Legal risks of surrogacy

Inconsistency of norms in different legislative acts generates legal collisions and allows any of the parties in the process to commit unlawful acts. Such actions go not only beyond the law but also beyond morality.

For example, biological parents abandon a child born to a surrogate if the infant is born unhealthy. A surrogate mother can pass off her own child as one who has a genetic connection to the customers of her services.

For foreigners, the main risk is the prohibition of surrogacy in the home country. For example, in Spain surrogacy is regarded as human trafficking. There are obvious problems with registering the citizenship of a child born by a surrogate abroad.

In order to leave Ukraine with a child, it is necessary to submit an application to the embassy of one’s own country, to get permission and documents for the child. This is impossible to do when surrogacy is prohibited in the parents’ home country.

Ukraine as a state is not obliged to check if parents can legalize the child’s status in their home country. Clinics and agencies providing surrogacy services are not breaking the law when they agree to work with nationals of states where surrogacy is prohibited. Minimizing legal risks is up to the biological parents themselves.

Do I need notarial documents for surrogacy?

Clause 6.11 of Procedure No. 787 contains a list of documents required for the procedure. This list includes “a notarized copy of a written joint agreement between a surrogate mother and a woman (man) or a spouse”.

Such a contract is the main regulation under which surrogacy is performed; the documents in the contract’s package have an auxiliary meaning. A correctly drawn agreement is a guarantee of minimizing legal risks for both the surrogate and the biological parents. Such a contract should be drafted/analyzed by an experienced attorney!

In addition to the generally accepted conditions, experts recommend that force majeure and unforeseen circumstances be spelled out in the contract:

  • Miscarriage, the birth of a stillborn child, termination of pregnancy for medical reasons.
  • Dissolution of marriage by biological parents, death of one of the parents.
  • Deterioration of the mother’s health during pregnancy.
  • Birth of twins/triplets.

Birth of a child with a malformation that could not be diagnosed in the prenatal period and which is not related to the surrogate’s violation of the recommended way of life.

Legally, such a contract involves a performer (surrogate mother) and customers (biological parents). The performer undertakes to carry, give birth to, and deliver the child to the customers. The customers undertake to support the surrogate during the pregnancy, compensate her expenses (items of expenditure are prescribed in the contract), and then pay her remuneration.

The main items of expenditure for the surrogate that should be outlined in the contract:

  • Medical support;
  • purchase of food, vitamins, medications, special clothing for pregnant women;
  • Temporary relocation to another place of residence to maintain confidentiality (optional).

The surrogacy contract must include a section on the parties’ liability for failure to fulfill their obligations. For example, penalties are specified.

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