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Problems at the level of court practice in surrogacy

by Shown Lordies

During the last several years, the court practice of Ukraine has encountered cases of establishing the maternity relationship between foreign fathers and a child born to a surrogate mother. At first glance, there is no need to go to court to establish such a legal fact, because according to the provisions of Article 123 of the Family Code of Ukraine the foreign spouses can be considered as equal parents of the child born through a surrogate mother.

However, in some European countries, such as Germany, Spain, and Great Britain, there is a legal requirement that a court decision confirming parental relations must be obtained in the country where the child is born. Without this, biological parents cannot legalize their maternal relationship with their child and register their child in the country of their citizenship.

Based on the logic of Ukrainian procedural law, such cases should be dealt with following the rules of civil procedure in a separate proceeding. Article 315 of the Code of Civil Procedure of Ukraine provides for the list of facts that have legal value and can be recognized by the court. This list is not exclusive, so the Ukrainian court may also recognize the fact of the existence of consanguinity between foreign friends and their biologically related child born in Ukraine by a surrogate mother.

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Indeed, the Register of Court Decisions contains enough examples of positive court decisions in which the existence of family ties was established without any problems. At the same time, we faced this problem in practice. There are examples of inaccurate use and/or interpretation by the courts of legislative norms that lead to violations of the rights of the child and parents.

For example, the decision of the Solomyanskiy District Court of Kyiv in case #760/26991/19 returned the application for recognition of the legal fact to the applicants (Spanish nationals) because, in the opinion of the court, there was a dispute of law and the application should be considered under the rules of the complaint procedure. Given the presence in the case file of a notarized consent from the surrogate mother for the registration of the applicant’s friends as the child’s parents and confirmation of the surrogate mother’s lack of any claims or rights to the child, such a finding by the court is likely to be chibious.

The Court of Appeals reversed the district court’s ruling and remanded the case for further proceedings. The Court of Appeals noted that the district court’s reference to the existence of a dispute of law as a ground for refusal to open the case and the need to consider this claim under the complaint procedure is inconsistent, as the determination of the maternity relationship between the child and the applicants is not related to the subsequent resolution of the dispute between the applicants and the applicant and the surrogate mother, which is confirmed by a notarized certified statement of the latter. The current legislation of Ukraine does not provide for any other procedure for establishing such a fact, and the current legislation of Spain allows for the registration of paternity for a child born through surrogacy, subject only to the presence of a court decision on the establishment of the fact of the child’s birth in the country of origin.

Thus, the proceedings, in this case, have already lasted for over 10 months. Given the shortened timeframe set by the CPC of Ukraine for the consideration of individual cases, due to the significant workload of the district and local courts, the consideration of cases of recognition of family ties can last from 3 months or more. Because of this before the court decision, the foreign friends cannot register their children in the country of their citizenship and fully exercise their parental rights, which inevitably violates their rights and negatively affects the image of Ukraine as a whole.

The issue of the legalization of the legal status of a child born by a surrogate mother has already been discussed in the decisions of the European Court of Human Rights (hereinafter referred to as the European Court of Justice). Following the case-law of the European Court of Justice, Art. Article 8 of the Convention requires that national legislation provides for the possibility of recognizing a legal relationship between a child born under a surrogate motherhood arrangement abroad and an expectant parent if he or she is a biological parent. The absence of such a possibility entails a violation of the child’s right to respect for private life, guaranteed by Article 8 of the Convention.

In the decision in the case of Mennesson v. France (No. 65192/11) due to the absence of two children born in California, following the treaty on gestational surrogacy, The European Court of Justice found a violation of the children’s right to respect for their private life (Article 8 of the Convention on the Rights of Persons with Disabilities). 8 of the Convention).

In this case, the European Court of Justice stated that respect for privacy requires that everyone be able to establish the components of his or her human personality, including disputed identity, which is an important component of the identity of an individual, including the legal father-child relationship.

The European Court of Justice considers that the general and absolute lack of possibility to obtain recognition of the relationship between a child born following the surrogacy agreements, The Court has held that the best interests of the child, which require that each situation be considered in light of the particular circumstances of the case, are irreconcilable with the best interests of the child.

On 10.04.2019, the European Court of Justice issued an advisory opinion on the request of the French Court of Justice to recognize in national law the legal relationship between parents and a child born abroad, following the treaty on gestational surrogacy.

In the conclusion, the European Court of Justice stated that the right to respect for private life of a child born abroad following the treaty on gestational surrogacy requires, That national law may provide for the possibility of recognizing the legal relationship of a parent-child between an expectant mother designated as a “legal mother” on a birth certificate officially issued overseas.

Synopsis

Surrogacy is the last hope for many families in the world for having a child and the joy of parenthood. The fact that today Ukraine is one of the countries that allow surrogacy programs, offers quality medical services at a reasonable cost, and has a more child-friendly law (as an example, in Russia surrogate mothers may not give the child to the fathers, because, according to the law has a priority right and is considered the mother of the child, as long as not waive their rights), should be an incentive to further develop this area in our state. An important prerequisite for such development is the adoption of a comprehensive law on RTD, which regulates the cramped conditions that currently create conditions for possible frauds. Adoption of the law will have a positive impact, including on the economic development of Ukraine, and will ensure the enhancement of Ukraine’s authority on the world market of reproductive services.

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