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Lack of regulation and COVID-19 leaves Ukrainian surrogate mothers and babies in limbo

The closed borders and restrictions on movement introduced in 2020 due to the spread of the COVID-19 pandemic added uncertainty to the already unregulated sphere of surrogate mothering in Ukraine, leading to questionable decisions on continuing to provide services.

December 24, 2020 - Kate Baklitskaya Magdalena Chodownik - Hot TopicsStories and ideas

Babies in Kyiv born in a surrogate programme wait to be picked up. Photo: Kate Baklitskaya

While surrogate mothers, babies and biological parents are left in limbo, the Ukrainian Government has not rushed to give legal ground to the commercial surrogacy industry booming in the country. This has led to illegal steps taken by agencies, such as moving Ukrainian surrogate mothers across the border to Poland and arranging childbirth inside the EU, making it simpler for European couples to take the new-borns home and harder for the surrogate mothers to protect their rights.

Long-standing problem

The footage of the 46 surrogate babies stuck in BioTexCom Ukrainian clinics during the first wave of the COVID-19 lockdown caused an outcry and a wide public discussion. Ukrainian President’s Commissioner for Children’s Rights Mykola Kuleba went as far as calling for a ban on surrogacy, stating that it violates children’s rights and contributes to the uncontrolled sale of Ukrainian children abroad. The public discussion helped to bring to the public eye a problem that had already existed in Ukraine for quite some time.

At the end of April, Ukrainian Deputy Minister of Internal Affairs Anton Gerashchenko also acknowledged that surrogate mothering is not regulated in Ukraine. According to the official, the law enforcement officers tracked a group of people who flew at least 150 babies from Ukraine to China using forged documents and claiming them to be part of a surrogacy programme.

“It is not directly prohibited by law, and therefore everything happens under a civil contract, the execution of which is directly controlled by its parties. Even notarization of such an agreement is not required … Ukraine should not become a semi-legal ground for trafficking children,” Gerashchenko said.

The Ministry of Internal Affairs has called for the parliament to give legal ground to surrogacy and to regulate all aspects by law.

“If so, then it is necessary to adopt a law on surrogate motherhood, which should provide for the necessary measures to protect the rights and interests of all parties, and most importantly, a new-born child,” stressed the Deputy Minister.

Surrogate mothers

“I was a surrogate mother”, 39-year-old Anna [name changed] working with BioTexCom tells us. She has asked to remain anonymous. “I helped a family, and it was the sixth time they tried to have a child. And now they are happy.”

Being a single mother of two, Anna gave birth to a surrogate child last year and would like to have another baby through a surrogate programme to support her own children.

“I’m very glad I could help the family. But I would not lie. I needed the money. And I was worried that they would not pay me and would not take the new-born baby if something goes wrong. I’ve heard that happens. Of course, I would keep the baby, but what would I do with three children?” shared Anna, who believes the law could help protect the surrogate mothers as well as babies and parents.

Anna took the contract she was signing with BioTexCom to the lawyer to see if her rights were protected, but she still believes it would be very hard for her to get any help if something had gone wrong. “The contract that I signed was very detailed. I asked many questions. But I know that not all contracts are like that, and many women don’t understand the details and sign whatever they are given to sign. But it’s actually the surrogate mother who risks the most, and she should be protected,” concludes Anna.

Surrogate tourism

COVID-19 added uncertainty to the way surrogate pregnancies are handled. After the spring lockdown, Ukrainian reproductive clinics, fearing the borders will close again, started to advertise their proximity to Poland. Despite Ukrainian agencies and clinics denying the fact of moving Ukrainian surrogate mothers across the border to Poland, local journalists and activists have reported several such cases.

One of them is Warsaw’s Medicover clinic, where Ukrainian surrogate mothers arrived in her last month of pregnancy accompanied only by a “translator” presented to the clinic’s medical staff.

“Medicover Hospital is one of the largest private clinics in Poland, our services are chosen by many patients of various nationalities. Each of them receives the highest quality care while respecting the patients’ rights and the law. This applies in particular to the right to privacy – the patient is not obliged to provide details unrelated to his health. At Medicover, we strive every day to provide all patients with the highest quality healthcare. It is our ethical and legal duty to serve any person who comes to our facility and needs medical attention,” says Justyna Rzymńska-Bociong, Director of Communication and Corporate Brand Healthcare Services at Medicover.

“These girls often appear out of nowhere, with no medical records, so there are no traces of their pregnancy, but also that it is not known if it was IVF,” says Jakub Korus, a Polish journalist who reported on this topic. “From what the surrogates told me, many of these pregnancies were, however, supervised in Kyiv, and many of them were in vitro fertilization.”

According to the journalists who studied these cases in Poland, the so-called translators would guard Ukrainian women, follow them everywhere, tell them what to say, or pretend they do not understand the language. The “translator” would even be allowed in the delivery room, which made their role go beyond helping a foreigner sustain communication and more like a middleman.

These Ukrainian mothers stay in the hospital for only two days, sometimes three, if there are complications. The biological parents would already be waiting in Warsaw. They come from different countries and different backgrounds – married couples, singles, and of different ages. The hospital sends documentation to the local Registry Office and the parents have 21 days to register the child. Yet, the authorities do not check who is registered as parents. No one keeps track and knows whether it is the same woman who gave birth. The biological parents can take the baby and leave the country without any checks due to no borders within the EU.

Since surrogacy is forbidden in Poland, there is no legislation to regulate such processes, which leaves mothers and new-borns with close to zero protection and no way to assure their well-being.

“Giving out a child without judicial control should be prohibited by law,” says Katarzyna Ciulkin–Sarnocińska a lawyer specialising in family law.

Legal regulation in Ukraine

Commercial surrogacy is illegal in most European countries but is allowed in Ukraine, which became the last hope for many Europeans longing to become parents.

After Ukraine closed its borders due to the COVID-19 epidemic in mid-March, more than 100 surrogate babies were left stranded across the country. The children were due to be collected by their parents from France, Italy, Spain and the United Kingdom. And while the situation was resolved with each individual family, the industry did not get the main answer – how will it be regulated in the future?

Ukrainian authorities still do not have a clear standpoint on surrogate mothering. It is regulated only by Article 123 of the Family Code of Ukraine, which stipulates that the parents of a child born of a surrogate mother are spouses, whose biological material was used for fertilization.

“The issue of surrogate motherhood has required legal regulation for a long time. We have legislation, but it is not enough when it comes to the responsibility of the so-called agencies who provide the services. For instance, what happens when unforeseen situations arise? Reproduction very often does not give a one-hundred-percent guarantee. And all this needs to be regulated,” says human rights activists and lawyer Oksana Pokalchuk, who’s been providing legal assistance to surrogate mothers.

“Surrogacy is a reproductive technology. We see a lot of emotions around this topic because it is complex and ambiguous. But when we think of the legal framework, we must put feelings aside and think of it as a technology applied by many people,” continues Pokalchuk, noting that if banned, commercial surrogacy will not disappear. It would just become even less regulated, thus creating more difficulties for all parties. “In Ukraine, surrogate mothers are paid for their services, but we must understand that a surrogate mother should be provided not only with money, but with a full range of services so that the experience is not traumatic,” Pokalchuk concludes.

Lack of regulation in Poland

Korus suspects that such precedents have been taking place in Poland for years. Polish law, however, does not regulate the issue of surrogacy, providing a lot of room to avoid the legal system or stretch its existing provisions. Therefore, Poland has become an attractive country in terms of surrogate tourism. Polish lawmakers were questioning whether such practices could fall under human trafficking or illegal adoption rules. However, on November 20th 2019, art. 211 of the Penal Code, § 2 entered into force, ruling up to five years of imprisonment for those giving a child into adoption to for financial gain. The law instantly turned Ukrainian surrogate mothers giving birth in Poland into criminals if caught.

However, this change in the law applies to a situation where the parents waive their rights to the child to deliver it under a previously concluded surrogacy contract.

Human trafficking or willingness to help?

Surrogacy is a controversial topic. For one party, it might be the only way to have a biological child, while for the other, it is a way to gain some income. As the procedure involves money, many consider it ethically questionable or even unacceptable.

“In my opinion, making a child an object of a commercial transaction degrades its dignity. His life is valued at a certain amount of money, which should be considered unacceptable,” argues Ciulkin–Sarnocińska. “The surrogate contract covers the creation of a new life, established under the contract. Thus, if the contract had not been concluded beforehand, the child would not have been born. It is, in a way, a reality created for the needs of the performance of the contract. The above leads to the degeneration of the law by accepting that by ‘creating’ a new life, one acts only and exclusively to ensure the best conditions for the child’s development. It is completely forgotten that if the contract had not been concluded, there would be no need to change the family in which the child is to be brought up.”

A procedure where there is no control over who and why adopts a child leaves a lot of space for speculation and concern. “First, it is largely a violation of Ukrainian law. This is extending the Polish law to its limits, which in this case is very imperfect. There is no control over it. I want to believe that these children end up in good families, and I would like to believe that these girls [surrogate mothers] knew what they have agreed to,” Korus says.

Polish activists and lawyers often refer to German law when addressing the issue, which fines the so-called agencies or middleman rather than the surrogate mothers or biological parents. However, it does not change the fact that there are still no regulations that would sufficiently secure the procedure and guarantee the safety and the rights of the child, surrogate mother, and biological parents.

“Undoubtedly, it requires a legal regulation because of what is happening outside the law, what is happening under the carpet, provides ground for abuse. Therefore, the legal standards have to be adjusted to it,” concludes Joanna Garnier from La Strada Poland, an international network fighting against human trafficking.

This piece was supported by a grant from Journalismfund.eu.

Kate Baklitskaya is a freelance journalist specialising in the post-Soviet space. She has been reporting for international media outlets including Daily Mail, Euronews, Siberian Times, amongst other. She is based between Kyiv, Moscow and Chisinau.

Magdelena Chodownik is a Polish freelance journalist, photographer and producer.

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