Contracts in Reproductive Medicine Clinics and Surrogacy Agencies

A legal guide from Dextralaw Law Firm | Ukraine and international context

Reproductive Medicine: Why Contracts Matter More Here Than Anywhere Else

Reproductive medicine is the only field where the outcome of a medical service is a human life. A contract in this area does not merely govern the provision of services — it determines who the child’s parents are before the child is even born. A documentation error can leave a child stateless, parentless, or at the centre of an international legal dispute.

Ukraine is one of the few countries where commercial surrogacy is permitted by law. More than 500 children are born annually through surrogacy programmes here, a significant proportion for foreign couples. However, legislation provides only a basic framework — detailed regulation is left to the agreement between the parties.

“In reproductive medicine, the contract is not a safety net — it is the foundation. It determines the fate of an unborn child, the rights of three or more parties, and crosses national borders and legal systems. No other field of medicine carries this level of legal density.” — Reproductive Law Attorney, Dextralaw

⚖ Art. 123(2) of the Family Code of Ukraine: Where an embryo is transferred into another woman’s body, the child’s parents are the married couple.

⚖ Art. 48 of the Law “Fundamentals of Healthcare Legislation”: Every adult woman with legal capacity has the right to artificial insemination and embryo implantation.

Legislative Framework: Ukraine

Surrogacy has been legal in Ukraine since 2004 (entry into force of the Family Code). Key legislative acts:

1. Family Code of Ukraine — Art. 123 (determination of parenthood in ART), Art. 139 (prohibition on surrogate mother contesting maternity)
2. Civil Code of Ukraine — Art. 281(7) (right to ART), Art. 290 (right to dispose of reproductive cells), Ch. 63 (service agreement)
3. Law of Ukraine “Fundamentals of Healthcare Legislation” — Art. 48 (artificial insemination), Art. 39–43 (informed consent, medical confidentiality)
4. MOH Order No. 787 dated 09.09.2013 (as amended 29.01.2025) — Procedure for ART: Section V (donation), Section VI (surrogacy), Section VII (cryopreservation)
5. Law of Ukraine “On Personal Data Protection” — Art. 7 (medical data as a special category)
6. Law of Ukraine “On State Registration of Civil Status Acts” — Art. 13 (birth registration)
7. Rules on State Registration of Civil Status Acts (Ministry of Justice Order No. 52/5) — Para. 11, Ch. 1, Sec. III (registration of a child born via surrogacy)
8. Criminal Code of Ukraine — Art. 140 (negligent performance of duties by a medical professional), Art. 145 (disclosure of medical confidentiality), Art. 149 (trafficking in persons)

International Instruments and ECtHR Case Law

Surrogacy is not regulated at the level of international law. However, the case law of the European Court of Human Rights has established key principles:

• Mennesson v. France (2014) — The ECtHR held that France’s refusal to recognise the genetic father’s paternity in relation to children born via a California surrogate violated Art. 8 of the Convention. The child has a right to identity.
• Paradiso and Campanelli v. Italy (2017) — The Grand Chamber held that where no genetic link exists and national law has been violated, the removal of a child does not breach Art. 8.
• C. v. Italy (2023) — The refusal to recognise parenthood of a child born via a Ukrainian surrogate violated the child’s right to private life. The child was rendered stateless.
• UN Convention on the Rights of the Child (1989) — Art. 7 (right to a name and nationality), Art. 8 (preservation of identity), Verona Principles (2021) — principles for the protection of children born through surrogacy.

Contracts for a Reproductive Medicine Clinic

The complete document package without which an ART clinic cannot operate legally:

Document	Purpose	Legal basis
ART services agreement	Core document between the clinic and patients: subject matter (IVF, IUI, ICSI), scope, cost, timelines, rights and obligations of the parties.	Art. 901–907 CCU; MOH Order No. 787 dated 09.09.2013
Informed voluntary consent to ART	Patient consent to a specific programme: IVF, donation, surrogacy. Risks, alternatives, limitations.	Art. 43 Law “Fundamentals of Healthcare”; Annexes 1–5 to MOH Order No. 787
Surrogacy agreement	Between the married couple and the surrogate mother: gestation conditions, remuneration, handover of the child, liability, procedure in case of complications.	Art. 123(2) Family Code of Ukraine; Section VI of MOH Order No. 787
Consent to personal data processing	Medical, genetic, and biometric data of patients, donors, and the surrogate mother.	Law “On Personal Data Protection” No. 2297-VI, Art. 6, 7
Oocyte / sperm donation agreement	Anonymity terms, donor medical screening, waiver of parental rights, compensation.	Section V of MOH Order No. 787; Art. 281(7) CCU
Cryopreservation agreement	Storage of embryos, oocytes, and sperm: duration, cost, disposition of material in the event of divorce or death.	Section VII of MOH Order No. 787; Art. 901 CCU
Employment contract / NDA with medical staff	Employment terms plus confidentiality obligations regarding patient, donor, and programme data.	Labour Code of Ukraine; Art. 40 Law “Fundamentals”; Art. 145 CCrimU
Insurance agreement	Health insurance for the surrogate mother; professional liability insurance for the clinic.	Law of Ukraine “On Insurance”; CCU Ch. 67

Surrogacy Programme-Specific Documents

In addition to standard medical agreements, a surrogacy programme requires supplementary documents, most of which must be notarised:

Document	Purpose	Critical because…
Surrogate mother’s husband’s consent	Notarised written consent from the surrogate’s husband to her participation in the programme (if she is married).	Without this consent, the husband may contest paternity and block the handover of the child.
Genetic relationship certificate	Confirms the genetic link between the married couple (or one of them) and the child.	Mandatory for birth registration. Without it, a birth certificate cannot be issued.
Surrogate mother’s notarised declaration consenting to registration of parents	The surrogate mother formally consents to the married couple being recorded as parents on the birth certificate.	Without this document the civil registry office will refuse registration. For foreign nationals, it is required by the embassy.
Apostille / consular legalisation of marriage certificate	Legalisation of a foreign marriage certificate for use in Ukraine.	Without an apostille, the civil registry will not accept foreign documents. A separate risk applies to countries that have not signed the Hague Convention.
Agreement with surrogacy agency	Governs the relationship between the agency, the clinic, and the couple: coordination, surrogate selection, legal support.	An agency has no medical licence — clearly delineating medical from non-medical services is critical to avoiding liability.

“The most common mistake is when an agency takes on functions that belong to the clinic or the lawyer. The agency coordinates the process, but it has no medical licence and cannot sign informed consent forms. Defining roles clearly in contracts is a matter of legal safety for all parties.” — Medical Law Advocate, Dextralaw

Working with Foreign Nationals: Key Risks and Requirements

Foreign couples are the primary client base for Ukrainian ART clinics and surrogacy agencies. However, working with them involves specific legal risks that do not arise with Ukrainian nationals.

Jurisdictional Conflicts

The central problem: surrogacy is prohibited in most EU member states (France, Germany, Italy, Spain, Poland). This means that even if a child is born in Ukraine and holds a Ukrainian birth certificate listing the genetic parents — the embassy of the parents’ home country may refuse to issue travel documents for the child.

To resolve this, foreign parents are typically forced to apply to a Ukrainian court via separate (non-contentious) proceedings to establish the fact of family relationship. Ukrainian courts have consistently ruled in favour of intended parents (cases No. 628/834/18, No. 645/6571/18), but the process takes time — during which the child remains in legal limbo.

What Must Be Addressed in Agreements with Foreign Nationals

• Legal review of the parents’ home country legislation before the programme commences
• Document legalisation mechanism: apostille (Hague Convention 1961) or consular legalisation
• Translation and notarisation of all documents into Ukrainian
• Step-by-step child registration procedure: civil registry → embassy → obtaining passport or travel document
• Clinic/agency responsibility for legal support through to the child’s departure from Ukraine
• Force majeure: contingency procedures in the event of embassy refusal, martial law, or exit restrictions
• Separate escrow account for financial security in the event of programme delays

⚖ Art. 8 ECHR: Right to respect for private and family life. The ECtHR requires national law to ensure recognition of the child–genetic father relationship.

SOPs and Personal Data Protection in a Reproductive Medicine Clinic

Critical SOPs

1. Biological material identification SOP: labelling, dual verification of oocytes, sperm, and embryos. An error is catastrophic (see Paradiso and Campanelli case)
2. Cryopreservation SOP: temperature monitoring, log maintenance, thawing procedure, patient notification
3. Donor management SOP: anonymity protocols, medical screening, genetic screening, informed consent
4. Child handover SOP: notary presence, document signing, civil registry procedure
5. Personal data processing SOP: access to genetic information, storage of embryo images, data destruction
6. Embassy liaison SOP: document packages, timelines, country-specific requirements

Personal Data Protection

An ART clinic processes the most sensitive categories of personal data: genetic information, reproductive health data, and information about donors and surrogate mothers. Article 7 of the Law “On Personal Data Protection” classifies this data as a special category subject to heightened processing requirements.

Particular risks: a breach of donor data can result in the violation of anonymity (breach of the donation agreement + Art. 145 CCrimU); a breach of foreign parents’ data can expose them to criminal prosecution in their home country where surrogacy is prohibited.

Case Studies: When Contracts Save You — and When Their Absence Destroys You

Case 1. French Couple and Embassy Refusal

⚠ Situation: A French married couple entered into a surrogacy agreement with a Ukrainian clinic. The child was born and received a Ukrainian birth certificate. However, the French Embassy refused to issue travel documents: surrogacy is prohibited in France, and the law recognises the woman who gave birth as the mother. The child remained in Ukraine for 4 months with no possibility of departure.

⚖ Legal basis: A conflict between Art. 123(2) of Ukraine’s Family Code (parents are the married couple) and Art. 311-19 of the French Civil Code (the mother is the woman who gave birth). The ECtHR’s ruling in Mennesson v. France requires recognition of the genetic father’s link to the child, but not the genetic mother’s.

❌ Outcome: The parents applied to a Ukrainian court to establish family relationship. The court granted the application after 2 months. On the basis of the court ruling, the embassy issued a travel document. Total delay: 4 months; additional expenses: over EUR 8,000. A properly drafted contract should have anticipated this scenario and included legal support through to departure.

Case 2. Mislabelling of Genetic Material

⚠ Situation: An ART clinic made an error in embryo labelling. The child born via surrogate had no genetic connection to either of the intended parents (an Italian couple). A post-birth DNA test confirmed the absence of any genetic relationship.

⚖ Legal basis: Analogous to the facts of Paradiso and Campanelli v. Italy — the Grand Chamber found that without a genetic link and where national law was violated, removal of the child did not breach Art. 8 ECHR. In Ukraine, this constitutes a violation of Art. 140 CCrimU and licensing conditions.

❌ Outcome: The child was placed in guardianship. The clinic lost its licence. Criminal proceedings were brought against the embryologist. The parents filed a claim for full reimbursement of programme costs (EUR 55,000) plus moral damages. A dual-verification SOP for biological material would have prevented this tragedy.

Case 3. Surrogate Mother Refuses to Relinquish the Child

⚠ Situation: A surrogate mother who had carried a child for a Ukrainian couple refused after delivery to sign the notarised declaration consenting to the registration of the genetic parents. She stated she had “changed her mind” and wanted to keep the child.

⚖ Legal basis: Under Art. 123(2) of the Family Code, the married couple are the parents. Art. 139(2) of the Family Code expressly prohibits the surrogate from contesting maternity. However, without the notarised declaration, the civil registry refuses registration — creating a procedural deadlock.

❌ Outcome: The genetic parents applied to court. The court confirmed their parenthood on the basis of the surrogacy agreement and the genetic relationship certificate. The process took 3 months. A well-drafted contract with a clear handover procedure and financial penalties for breach would have prevented the situation or resolved it significantly faster.

Case 4. Child Born with a Disability: Parents Refuse to Accept

⚠ Situation: A foreign couple (from China) commissioned a surrogacy programme in Ukraine. The child was born with a congenital heart defect. The parents refused to take the child, stating that “this was not what they paid for.” The agency had not addressed this scenario in the contract.

⚖ Legal basis: Ukrainian law contains no explicit provision imposing an obligation on genetic parents to accept a child born with a disability. However, under Art. 123 of the Family Code they are the legal parents from the moment of birth. Refusal is grounds for a claim to protect the child’s rights under the UN Convention on the Rights of the Child (Art. 2, 3, 7, 23).

❌ Outcome: The child was placed under temporary guardianship. The prosecutor’s office opened a pre-trial investigation. The agency is covering medical costs. The contract must include a clause that genetic parents are obligated to accept the child regardless of health status. This is the standard applied by leading clinics.

Case 5. Oocyte Donor Data Breach

⚠ Situation: A nurse at an ART clinic disclosed to a third party information about an anonymous oocyte donor: her name, photograph, and contact details. The information reached the biological child born using those oocytes. The donor filed a complaint and a civil claim.

⚖ Legal basis: Violation of Art. 7 of the Law “On Personal Data Protection” (processing of health data without legal basis), Art. 40 of the Law “Fundamentals of Healthcare” (medical confidentiality), Art. 145 CCrimU (criminal liability). Also: breach of the donation agreement’s anonymity terms.

❌ Outcome: Administrative fine on the responsible individual (UAH 8,500). Criminal proceedings under Art. 145 CCrimU. Donor’s moral damages claim: UAH 200,000. The clinic lost the trust of its donor pool. A proper data processing SOP combined with an NDA for all staff would have prevented this.

“International surrogacy is a legal minefield. A child can be left stateless, parents can face criminal prosecution in their home country, and a clinic can lose its licence. The only way to navigate this field safely is to have an impeccable document package prepared by lawyers who understand both Ukrainian law and international law.” — Senior Partner, Dextralaw

Dextralaw: Legal Support for Reproductive Medicine

Law firm Dextralaw has deep expertise in reproductive law and offers clinics, agencies, and parents:

• Drafting of a complete contract package for ART clinics and surrogacy agencies
• Legal support for surrogacy programmes for Ukrainian and foreign couples
• Legal review of the parents’ home country legislation before the programme begins
• Court establishment of parenthood for foreign nationals
• Development of SOPs and personal data protection systems
• Support for child registration at civil registry offices and embassies
• Defence against claims, MOH inspections, and criminal proceedings

Free consultation on reproductive law:

dextralaw.com | info@dextralaw.com

Protect the child’s rights before they are born.