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The Features of Surrogacy Contracts

posted 9 years ago

The complexity of procedures for implementing
surrogacy requires fixing contractual relationships between the parties and fixing
the potential risks for each party.

When drawing up the contract of surrogacy,
unpredictable circumstances that could potentially occur, regardless of actions
of the participants of surrogacy, should be taken into account.

Terms
and conditions of the contract of surrogacy

The following cases should also be regulated by the
contract of surrogacy:

• the birth of several children by the surrogate
mother;

• having a child with disabilities, which is not
related to the behavior of surrogate mother during pregnancy;

• stillbirth or miscarriage occurrence;

• impossibility of pregnancy as a result of the full
cycle of procedures in relation to the surrogate mother;

• consequences in case of unsuccessful procedures
surrogate motherhood;

• the need for abortion according to the doctor`s
medical report;

• divorce of genetic parents;

• death of one or both genetic parents.

The parties of the future treaty also choose
institution where a medical examination, artificial insemination, medical
assistance will be conducted (provided).

Because of the existence of such a large list of essential
conditions that may affect the protection of the interests of future biological
parents and provide them with additional guarantees, during the procedure of
surrogacy, it is better to apply to qualified lawyers of «Aleksey Pukha and Partners», who will accompany you during the
process of drawing up and signing the necessary documents between all parties.

The
reasons for using surrogate motherhood

For the conducting the surrogacy certain conditions
should be available. According to the 
paragraph 6.1 section VI of the Order of the Ministry
of
 Healthcare of Ukraine “On
approval of the use of reproductive technologies in Ukraine” the necessary
conditions for surrogacy are:

• availability of medical indications for the surrogacy;

• documents necessary for the surrogacy;

• consort (or one of the parents), in whose interest
the surrogacy is conducted, must have
a genetic connection with the child;

• surrogate mother should not have a direct genetic connection
with the child.

Being surrogate mother for the parents, close
relatives (mother, sister, cousin, etc.) is permitted.

According to i.6.2.of the Order indications for surrogacy
are:

• absence of uterus (congenital or acquired);

• deformation cavity or cervix in congenital
malformations or due to surgery, benign tumors, at which prevent pregnancy;

• structural and morphological or anatomical changes
in the endometrium that leads to the loss of the receptivity, synechia of
uterus that are not treatable;

• serious physical illness, in which the pregnancy
threatens the future health or life of the recipient, but do not affect the
health of a child;

• failed repeated attempts of assisted reproductive
technology (4 or more times) during repeated obtaining high quality embryos,
the transferring of which did not lead to pregnancy.

For the surrogacy, the surrogate mother must submit
the following documents:

• the statement of the surrogate mother of the
agreement on the surrogacy project;

• copy of surrogate mother`s passport;

• copy of marriage certificate or divorce of the
surrogate mother (except for single women);

• copy of the birth certificate of the child (children);

• consent of the husband of the surrogate mother for
her participation in the surrogacy according to the form (except for single
women).

In turn consort, in whose interest the surrogacy is conducted, provide:

• Statement of patient / patients about the use of
reproductive technologies;

• copies of passports;

• copy of the marriage certificate;

• notarized copy of the written agreement of joint between
surrogate mother and wife (husband) or consort.

The
choice of medical institution

An important aspect of a successful outcome of
surrogacy is to choose medical institution, in which the assisted reproductive
technology program will be used. That`s why considerable attention should be
given to the process of finding the medical institution. According to
paragraph. 1.4. of the Order, assisted reproductive technologies should be used
in health care institution (HCI), licensed to the implementation of economic
activity in medical practice, with appropriate facilities and equipment used in
this procedure. For health care institutions that engaged in medical practice
for more than two years, also requires accreditation certificate. Assisted
reproductive technology procedures performed in health care institutions that
have medical personnel according to the staff list approved in health care and
medical equipment. 

Accordingly, after the selection of medical institution was
made, between it and members of assisted reproductive technologies (couple and
the surrogate mother) the treaty which provides medical services should be
concluded.

Registration
of a child from surrogate mother

After the birth, using surrogacy raises an important
question – registration of child. Questions regarding registration of child are
regulated by p.6.9. of the Order: in the case of giving birth by the woman, in
whose body human embryo, conceived by the couple, as a result of assisted
reproductive technologies was moved, state registration of birth of a child is
made after the request of the couple, which gave consent to such transfer.

In this case, along with a document confirming that
some woman gave birth to a child, the application of her agreement to record the
couple as the parents of the child, the authenticity of the signature on the
application must be notarized and a certificate of genetic relationship of
parents (mother or father) with child. Furthermore, in the column «for
marks” the birth record should be noted, “the mother of the child in
accordance with the medical certificate of birth is a citizen (surname, proper
name, father’s name)” and shall include:

• the name of the institution that issued certificate

• date of issue and the number

• notary data (name and initials, county or notary
public notary)

• the date and the number under which the authenticity
of the signature certified women was registered in the application of her
agreement to record the couple as the parents of the child.

If the biological parents – foreigners, they should
contact the embassy (consulate) of the state to register the birth of a child,
if it is provided by the law of their country. Then parents need to get a
passport and / or visa for a newborn baby at the embassy (consulate) of the state.

Despite the ambiguous society`s attitude towards
surrogacy, though the phenomenon is gaining significant popularity as a way of
procreation and the remedy against infertility. Therefore, the need of a singular
legislation is becoming more acute, because the certain aspects of surrogacy
contract which are unregulated can lead to serious property or non-property
losses. It is therefore appropriate is creation of comprehensive legal act on
the regulation of social relations that arise in the application of assisted
reproductive technologies.

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