Surrogacy in Ukraine

Not long after the Russian attacks on Ukraine started, the Swiss National Science Foundation (SNSF) launched a call to Swiss universities to suggest Ukrainian scholars who could spend a one-year stay in Switzerland. Their guest stay is funded by Scholars at Risk, a worldwide network that helps researchers and scientists who find themselves in danger – as a result of persecution or war, for example. Thirty-six higher education institutions, universities of applied sciences and universities in Switzerland take part in Scholar at Risk, including UZH.

The interdisciplinary University Research Priority Program Human Reproduction Reloaded / H2R (URPP H2R) was able to arrange for the Ukrainian lawyers Dr. Kateryna Moskalenko and Dr. Oksana Kashyntseva to come to UZH for a guest stay. They enrich the URPP H2R interdisciplinary research team that broadly explores the societal implications and legal challenges of reproductive medicine, in particular the subject of “commercial” surrogacy in Ukraine. 

Kateryna Moskalenko

Dr. Kateryna Moskalenko is an Associate Professor at the Civil Law Department of Education and Scientific Institute of Law of Taras Shevchenko National University of Kyiv and attorney at law specializing in the legal aspects of surrogacy.

Oksana Kashyntseva

Dr. Oksana Kashyntseva is co-head of the Center for Harmonization of Human Rights and head of the Department of Human Rights at the National Academy of Law Sciences of Ukraine. She also participates in various working groups on the reform of the Ukrainian health care system; among other things, she is co-developing a new Public Health Strategy 2030 for the Ukrainian parliament and is involved in the drafting of a specific law on medically assisted reproduction.

UZH News met with the two Ukrainian scholars to discuss their research.

How do you feel here in Zurich, working with researchers at the URPP Human Reproduction Reloaded?

Kateryna Moskalenko: I arrived in Zurich on 11 April, so I already had the chance to meet the team of the URPP H2R and to participate in very interesting and fruitful events within this project. Since I’m writing my habilitation on reproductive rights, it’s a huge opportunity for me to be involved in this research program. The facilities are great, I have access to a fantastic library, and I can take part in projects led by professionals from not only the legal field but also with expertise in ethnography, ethics or sociology. For me, looking at the topic from different perspectives is a very valuable experience. I am very happy and thankful for the grant.

Oksana Kashyntseva: So am I, thank you very much for the invitation to the URPP Human Reproduction Reloaded. Even though I’ve only been here for two weeks, I have already been a part of very interesting discussions, which is very useful for me, because I am a member of a similar working group in our parliament, in the committee of public health.

On 31 May, you will both give a lecture at UZH on the use of assisted reproductive technologies such as surrogacy in Ukraine. What is your main message here?

Kateryna Moskalenko: I will speak about the legal aspect of surrogacy in Ukraine. For now, the legal framework in my home country is very liberal. But we have gaps in our legislation: we don’t have a special law dedicated to the rights relating to medically assisted procreation yet, and I will cover the existing framework and discuss the drafts of law on human reproduction that were submitted to the Ukrainian parliament in late 2021 and early 2022. I will also discuss the legal gaps and present court cases, as well as the current state of surrogacy during the war.

Oksana Kashyntseva: My open lecture will be about the ethical and legal aspects of medically assisted procreation, or ART (assisted reproductive technologies), through the prism of their perception by Ukrainian society, which is not very religious but, as you can see, very focused on non-violation of human rights.

What is it like to be working as a scientist in Zurich while Putin’s army is attacking your homeland?

Kateryna Moskalenko: For me, to be honest, it was a very difficult decision to come to Zurich. Even when it was announced that I had won the scholarship, I hesitated about whether or not I should go. But my family wanted me to be safe, and they convinced me to come here because it’s a great professional opportunity, and if it were a peaceful time, nobody would hesitate to work at the University of Zurich.

But it’s important to me that I still hold classes at the Taras Shevchenko National University of Kyiv. I think it’s my main patriotic duty now to keep the students busy, to inspire them and maybe also to distract them from the war. More than half of them attend the classes, and they are eager to study, they are prepared, they are motivated. I think that they have found their purpose in studying, even during the war, and I think that’s very good. I am also involved in a few humanitarian volunteer movements, so when people ask me to help I always do, as a lawyer, organizer or project manager. Now, I try to contribute to helping Ukraine from here, as much as I can.

Oksana Kashyntseva: For me, coming to Zurich was also the most difficult decision of my life. Before I came here, I tried to help in a hospital in Lviv, but I don’t have the necessary skills and there are many volunteers who can do such work better than I can. I’ve kept in touch with my students and PhD students in our institute in Kyiv, though. I hope that I can pass the new insights I gain here on to my students. The war is really a big challenge for them, they’re currently trying to write their papers, and I hope I can support them from here. And in the future, I plan to bring my experience at UZH back to Ukraine. I hope it could be my small but useful contribution to Ukrainian legal studies.

In Ukraine, if you are a married heterosexual couple who can’t conceive, you can assign a surrogate mother to bear your child. Is surrogacy widely accepted in society?

Oksana Kashyntseva: In Ukraine, surrogate motherhood is accepted because it has become a very common field of reproductive medicine with lots of experience which has been developed since the declaration of Ukrainian independence. So, we have a lot of expertise in areas such as the procedures of reproductive medicine and surrogacy. Of course, there are objections from the representatives of different churches. But as regards the rest of society, I have never encountered serious concerns. Before the war, there were even state budget programs for interested couples who wanted to reproductive medicine procedures.

“An important argument in Ukraine
in favor of commercial surrogacy
revolved around keeping
the reproduction medicine market transparent.”
Kateryna Moskalenko
 

In Switzerland, surrogacy is prohibited. What were the arguments in favor of allowing commercial surrogacy in Ukraine?

Kateryna Moskalenko: I started thinking about commercial and unpaid altruistic surrogacy because in most European countries, only altruistic surrogacy is legal. The arguments in Ukraine in favor of commercial surrogacy revolved around keeping the reproduction medicine market transparent, protecting the child, the intended parents and the surrogate mother, and also providing access to a broader choice of surrogate mothers. If we had allowed only altruistic surrogacy, the choice of surrogate mothers would really have been limited to relatives or close friends. Our observations show that surrogate mothers don’t always participate in surrogacy programs only for the money, they often really want to help the couples to bring their genetic child into the world. So there were no reasons to reject this idea.

Nevertheless, comparing the influence and power of the intended parents and the surrogate, one should observe that surrogate is the weaker part of the surrogacy program, because of social and financial inequalities. Such imbalance should be improved by adoption of a special law which prescribes and protects the interests and rights of the surrogate.

Oksana Kashyntseva: I worked as a legal representative of intended parents, and after 10 years of experience in protecting the rights of my clients, I can say that often surrogate mothers and intended parents keep very nice, warm and close relations after their child is born. They are tied together for months and sometimes for years by their common experience. Important arguments in Ukraine for commercial surrogacy have come also from physicians and doctors. They emphasize that the risks of the involved parties – clinics, surrogate mothers, intended parents – in assisted reproduction treatment should be mitigated by access to insurance.
 

“In Ukrainian legal doctrine,
we view surrogacy as a method of treatment,
not as a service to be purchased.”
Oksana Kashyntseva

Isn’t surrogacy in Ukraine mainly used by rich foreign couples …?

Oksana Kashyntseva:  … Please don’t think that surrogacy in Ukraine is only used by rich couples. There are also middle-class couples who turn to surrogacy because they really want to have a child. And for the surrogate mothers, it’s not only a commercial task; there is also a social motivation to enable parenting to others who can’t. In Ukrainian legal doctrine, we view surrogacy as a method of treatment, not as a service to be purchased. There are clearly defined medical indications for it: absence of the uterus, and cases in which a pregnancy would pose a direct threat to the life and health of the prospective mother due to preexisting health conditions.

Oksana Kashyntseva, you are co-developing a new Public Health Strategy 2030 for the Ukrainian parliament and you are involved in the drafting of a specific law on medically assisted reproduction. What is your main advice to the government in relation to surrogacy?

Oksana Kashyntseva: There has to be a separate special law on ART. Everybody should have access to reproductive medicine procedures, regardless of their social status, gender or sexual orientation. The rights of the surrogate mother need to be defined and protected by law, and there ought to be mandatory insurance for all medical risks.