Resolving disputes in court on issues of surrogate motherhood in Ukraine

Surrogacy is one of the most modern methods of reproductive medicine, which enables married couples who cannot have children naturally to become parents.

In Ukraine, surrogate motherhood is legalized and regulated by legislation.

However, in this process, numerous legal and ethical issues can arise, which become the cause of litigation, especially when it comes to the refusal of the surrogate mother or other complications related to the registration of parental rights.

Ukraine is one of the few countries where commercial surrogacy is allowed. The main provisions regarding surrogate motherhood are enshrined in the Family Code of Ukraine, the Law of Ukraine "On Health Protection", as well as in a number of by-laws.

In particular, Article 123 of the Family Code stipulates that in the case of the use of assisted reproductive technologies (ART), persons who have provided their genetic material are recognized as the parents of the child. This means that the couple who ordered the services of a surrogate mother are considered the parents of the child from the moment of its birth, even if the child was carried by another woman.

However, despite clear legal norms, situations often arise in practice when one of the parties violates the contract or refuses to fulfill its obligations. This can apply to both the surrogate mother and the biological parents.

Main problems and disputes

Surrogate motherhood is a complex process involving the interaction of many parties: surrogate mother, biological parents, medical institutions, lawyers.

Usually, the main disputes that arise in this area concern the following issues:

• Refusal of the surrogate mother to transfer the child to the biological parents. According to Ukrainian legislation, after the birth of the child, the surrogate mother does not have the right to keep the child for herself. However, there are times when she changes her mind and tries to leave the child, which leads to litigation. Although the law is on the side of the biological parents, legal proceedings can be lengthy, creating additional emotional and financial hardships for all involved.
• Refusal of the biological parents to accept the child. Sometimes the biological parents can abandon the child after its birth. The reasons can be different: from a change in family circumstances to dissatisfaction with the child's health. In such cases, the court can involve the state guardianship and guardianship authorities to resolve the issue of the future fate of the child.
• Uncertainty in the legal regulation of contractual relations. The legislation of Ukraine does not regulate contractual relations between the surrogate mother and biological parents in sufficient detail, which can lead to conflicts and litigation. In many cases, the parties turn to the court with a demand to recognize or challenge the terms of the surrogacy agreement, including the issues of financial payments, medical care and support for the surrogate mother during pregnancy.

Judicial practice and features of dispute resolution

Judicial practice in Ukraine shows the variety of disputes arising in the field of surrogate motherhood. Court decisions depend on the specific circumstances of the case, the existence of a properly concluded contract, compliance with all legal requirements and ethical norms.

One of the key aspects of the proceedings is determining the best interests of the child. Although the Family Code of Ukraine clearly establishes the priority of biological parents in the recognition of their parental rights, the court always takes into account whether the interests of the child are violated in a particular case. For example, in a case where the surrogate mother insists on keeping the child, the court can order examinations that will determine the genetic origin of the child and its condition.

The procedure for registering a newborn child is also important. In accordance with Ukrainian legislation, a child born through surrogate motherhood is registered in the RATS authorities on the basis of medical documents confirming the use of DRT and a contract between the biological parents and the surrogate mother. However, if the surrogate mother refuses to provide the necessary documents or does not appear for registration, this can create additional legal problems.

Ukrainian courts are mostly on the side of biological parents, because according to the law, they are the legal parents of a child born to a surrogate mother, provided there is a genetic connection.

In cases where the surrogate mother refuses to hand over the child, courts usually rule in favor of the biological parents, based on the terms of the contract and genetic tests.

Cases where the biological parents give up the child can lead to complex legal proceedings. Courts can involve guardianship authorities to decide the future fate of the child, as well as consider the issue of mandatory alimony.

Courts often consider disputes regarding the registration of a child if the surrogate mother or parents do not fulfill their obligations (do not provide the necessary documents). Such cases are resolved on the basis of medical documents and a contract.

Surrogate motherhood in Ukraine attracts foreigners, which sometimes leads to international lawsuits, when parents have difficulties with taking the child out of Ukraine or recognizing paternity in their country.

Courts often hear disputes over the terms of contracts between a surrogate mother and biological parents, including issues of financial payments, medical expenses, and the parties' responsibilities.

In each case, the courts take into account the interests of the child, conduct examinations and make decisions that protect the rights of the newborn, even if the parties are in conflict.

In order to avoid legal disputes in the field of surrogacy, participants in the process should follow a number of recommendations:

1. Clear execution of the contract. The contract between the surrogate mother and biological parents must be drawn up taking into account all possible risks and nuances. It is recommended to engage professional lawyers for the preparation of documents and consultations.
2. Compliance with legal requirements. The surrogate mother and biological parents must strictly comply with all legal requirements regarding the registration of the child, its genetic affiliation and other aspects of the process.
3. Ethical responsibility. Parties should remember that surrogate motherhood is not only a legal process, but also a moral responsibility. It is necessary to observe ethical standards and ensure that the rights of all participants, including the child, are respected.

Surrogate motherhood in Ukraine is a complex and multifaceted process that requires clear legal regulation and an ethical approach.

Litigation arising in this area mostly concerns the refusal of surrogate mothers or biological parents to fulfill their obligations, as well as imperfect legislation regulating contractual relations.

In order to avoid conflicts, it is necessary to improve the legal regulation of surrogate motherhood, as well as to ensure proper support of the process by lawyers and other specialists.