Surrogate mothers and surrogate babies at risk

The Russian invasion of Ukraine has significant human, material, social, environmental and cultural consequences. This tragedy particularly affects women and children, forcing them into a great exodus. This includes pregnant Ukrainian women as a result of surrogacy (GPA) and newborns resulting from this practice.

Ukraine is considered the main European surrogacy center and the second largest in the world after the United States. The Russian invasion has highlighted cross-border practices related to surrogacy, the weakness of Ukraine’s trade network, and the vulnerability of the most exposed group: surrogate mothers and newborns. The lack of international regulation can lead to slave-like situations in war and disaster contexts.

The concept of ‘pregnancy for others’ implies an essential involvement of the woman carrying another couple’s child to term. What is replaced is not motherhood, but pregnancy as a biological process over a period of time. Because motherhood is a physical, psychological, biological, chemical and emotional process that has no expiration date.

Therefore, surrogacy is the process that employs medically assisted reproduction (MAP) technology and assists, through a contract, a woman (the surrogate mother) to carry a pregnancy to term if she so chooses. After birth, the baby must be handed over to a third party (the intended parents). To this end, the surrogate waives her parental rights.

I study the debate between those who want to regulate this practice and those who want to ban it. I also report on the consequences of the lack of international regulation, particularly with regard to respect for the human rights of the most vulnerable: the surrogate mother and the baby.

How does transnational industry work?

In the beginning, assisted fertilization technology was presented as a way to solve infertility problems. Today, his practice has grown exponentially, morphing into a transnational macro-industry.

The development of specialized centers in different countries has increased reproductive tourism or cross-border reproductive care. Reproductive tourism refers to the practice of those wishing to become parents to travel outside their country of origin in order to save on healthcare costs or to access a service that is illegal or unavailable in their country of origin.

Lack of a common policy among the states of the European Union

There is no uniform legislative response in this area at European level. The European Parliament (2010, 2013, 2015, 2016 571368), 2018) and the Council of Europe (2016) have not come to any formal recognition or a ban.

As a result, there is something of a gray area about the rights of “intended parents” who seek surrogacy outside the borders of their country, the rights of surrogates, the vast majority of whom are third-country nationals, and issues of protecting the best interests of surrogacy babies.

The diversity of the legal status of surrogacy can be summarized in four positions:

  1. Commercial and altruistic;

  2. Only altruistic;

  3. express prohibition;

  4. Not regulated.

This practice is banned in many European countries. In Spain it is considered illegal (Article 10 of Law 14/2006), despite the criteria established by the General Directorate of Registers and Notaries. In France, surrogacy has been banned since the Court of Cassation decided on May 31, 1991.

The specific case of Ukraine

Ukraine is characterized by permissive legislation regarding surrogacy, which has made it the first European destination in this field. According to the Ukrainian President’s Envoy for Children’s Rights, Mykola Kuleb, between 2,000 and 2,500 babies are born every year thanks to surrogacy arrangements. In particular, this is explained by the fact that Ukraine is one of the countries that have most effectively developed reproductive technology, at an attractive cost at the international level and by providing guarantees of direct descent for future parents.

The contract necessary for surrogacy is concluded before a notary who verifies the consent, the conditions and the value of the financial compensation. The contract has a legal value that provides descent, since the intended parents are also considered as such for civil status (Article 123 (2) of the Family Code of Ukraine).

The agreement also provides that the surrogate mother agrees to deliver the newborn to the intended parents after birth, that she does not acquire parental rights over the child and that she does not have the right to challenge it in court (Article 139(2) of the GDPR). Family Code of Ukraine).

How is the war affecting this industry?

The daily life of Ukrainians was suddenly disrupted by the Russian invasion. All the surrogacy clinics and agencies that mainly take in foreigners have also been affected and disrupted. Media covering the conflict circulated images of babies being placed in makeshift mother houses.

Before the invasion, there were more than thirty licensed surrogacy clinics in Ukraine. The best known are Kyiv (19), Lemberg (5) and Kharkiv (2), with the latter city being particularly badly damaged by the war.

This, of course, raises many questions: What happened after the reincarnations? Were surrogates paid to use their bodies and fertility? What happens to babies who need intensive care? What if the birth is complicated and the surrogate mothers have to undergo a cesarean section? What happens to babies who need intensive care?

In addition, the clinics inform their customers (future parents) that as long as the situation allows, they can bring pregnant mothers and babies to the western border of the country so that they arrive at the meeting point chosen by the customers. The videos produced by BioTexCom and posted on their website should be examined very carefully as what is shown closely resembles human trafficking.

Why can’t expectant parents pick up their children in Ukraine? Normally, babies are registered in the name of the foreign intended parents and they go to their diplomatic missions to register and process the newborn passport.

GPA in Ukraine: a couple tells about their return to France (BFMTV, March 29, 2022).

However, due to the restrictions imposed by the war situation, expectant parents can no longer travel to Ukraine. As a result, babies are not protected by law as national legislation requires birth parents to be present to confirm their nationality.

In addition to the already aggravating legal battle, the fact that most consular posts had to leave Ukraine makes it even more difficult to register the baby’s birth certificate, although it is an important document for leaving the national territory.

Care and respect for the individual or contractual guarantee?

There is therefore an urgent need to develop an international legal framework for surrogacy that protects the fundamental rights of both the baby and the surrogate mother: those of the newborn, since they are the object of the intended parents’ desire, but also the object of a contract fulfillment ascension to Surrogacy, with the risk that her best interests will not be respected. And those of surrogate mothers, because in addition to the right to make decisions about their own bodies, their dignity, freedom, integrity and free will must also be guaranteed throughout the process (not just at the beginning) and their health during and after training.

If these conditions are not met, they are used as a means to an end. The control and domination that would rest upon them would constitute a contemporary form of slavery.

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