Russia’s aggression against Ukraine has significant human, material, social, environmental and cultural consequences. This tragedy affects women and children in particular and forces them to take to the streets. This includes pregnant Ukrainian women as a result of surrogate motherhood (GPA) and newborns as a result of this experience.
Ukraine is the main European center for surrogacy and the second largest in the world after the United States. The Russian occupation highlighted the cross-border experiences of surrogate mothers, the weakness of Ukraine’s trade network, and the vulnerability of the most vulnerable group: surrogate mothers and newborns. Lack of international regulation can lead to situations close to slavery in the context of war and disaster.
The concept of “pregnancy for others” implies the important participation of a woman carrying the child of another couple. What is replaced is not motherhood, but pregnancy as a biological process over time. Because motherhood is a never-ending physical, psychological, biological, chemical, and emotional process.
Therefore, surrogate motherhood is a process that uses a medically assisted generation (MAP) technique to support a woman (surrogate mother) who will terminate her pregnancy on a contract basis upon request. After birth, the baby must be handed over to a third party (intended parents). For this purpose, the surrogate renounces parental rights.
I study the debate between those who support the regulation of this practice and those who want it to be banned. I also report on the consequences of the lack of international rules, especially for the most vulnerable: surrogate mothers and babies in terms of respect for human rights.
How does the transnational industry work?
Initially, ancillary generation techniques were introduced to solve infertility problems. Today, its experience has grown exponentially and has become 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 experience of people trying to become parents by traveling outside their home countries to save on health costs or to access services that are illegal or not available in the country of origin.
Lack of a common policy of the European Union
There is no unified legislative response in this area at the European level. The European Parliament (2010, 2013, 2015, 2016 571368), 2018) and the Council of Europe (2016) have not come to official recognition or ban.
As a result, problems with the rights of “intended parents” seeking surrogacy outside their home countries, the rights of surrogate women, most of whom are third-country nationals, and other issues are in a kind of gray zone. protection of the interests of surrogate babies.
The differences in the legal status of surrogate mothers can be summarized in four positions:
Commercial and selfless;
This practice is banned in many European countries. In Spain, it is considered illegal, despite the criteria adopted by the General Office of Registration and Notary (Article 10 of the Law of 14/2006). In France, surrogacy was banned after a ruling by the Court of Cassation on 31 May 1991.
A specific case of Ukraine
Ukraine is characterized by legislation that allows for surrogacy in terms of motherhood, which makes it the first European space in this field. According to Nikolai Kuleb, the Ukrainian president’s commissioner for children’s rights, between 2,000 and 2,500 babies are born each year thanks to surrogate motherhood contracts. This is especially due to the fact that Ukraine is one of the countries that most effectively develops reproductive techniques at an internationally attractive cost and offers direct license guarantees to future parents.
The contract is concluded before a notary who verifies the contract consent, requirements and the cost of financial compensation, which is necessary for the surrogate mother. The agreement has legal significance, which implies a violation of the law, as the intended parents will also be considered for citizenship (part 2 of Article 123 of the Family Code of Ukraine).
The agreement also states that the surrogate agrees to give the newborn to the intended parents after birth, that no parental rights are acquired over the child, and that he has no right to challenge in court (Article 139). (2) Family Code of Ukraine).
How does the war affect this industry?
The daily life of Ukrainians was suddenly disrupted by the Russian occupation. All GPA clinics and agencies, which mainly accept foreigners, were also affected and closed. The media covering the conflict broadcast images of babies taking refuge in temporary maternity hospitals.
Prior to the occupation, there were more than 30 licensed surrogate maternity clinics in Ukraine. The most famous are the cities of Kyiv (19), Lvov (5) and Kharkov (2), the latter of which was particularly devastated by the war.
This obviously raises many questions: What happened after the new births? Have surrogate mothers been paid to use their bodies and reproductive abilities? What happens to babies in need of resuscitation? What if the birth is complicated and surrogate mothers have to have a caesarean section? What happens to babies in need of resuscitation?
In addition, clinics inform clients (prospective parents) that as long as the situation allows, pregnant mothers and babies will be able to move to the western border of the country to reach the meeting place of their choice. . Videos made by BioTexCom and posted on its website should be viewed very carefully, as they are very similar to human trafficking.
Why can’t future parents take their children to Ukraine? As a rule, babies are registered in the name of foreign parents, and the latter go to their diplomatic missions to obtain and issue a passport for the newborn.
However, due to the restrictions imposed by the war, prospective parents can no longer travel to Ukraine. As a result, infants are not protected by law, and national law requires the participation of biological parents to prove their citizenship.
In addition to the legal dispute that has already complicated the process, the fact that most consulates have to leave Ukraine has made it even more difficult to register a baby’s birth certificate, even though it is the main document for him to be able to leave. national territory.
Individual care and respect, or contract security?
Therefore, it is important to develop an international legal framework for surrogate mothers, which protects the basic rights of both the baby and the surrogate mother: newborns, as they are the object of the wishes of the intended parents, as well as the object of the contract. they rise to surrogate motherhood at the risk of disrespecting their best interests. And surrogate mothers, because in addition to the right to decide how to use their bodies, their dignity, freedom, integrity and free will must be ensured throughout the process (not just in the beginning), but also from them. health both during and after exercise.
If these conditions were not met, then they would be used as a means to an end. The control and domination that would aggravate them would constitute a modern form of slavery.