrogate mothers who are carrying babies for intended parents, who may be unable to obtain adequate medical care and are at grave risk from the turmoil caused by the invasion. A little more removed but nevertheless concerning for intended parents, are the embryos created and awaiting transfers to their gestational carriers in the fertility clinics that facilitate surrogacy arrangements. Whilst Ukraine had previously seemed like a desirable destination for commercial surrogacy, the realities of the current situation in Ukraine have cast a stark light on the complications and difficulties that can arise when entering into these types of agreements.
Surrogacy in the UK
The Surrogacy Arrangements Act 1985, makes limited provision for surrogacy agreements, rendering such agreements unenforceable. Commercial surrogacy is also unlawful under the Act however reasonable expenses can be paid to a surrogate mother. Consequently, a lack of women prepared to commit to participating in surrogacy arrangements as gestational carriers on an altruistic basis, and the uncertainty caused by unenforceability, have driven the surrogacy market overseas where such problems do not arise.
The Human Fertilisation and Embryology Act 2008 and case law provide the rules to determine who the legal parents of a child born through a surrogacy agreement are at the time that the child is born. The legal mother of the child will be the gestational carrier of the child i.e. the surrogate, even if she has no genetic connection to the child. The legal father or second parent will be the surrogate’s spouse/civil partner, or potentially the intended father where his sperm was used.
Consequently, at most one and often none of the intended parents will have legal parenthood of the child at birth. Those intended parents not having legal parenthood at birth must apply to the court for a parental order transferring to them legal parenthood and parental responsibility. Such orders are governed by sections 54 and 54A Human Fertilisation and Embryology Act 2008, and can be made no earlier than six weeks and no later than six months after the birth of the child. It is therefore the case that the surrogate mother retains certain rights and responsibilities towards the child carried by her as part of a surrogacy agreement, for some time after birth. Whilst the Law Commission is currently reviewing the position of the law in this regard after a lengthy period of consultation, with an expected recommendation that it be the intended parents that have legal parenthood and parental responsibility from birth, the above represents the current legal position.
Surrogacy in Ukraine
The surrogacy landscape in Ukraine is very different from that in the UK. Commercial surrogacy arrangements are permitted and foreign heterosexual couples can employ the services of a surrogate to gestate a child from their own or donated gametes. This is provided that one parent has a genetic relationship to the child and the couple is able to evidence a medical need for the surrogacy e.g. through infertility. Gestational carrier agreements must be signed by a public notary prior to embryo transfer, but otherwise, surrogacy arrangements are clinician led, with large fertility companies based in the capital, Kyiv, leading in the surrogacy market.
In Ukraine, the gestational surrogate forfeits all rights and responsibilities to the child and the intended parents are recognised as the legal parents of the child rather than the surrogate, contrary to the UK position. The intended parents will be registered on the birth certificate, provided that they can evidence the genetic relationship between the child and at least one of the intended parents. The child will not be granted Ukrainian citizenship where the intended parents are from overseas, rather the child would acquire the citizenship of its intended parents through an application to the consular office of the country from which the intended parents originate.
The Difficulties of the Current Situation
Herein lies a problem. Typically intended parents are expected to fly to Ukraine and be in the country for the birth of the child, as well as a period of time after so that immigration issues can be resolved. As well as registering the birth of the child with themselves as parents on that birth certificate, the intended parents will need to apply for a passport and/or travel documents so that the child can leave Ukraine. For intended parents from the UK, they will also need to plan to apply for a parental order in the UK so as to secure their legal parenthood within their home jurisdiction.
Restrictions arising from the Covid-19 pandemic had already impacted intended parents’ ability to take these steps and the war between Russia and Ukraine has made this even more difficult. With Ukraine’s government and court structures grinding to a halt and British as well as many other diplomatic posts closed, it is immensely difficult to obtain the necessary passports or travel documents for children born out of surrogacy agreements, leaving those children stateless. A growing number of foreign couples have infants born in Ukraine who they are unable to reach and whilst some governments are working on emergency measures to allow babies to be granted travel documents without birth certificates, there is still the difficulty of actually getting to their children. With communications frustrated due to the ongoing conflict, children from clinics displaced into makeshift shelters and gestational mothers having no legal obligations towards that they have given birth to, a highly concerning time has arisen for the wellbeing of these children and those that will be born in the future.
Associate Head of School (Recruitment and Marketing)