“Ukraine became one of the centers of commercial surrogacy” — such a strong statement was announced by the Prosecutor General Yuriy Lutsenko on July 16 at a briefing in Kiev. He reported that workers of the State Office of Public Prosecutor have found out the criminal scheme which included Ukrainian clinic BioTexCom and it was involved in the organization of surrogacy.
“After acceptance by India authorities the decision about the ban of commercial surrogacy, the center of such activity was focused also in Ukraine. We are one of the largest operators of this unregulated business in our country now” — Lutsenko told.
He said that spouses from Italy, using counterfeit documents, issued themselves as the parents of newborn baby in Ukraine and in 2011 took a baby away to Italy. The clinic received 32000 Euros for such actions, surrogate mother — 6000 Euros. The fact of obtaining false data on a baby origin was found by Italy law enforcement authorities. The baby was transferred to orphanage and the family was brought to justice Italy under laws. Reported to the representative of BioTexCom about commission’s suspicion of criminal offense under the article “About Human Trafficking”, and the chief physician of establishment for forgery. Such crimes provide for the punishment from 8 to 15 years with confiscation of property. Besides, Lutsenko told, that the clinic has already made many surrogacy operations without legal rights. Also citizens from other countries came to clinic. When a surrogate mother gave birth to a baby they came back home and scandals occurred because of incorrect documents.
The next scandal with BioTexCom clinic made active discussions around surrogacy in general. More than ten years in Ukraine programs of surrogacy exist, but laws which accurately would regulate this activity are not present. Like organ transplantation, for Ukraine this topic is very resonant: as soon as it becomes known of the next scandal, some suggest prohibiting surrogacy, others insist on changes in laws.
Laws — are not ideal, control is not enough
Now the state has no mechanism of controlling the surrogacy programs, Sergey Antonov, the lawyer practicing in area of the medical and reproductive right and the president of “All-Ukrainian Fund of the Companies from Organizational Legal Support of the ART Programs” Association says. And meanwhile the sphere makes multimillion profits, the majority of which are shadow means which are brought to the offshore and in Ukraine are not assessed with a tax.
“Scandals arise because activity of intermediaries is not regulated in any way. BioTexCom is even not a clinic. It is actually the center of surrogacy. There is even no treatment of infertility per se, and the conveyor of surrogacy programs for foreigners is realized. I do not know as society in general will react when it would realize the real situation in this sphere because there are scandals which do not reach media. They are hidden because they frighten off clients at once and will cause more scandals. The state does not control it in any way and now actually nobody checks clinic because the moratorium works. Everything was more or less quiet by 2006-2007 and then intermediaries between clinics, surrogate mothers and families, generally foreigners who want to become parents came to the sphere. The status and activity of intermediaries, and most of them are foreign in our country in general is not regulated in any way” — the lawyer Antonov says.
Five various laws
Now in Ukraine there are five various laws by the help of which we want to regulate the sphere.
The first —law amending to some acts of Ukraine (concerning protection of the children rights while using auxiliary reproductive technologies — 8625). It was given by people’s deputies Oksana Bilozir, Irina Sisoyenko and Nikolay Lavrik.
The law managed to cause a lot of noise, aiming to forbid use of all treatment techniques of infertility for foreign citizens except those who constantly live in the territory of Ukraine. Also there is a suggestion for them to enter a concept of compulsory use of woman for transfer of an embryo for the purpose of a baby’s birth. If it will be voted for the law, it is punished by the criminal legislation. But, as experts say, usually the woman agrees for surrogacy voluntarily. First of all, of course, for earnings therefore here you should not speak about coercion.
“Whether will it solve problems? It is unlikely. But it will stop medical tourism. It will be loss for economy of Ukraine because foreigners leave money here” — Valery Zukin, the director of reproductive clinic of “Nadiya”, the vice president of the Ukrainian association of reproductive medicine considers.
The second — document “About realization of the reproductive rights and an auxiliary reproduction of the person”. It is offered by All-Ukrainian fund of the companies from organizational legal support of programs ART (auxiliary reproductive technologies) which included generally intermediaries.
They want to impose licensing for intermediaries —centers of surrogacy. Also to create public authority which will control everything. The law exists since 2011. It is going to be finished and submitted to VR at the end of August, 2018. The law is called liberal, it does not provide the bans and restrictions for foreigners on use of ART methods in Ukraine.
One more law “About Auxiliary Reproductive Technologies” (8629) is offered by the Ukrainian Association of Reproductive Medicine (UARM) where most clinics which are engaged in it are included. It was registered in VR on July 19 this year. The law regulates separate practical aspects of ART: terminology of surrogacy, embryo, genetic parents, legal regulation of all techniques of ART etc.
The fourth — the law on modification of Principles of the legislation on health protection (on prevention of patients discrimination using auxiliary reproductive technologies). It was given by the People’s Deputy Vitaly Kupry. The law is registered in VR on August 1, 2018 and offers the equal rights of use of auxiliary reproductive technologies both for foreigners and for citizens of Ukraine.
The fifth – the law “About Assisted Reproductive Technology” is also introduced by the deputy Kupry. If now only married couples can use programs of surrogacy under the law, then it suggests to remove this restriction that also spouses who are not married could use them.
“Surrogacy takes a specific place from all methods in most clinics”
Trend of the last years is liberalization of the legislation after surrogacy in the world. In particular, in Israel adopted this law which allows using surrogacy services to lonely women. But for Ukraine it is so far very far prospect, experts say. In our country it is allowed only for couple who is in official marriage. Such principle protects the interests of a baby that it could grow in full family. Now similar issues are discussed in Spain, France, but it contradicts Catholic psychology of these countries: there a woman who gave birth to the baby is considered a mother. In Spain there is a procedure of adoption after surrogacy.
According to Elena Babich — the lawyer specializing in the medical right, the order of MPH of Ukraine No. 787 regulates the sphere of surrogacy enough. But unregulated there is a legal status of a surrogate mother, genetic parents, donors of reproductive cells. It has to be regulated at the level of the law. Now it actually remains as contractual relations. Also genetic parents are under a certain risk. It is necessary that all participants of legal relationship will be protected, the lawyer says.
“Today there is an opinion that Ukraine is “Mecca” of surrogacy in the world. Though actually surrogacy is only one of techniques of infertility treatment. It takes not the key place among others” — Elena Babich says.
“Surrogacy takes the last place from all methods in most clinics. Even if to assume that somewhere some figures forgot to specify in reports even if to increase up to 5-6%, all the same there is no talking about Mecca. Nobody wants to turn Ukraine into Mecca of surrogacy. We speak about regulation of laws” — Alexander Yuzko, the doctor of medical sciences, the head of the department of obstetrics and gynecology of the Bukovina state medical university, the president of the Ukrainian Association of Reproductive Medicine (UARM) says.
But the lawyer Sergey Antonov does not agree with such thoughts. According to him, Ukraine just is also Mecca for those who want to have children and decided to use services of surrogate mother. It was forbidden in India and Thailand therefore foreigners began to go to us. Surrogacy, on the contrary, occupies primary activity in many clinics of Ukraine and makes million profits, he says.
“Our clinics do not want to provide official statistics. The fact that it occupies a small percent is an absolute lie. In the same scandalous BioTexCom 14 programs are declared officially, and about one thousand babies are given birth! The cost of the standard surrogacy program for foreigners — about 40,000 Euros. Major customers of clinics — foreigners, and Ukrainian clients — no more than 10%” —Sergey Antonov expresses opinion.
According to him when India became Mecca of surrogacy, only 10 years later they began to adopt laws which regulated it.
“Ukraine is not India. We have a legislation. It is only necessary to improve and regulate some problematic issues” — Antonov emphasizes.
The world notices achievements of Ukraine
Now more than ever it is necessary to create positive image of Ukraine in the sphere of surrogacy in Ukraine because scandals will not promote it, Valery Zukin says.
“Foreigners go to Ukraine not only for surrogacy. They go also for high technologies, I tell it without exaggeration. Achievements of the Ukrainian specialists are one of the best in the world. I am proud of it. Since 1999 when in the world began to maintain the corresponding register, it was recorded the births of 54 thousand babies after use of auxiliary reproductive technologies. During this time seven million such babies were born. Ukraine takes really worthy place in many indicators” — he says.
According to Zukin, Ukrainian specialists on introduction of some advanced methods are only in the world. In particular, the first time applied a method of pro-nuclear transfer. On January 17, 2017 scientists and doctors of “Nadezhda” clinic declared the birth in Ukraine of the first-ever child after pro-nuclear transfer. A baby “from three parents” — from mother, father and donor. This event was noticed and now discussed in the scientific world.
With the help of the innovation method of pro-nuclear transfer the 34-year-old woman who had infertility more than 15 years in January, 2017 gave birth in Kiev to the healthy baby, genetically biological with her husband. The essence of a method is that to the patient is transferred her nucleus and the spouse’s to a donor ovum which was deprived from a nucleus. As a result received the “reconstructed” ovum which had a genetic set of nuclear DNA from mother and father (about 25.000 genes) and cytoplasmatic DNA from donor (37 genes), that is the baby has “three parents”. It became a major medical breakthrough and a world innovation.
“There are also other publications of our specialists, notices the world. Also there was a publication about creation of polar little bodies for creation of new embryos. These are the latest technologies which are of particular interest among world specialists and special respect for our specialists” — Valery Zukin says.