• Contract with surrogacy agency for organizational and associated services

• Contact with fertility clinic for medical services

• Contract with the Surrogate, which should be notarized

Traditionally a Child-Carrying Contract contains the following counter obligations:

1. The Surrogate undertakes to gestate and deliver a child not genetically related to her complying to the best of her abilities with all provisions of the contract and relinquish custody of this child to the Intended Parents.

The Intended Parents should not hesitate to provide instructions for the Surrogate in fulsome detail that should facilitate uncomplicated course pregnancy and birth of a healthy child (e.g. to submit to medical examination and procedures, to follow all instructions and requirements of the physicians concerning daily schedule, nutrition regime, living conditions, to take medicines, not to smoke, drink alcoholic beverages, use any drugs, to avoid heavy physical activity and psychological stress, in case of any deviations in her health conditions urgently to inform the physicians etc.).

2. The Intended Parents undertake to take custody of the child born by the Surrogate and pay for her services.

According to the Article 623 of the Civil Code of Ukraine the contract price is fixed by agreement of the parties. The value of a Child-Carrying Contract is usually comprised of two components. The Genetic Parents have firstly to compensate actual expenses incurred by the surrogate (e.g. medical examinations and expenses associated with any testing done, living expenses, special clothing, telephone calls to the Genetic Parents etc.) The second part is namely remuneration of the Surrogate for gestation and delivery of a child.

It is also advisable that a Child-Carrying Contract contains additional provisions for regulation of such real-life emergencies as: birth of several children; birth of a child with deformity or with special needed which has nothing to do with the performance by the surrogate of her duties; stillbirth or miscarriage; situation when the pregnancy of the Surrogate does not occur as the result of the full cycle of medical procedures; necessary abortion on medical indications; divorce of the Genetic Parents; death of one or both Genetic Parents etc.

Besides, a Child-Carrying Contract should involve provisions pertaining to liability of the Parties for non-performance or improper performance of their duties. In this section the Parties could specify fine sanctions for the case of regular violation of contract’s provisions by the Surrogate or even stipulate her deprival of reward if she doesn’t follow all instructions and requirements which carries negative consequences for a foetus.

To be on the safe side, it is recommended that the Surrogate Mother confirms in writing before undergoing surrogacy program that she provided the medical personnel with full and true information to the best of her knowledge about her past medical history and surgeries, absence of genetic and mental disorders in her family, as well as the absence of contraindications for carrying pregnancy, and that no information has been or will be omitted, falsified, embellished or altered for her own benefit or to comply with any term of the Child-Carrying Contract.

Medical indications

Instruction on Procedures for ART sets forth the following medical indications to confirm eligibility of the Intended Parents for surrogacy program.

1. Absence of a womb (inborn or acquired)

2. Deformation of the cavity or cervix uteri, making pregnancy and delivery impossible

3. Synechi of womb cavity

4. Severe somatic diseases, making duration of pregnancy impossible

5. Multiple (more than 4) implantation failures associated with the transfer of high quality embryos.

All these indications should be confirmed by relevant medical reports that need to be laid out on official letterheads of issuing medical institutions and contain signatures of the doctors (specifying full names and positions). No Apostille is required on medical letter.

Marriage of the Intended Parents

It should be emphasized that according to Ukrainian legislation gestation of a child by surrogate mother is only possible if the Intended Parents are officially married. So they should present a marriage certificate as a second condition. In case of participation of foreign citizens this document should be duly legalized or apostilled in accordance to the provisions of Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.

Genetic link of at least one of the Intended Parents to the fetus

Age of the Intended Parents

As of today, Ukrainian Law does not set forth any age restrictions for the patients, who participate in fertility treatment programs, including surrogacy. However, this issue causes hot debates among the members of Ukrainian Association for Reproductive Medicine (UARM). The position of UARM is that age limits are absolutely necessary. The suggestion of the Ukrainian Ministry of Health is the age limit of 49 years, whereas UARM consider 51 years old as an option.

As for birth registration of a child, it is worthy to note that Ukrainian legislation is very favourable in this regard, since the names of Intended Parents are recorded in the birth entry of the Vital Statistics Office from the very beginning.

Pursuant to the Rules for Vital Statistics Registration in Ukraine such registration upon applications of foreign citizens and stateless citizens is conducted in compliance with the Ukrainian legislation. If a child was born by the woman, impregnated with an embryo originating from the spouses, the birth registration is conducted upon the application of the married couple, who gave consent to implantation. It is only necessary to submit to the Vital Statistics Office a notarized consent of a Surrogate to record the names of the spouses as the child’s/children’s parents; the document, confirming the fact of the child’s birth and certificate on genetic relationship of Intended Parents to the child. In this case the spouses are duly registered as parents of their new-born child/children and only the column “Remarks” contains record indicating the name of Surrogate Mother. However this record is kept with the Vital Statistics Office and is confidential.

Thus, the Intended Parents enjoy official status of legal parents of the new-born baby(ies), born by the Surrogate in Ukraine, whereas the Surrogate and her husband (if any) acquire no parental rights thereof.

In the frame of the Law “On the Citizenship of Ukraine” there is no room for automatic acquisition of Ukrainian citizenship by a child born by surrogate mother in Ukraine as a result of transfer of an embryo, conceived by a foreign married couple. A child born within the territory of Ukraine by foreigners can acquire the citizenship of Ukraine only in the event that the child has not acquired the citizenship of his/her parents, and that the parents live permanently within the territory of Ukraine on legal grounds (Article 7).

Foreigners and stateless persons shall enter/exit Ukraine through the crossing points on the State frontier in case of presence of a national passport and a visa, if otherwise is not specified by the Ukrainian legislation. Citizens of the States which have concluded international agreements with Ukraine on visa-free travelling enter into/exit from Ukraine with a valid national passport.

In international surrogacy arrangements, the child will often have no automatic claim to nationality of the Intended Parents. This can mean that additional steps need to be taken before you can bring your child home.