Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
Recibido el 02/08/22 Aceptado el 15/11/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 40, Nº 75 (2022), 180-197
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Analysis of court decisions in cases on
provision of in vitro fertilization services
in Ukraine and Europe
DOI: https://doi.org/10.46398/cuestpol.4075.12
Volodymyr Kossak *
Alla Herts **
Mykola Stefanchuk ***
Svitlana Senyk ****
Inna Zaitseva-Kalaur *****
Abstract
The main reason for the rapid development and promotion
of reproductive technologies is the desire to have children of
people who, for certain reasons, create such an opportunity.
When writing the article, such methods were used as: historical,
analysis, synthesis, systemic, functional, special-legal. It is argued
that two types of reproductive technologies are of particular importance
for medical law: in vitro fertilization and surrogacy. It is argued that
such reproductive technologies as in vitro fertilization are an auxiliary
introduction of donor material (sperm or egg) into all forms of a woman.
It is also noted that not all researchers today support and consider optimal
the formulations established in the main legislative acts of Ukraine on
health care, regarding the right of every woman capable of fertilizing and
implanting an embryo. The conclusions emphasize the importance of
providing legislative guarantees for the possibility of introducing certain
reproductive technologies for people who need such interventions for
medical reasons. It is proposed to classify the principles of donation of
reproductive cells such as sperm, oocytes and embryos. For this purpose,
court rulings in cases involving the provision of in vitro fertilization services
were also analyzed.
* Doctor in Law, Full Professor, Head of Civil Law and Legal Proceedings Departament Ivan Franko
National University of Lviv, Lviv, Ukraine. ORCID ID: http://orcid.org/0000-0002-8698-7461
** Doctor in Law, Full Professor, Professor of Civil Law and Legal Proceedings Department Ivan Franko
National University of Lviv, Lviv, Ukraine. ORCID ID: http://orcid.org/0000-0002-3310-3159
*** Doctor in Law, Full Professor, Honored Lawyer of Ukraine, Leading researcher of Department of
Private Law Problems, Academician F.H. Burchak Scientic Research Institute of Private Law and
Entrepreneurship of the National Academy of Legal Sciences of Ukraine. ORCID ID: http://orcid.
org/0000-0002-2983-2770
**** Ph.D. in Law, Associate Professor of Civil Law and Legal Proceedings Department Ivan Franko National
University of Lviv, Lviv, Ukraine. ORCID ID: http://orcid.org/0000-0003-3492-5282
***** Ph.D. in Law, Associate Professor of Civil Law and Legal Proceedings Department West Ukrainian
National University, Ternopil, Ukraine. ORCID ID: https://orcid.org/0000-0001-5924-5844
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Vol. 40 Nº 75 (2022): 180-197
Keywords: reproductive technologies; surrogacy; donor; recipient; court
rulings.
Análisis de las decisiones judiciales en casos sobre
la prestación de servicios de fertilización in vitro en
Ucrania y Europa
Resumen
La razón principal del rápido desarrollo y promoción de las tecnologías
reproductivas es el deseo de tener hijos de personas que, por ciertas
razones, crean tal oportunidad. Al escribir el artículo, se utilizaron métodos
tales como: histórico, análisis, síntesis, sistémico, funcional, especial-
legal. Se argumenta que dos tipos de tecnologías reproductivas son de
particular importancia para el derecho médico: la fertilización in vitro y la
maternidad subrogada. Se fundamenta que tales tecnologías reproductivas
como la fertilización in vitro son una introducción auxiliar de material
donante (esperma u óvulo) en todas las formas de una mujer. Se indica
además que no todos los investigadores hoy apoyan y consideran óptimas
las formulaciones establecidas en los principales actos legislativos de
Ucrania sobre el cuidado de la salud, con respecto al derecho de toda mujer
capaz de fertilizar e implantar un embrión. En las conclusiones se enfatiza
en la importancia de brindar garantías legislativas para la posibilidad de
introducir ciertas tecnologías reproductivas para personas que necesitan
tales intervenciones por razones médicas. Se propone clasicar los
principios de donación de células reproductivas como espermatozoides,
ovocitos y embriones. Para ello, también se analizó sentencias judiciales en
casos de prestación de servicios de fecundación in vitro.
Palabras clave: tecnologías reproductivas; gestación subrogada;
donante; persona receptora; sentencias judiciales.
Introduction
Medical science and practice have made signicant progress over the
last decade. New technologies used in medical practice directly aect
health care and human life, which is the highest social value in the state in
accordance with the Art. 3 of the Constitution of Ukraine (Teremetskyi et
al., 2019). Reproductive technologies, which have been recently developing
particularly rapidly is a good example. The main incentive for such a rapid
development and spread of this type of technology is the desire of people to
have children deprived of such an opportunity for some reasons.
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Analysis of court decisions in cases on provision of in vitro fertilization services in Ukraine and Europe
Reproductive function with the use of medical technologies is a trend
characterized by striking roots and continuous development in society
(Tarasevych et al., 2022). Unfortunately, not everyone can enjoy being a
parent, since about 20% of couples in Ukraine suer from infertility. There’s
no question, they have to ght for the opportunity to become parents.
Modern medicine can signicantly increase the likelihood of pregnancy
(Kushnirenko, 2018). For such category of individuals, reproductive
technologies can be a lifeline that can make them feel what it is like to be a
mother or father.
Legal precedents of extracorporal fertilization services are illustrative
in this respect. Analysis of the precedents shows the court’s consistent
adherence to the essential purpose of any proceedings in court, as well
as of civil Justice Department in general, namely the protection of rights,
freedoms, and legal interests of individuals, legal entities, and the state
through a fair, impartial, and timely consideration and resolution of a court
case.
Therefore, judicial agencies are an important subject for ensuring
the realization of medical rights by citizens, since, pre-trial settlement
of medical disputes (appeal to state authorities or local self-government
agencies, self-defense) as practice shows, is less eective than judicial
protection (Teremetskyi and Muliar, 2020).
1. Methodology of the study
The following methods were used in this scientic article: logical
analysis, inductive, comparative-legal, logical, systemic-structural analysis,
special-legal.
The method of logical analysis was used in the study of court decisions
in cases regarding the provision of in vitro fertilization services in Ukraine.
The inductive method made it possible to obtain the necessary knowledge,
going from individual to general. With the help of the comparative legal
method, an analysis of the legislation of Ukraine and foreign countries,
which regulates the conclusion and execution of contracts on the provision
of in vitro fertilization services, was carried out, which allows to identify
gaps in the civil legislation of Ukraine, to resolve the issue of using foreign
experience.
The method of system-structural analysis served to clarify the place of
contracts for the provision of in vitro fertilization services in the general
contractual classication and allowed to identify problematic aspects of
the practice of application based on the study of case law materials in the
form of court decisions. The application of a special legal method made it
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possible to investigate the interpretation of the content of contracts on the
provision of in vitro fertilization services using legal terminology.
The theoretical basis of the study was the work of domestic and foreign
civilian scientists, specialists in the eld of medical law.
The use of the above-mentioned methods in a complex was aimed at the
most objective and accurate study of the specied problem. The research of
the given problem was carried out through the prism of the combination of
contractual freedom with normative regulation, which contributes to a more
complete and adequate regulation of certain relations that are formed in
the process of concluding contracts on the provision of in vitro fertilization
services. In the process of research, theoretical approaches and practical
conclusions were used, which were embodied in the works of domestic and
foreign scientists.
2. Results and Discussion
2.1. Legal principles, study of doctrinal teachings and study of
foreign experience regarding the conclusion of contracts for in
vitro fertilization services
An invention is the result of a person’s intellectual activity in any eld
of technology, in particular in medicine, which has novelty, inventiveness
and industrial applicability. Types of inventions in medical practice are
methods of human treatment; devices for human treatment and diagnosis;
medicinal products; strains of microorganisms used for disease diagnosis or
human treatment; biotechnological inventions (Teremetskyi et al., 2019).
Reproductive technologies are methods of infertility therapy in which
some or all of the stages of conception and early fetation take place outside
the body. Order No. 787 of the Ministry of Health of Ukraine On Approval
of the Procedure for the Application of Assisted Reproductive Technologies
in Ukraine dated September 9, 2013 (hereinafter referred to as Order No.
787 of the Ministry of Health of Ukraine) (Order No. 787, 2013) denes the
concept of “assisted reproductive technologies” as a treatment of infertility
in which reproductive cell manipulation, some or all stages of reproductive
cell preparation, fertilization and fetation processes are carried out in vitro
before being transferred to the patient’s uterus.
As has rightly been pointed out by R. A. Maidanyk:
Reproductive technologies are modern high-tech methods of treatment of
infertility, in which some or all stages of conception and early fetation are carried
out outside the body, in particular, ovum fertilization in vitro, implantation of
embryos, and carrying of pregnancy if these processes can’t happen biologically
(Maidanyk, 2013: 5-6).
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Analysis of court decisions in cases on provision of in vitro fertilization services in Ukraine and Europe
Ukraine is one of the countries in which assisted reproductive
technologies are permitted at the legislative level. Thus, Art. 290 of the Civil
Code of Ukraine (hereinafter referred to as the CC of Ukraine) guarantees
the human right to donate reproductive cells (hereinafter referred to as
DRC); in particular, a provision of Part 7 of Art. 281 of the CC of Ukraine
entrenches the right to have DRC, stating, “Adult women or men have
the right, based on medical necessity, to undergo treatment programs of
assisted reproductive technologies in accordance with the procedure and
conditions established by the law” (Civil Code of Ukraine, 2003).
Fundamentals of the Law of Ukraine on Health Care dene in Art. 48
that at request of able-bodied women, methods of assisted insemination and
embryo implantation may be applied (Fundamentals of the Law of Ukraine
on Health Car, 1992). The conditions for the lawfulness of implementation
of these methods of medical intervention according to the law are as follows:
• The subject of exercise of the right is an able-bodied adult woman.
• Written consent of the spouses.
• Donor condentiality.
• Medical condentiality.
Today, there are numerous types of DRC in the world used to treat
infertility. The eectiveness of extracorporal fertilization (the proportion
of patients who became pregnant on the rst try) averages 45%; the gures
dier signicantly in dierent countries. For example, in Ukraine, it is 35%;
in Poland – 55%; in Germany – 38%; in Israel – 46% (Medical tourism:
how to choose a clinic abroad, 2013).
Analyzing the content of Order No. 787 of the MOH of Ukraine, we can
conclude that the following varieties of assisted reproductive technologies
are used in Ukraine:
1. In vitro fertilization. It is a method of infertility treatment in which
ovum fertilization is carried out outside the woman’s body. It is also
called extracorporal fertilization or assisted insemination.
2. Intrauterine insemination. It is a form of infertility treatment and
can be carried out by injection of prepared sperm cells into the
uterine cavity during ovulation.
3. Donation of gametal cells or embryos. It is a procedure in which
donors donate, based on a written and voluntary consent, their
gametal cells – gametes (semen, oocytes) or embryos for otherwise
use in the treatment of infertility.
4. Surrogacy. It is one of the types of infertility treatment.
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5. Transfer of gametes, zygotes, or embryos to the fallopian tube
(GIFT, ZIFT, and EIFT), etc. (Holovashchuk, 2012).
At the same time, the legislation of some countries places restrictions on
certain types of reproductive technologies. For instance, Italian legislation
on assisted reproductive technology is rather conservative. Italian Law
No 40 On the Rules of Assisted Reproductive Technologies dated February
19, 2004, not only forbids utterly surrogacy but also substantially restricts
other reproductive technologies. This Law prohibits reproductive programs
involving a third party, i.e., surrogacy and donation (Dzhochka, 2007).
Instead, in 2016 the British Human Fertilisation and Embryology
Authority (HFEA) approved giving birth to children by one man and
two women, which, in their opinion, will prevent the birth of children
with incurable hereditary diseases (BBC, 2016). In germany, austria, and
switzerland, egg donation is prohibited; in turkey, one cannot choose the
gender of the unborn child, while in cyprus, one can (Medical tourism: how
to choose a clinic abroad, 2013).
2.2. Analysis of legislative provisions and court practice in the
form of court decisions regarding the conclusion of contracts
for extracorporeal involvement services
Two varieties of reproductive technologies are of particular importance
to medical law: extracorporal fertilization and surrogacy. Such reproductive
technology as in vitro fertilization is the assisted injection of donor material
(semen or oocyte) into the genital tracts of a woman.
Not all researchers nowadays support and consider optimal the
formulation, presented in the fundamentals of the legislation of Ukraine on
health care, of the right of every able-bodied woman to assisted insemination
and embryo implantation. It is important to provide legal guarantees for the
possibility of implementing certain reproductive technologies for people
who actually require such interventions on medical grounds.
The analysis of Order No. 787 of the MOH of Ukraine makes it possible
to determine the following grounds for the validity of application of these
reproductive methods:
1. Assisted insemination is carried out exclusively in accredited health
care institutions according to the methods approved by the MOH of
Ukraine.
2. Written consent of the spouses.
3. Use of sperm of both the husband and the donor. Donor semen is
only used cryopreserved and not earlier than 3 months after the
donor’s blood has been sampled and re-examined for AIDS.
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Volodymyr Kossak, Alla Herts, Mykola Stefanchuk, Svitlana Senyk y Inna Zaitseva-Kalaur
Analysis of court decisions in cases on provision of in vitro fertilization services in Ukraine and Europe
4. Sperm donors can be healthy men aged 20–40 years who meet
clearly dened requirements, in particular: 1) have undergone a
full examination; 2) have fertile sperm; 3) are not vehicles of HIV
infection and hepatitis B virus; 4) had no urological, venereal,
andrological, and hereditary diseases. In this respect, it should be
noted that in practice, there are cases where assisted insemination
is carried out without prior examination of the donor, which is a
violation of both medical and legal requirements.
For example, Solomianskyi District Court of Kyiv considered Case
No. 760/12830/13 involving a claim by PERSON_1 against Nadiya Clinic of
Reproductive Medicine Limited Liability Company, third party PERSON_2,
for termination of the contract and recovery of funds. The plainti gave
as a reason for the claim that on April 2, 2012, spouses PERSON_2 and
PERSON_1 and Nadiya Clinic of Reproductive Medicine LLC entered
into Contract No 12314 for in vitro fertilization (IVF) and transfer of the
embryo(s) into the uterine cavity (UC). He paid the defendant a total
amount of UAH 25,400, which is conrmed by the receipts available.
The defendant was aware that such treatment was possible only in the
absence of contraindications to the patient’s DRC if diagnostic ndings
were available. The patient was not sent for such diagnostic examination.
Contraindications, which were later found in his state of health, namely
hepatitis B, made it impossible to full the contract. He considers that the
defendant’s negligence led to early entering into the impugned contract,
but his oer to terminate the challenged contract and to refund was not
accepted.
The court found that Section 2 of the Instructions on the Procedure
for Application of Assisted Reproductive Technologies, approved by
Order No. 771 of the Ministry of Health of Ukraine dated December 23,
2008, determined the scope of examination for persons undergoing DRC
treatment. Clause 2 of the Section provides that the scope of examination of
a man is mandatory and consists of blood test for syphilis, HIV, hepatitis B
and C; spermogram.
In such circumstances, the court considers that the requirement of a
compulsory examination of a man, in particular, for hepatitis B before
treatment, is statutory. In violation of requirements of the Instruction,
Nadiya Clinic of Reproductive Medicine LLC did not carry out such
mandatory actions. In connection with this court decision dated October
4, 2013, claims for termination of Contract No 12314 dated April 2, 2012,
entered into by and between Nadiya Clinic of Reproductive Medicine
Limited Liability Company and PERSON_1, PERSON_2 for in vitro
fertilization (IVF) and transfer of the embryo(s) into the uterine cavity (UC)
were satised (Case No 760/12830/13).
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5. Consent to be a sperm donor is conrmed by a letter of voluntary
consent to sperm donation.
6. Taking into account indications (of the wife, husband, spouses) for
application of methods of assisted insemination and implantation of
the embryo(s) and contraindications to application of these methods
to the recipient.
Principles of donation of such reproductive cells as sperm, oocytes, and
embryos are:
1. Medical condentiality, namely:
1.1. Donor condentiality.
1.2. Condentiality of information regarding the fertilization procedure
itself. It should be noted that Order No. 787 of the MOH of Ukraine
provides for the procedure of coding and marking of semen in order
to ensure the condentiality of both the donor and recipients but
states that the established code is entered into the individual donor
card and the outpatient’s card of the recipient. Then the question is,
how to ensure the principle of preservation of medical condentiality,
guaranteed by the standard setter, in this context, as it is not dicult
to establish the identity of the codes in the above cards.
2. Awareness, i.e., the husband and wife are entitled to information,
including medical information, on the ndings of the donor’s medico
genetic examination, his looks, nationality (if donor sperm is used
for fertilization), etc.
3. Donor and recipient voluntary involvement:
3.1. Volunteer men are involved in donation.
3.2. Assisted insemination is carried out at the request of a woman.
4. Selection of semen for fertilization, namely:
4.1. The married couple’s wishes regarding the nationality of the donor
and the main features of his appearance are taken into account.
4.2. The compatibility of the donor with the recipient by blood type,
rhesus factor, and main features of the body type of the donor are
taken into account (Stetsenko, 2008).
One of important aspects in the legal regulation of the issue under study
is the determination of the age limit for persons who may be subjected to
DRC. Currently, the use of assisted reproductive technologies in Ukraine
is allowed for persons who have reached the age of 18 years, but no upper
age limit has been established beyond which DRC is not applied. Such a
necessity is, rst of all, aimed to protect the interests of the unborn child,
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Analysis of court decisions in cases on provision of in vitro fertilization services in Ukraine and Europe
since it would be dicult for prospective parents at a suciently mature
age to take good care of the child.
A factor of reduction of their social activity should also be taken into
account. For example, in the Republic of Belarus, extracorporal fertilization
and assisted insemination do not apply to a patient who has reached 50
years of age. We believe that a 49-year age limit for women has to be also
established in Ukraine. Because according to medical data, a woman’s
child-bearing (fertile) age can last up to the said age.
An important issue in the legal regulation of DRC is the requirement for
prospective parents to be married when undergoing the DRC program. In
Ukraine, there is no actual prohibition for a single woman to use DRC, in
particular, the assisted insemination method. In the Republic of Poland,
the Law on Assisted Insemination (In Vitro) was adopted in 2015,
according to which this procedure was allowed to couples whose marriage
was registered and to people who were not in registered relations but could
provide evidence that they were living together in a civil marriage. Instead,
in the Republic of Belarus, only women who are married are allowed to use
DRC.
The surrogacy situation is much more complicated, because in most
cases, clinics refuse to carry out a surrogacy program and recommend that
women marry. In our view, such a refusal is a violation of the woman’s right
to motherhood and the rights of the patient. If the woman has medical
indications for a surrogacy program, she may benet from it regardless of
her marital status (Holovashchuk, 2012). Medical indications for the use of
assisted reproductive technologies are dened in Order No. 771 of the MOH
of Ukraine dated December 23, 2008.
Article 123 of the Family Code of Ukraine (hereinafter referred to as
the FC of Ukraine) provides for the procedure for determining the origin
of the child from the father, mother at assisted insemination and embryo
implantation. Thus, according to Part 2 of Art. 123 of the FC of Ukraine,
in case of implantation into the body of another female of an embryo
conceived by spouses, the spouses are considered to be the parents of the
child. If an embryo conceived by a married man and another woman was
implanted in the body of his wife, the child is considered to have originated
from the spouses (Family Code of Ukraine, 2002). Challenging maternity is
not allowed in this case.
A person recorded as the father of the child is not entitled to challenge
paternity if, at the time of registration as the child’s father, he knew that he
was not the father.
For example, Kyiv District Court of Odessa considered court case
No. 520/12514/18 involving a claim by PERSON_1 against PERSON_2,
non-party intervener Prymorskyi District Civil Registrar’s Oce in Odessa
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of the Main Territorial Department of Justice in Odessa Region, for deletion
of information on being the father from the child’s birth record.
The plainti requested the deletion of information about him being
the father from record No. 858 dated 12.09.2008, on the birth of child
PERSON_3, referring to the fact that he generally denied being the
birthfather of the child, the parties had never been married, all he wanted
to do was to help PERSON_2 get pregnant and have a baby, therefore,
he underwent tests at the REMEDI Clinic twice and travelled with the
defendant to the Institute of Reproductive Medicine in Kyiv twice; after the
child was born, the defendant asked him to get recorded as the father in the
birth certicate of the child, and he agreed to do that so that the defendant
did not have the status of a single mother; however, it was arranged only
to donate them biological material for in vitro fertilization /IVF/ of the
defendant.
During the consideration of the case, the court found out that the child
had been born with the help of assisted reproductive technologies, and
the parties did not deny the fact, namely on 26.11.2007, the defendant
underwent the in vitro fertilization /IVF/ procedure, as conrmed by the
medical documents of the Institute of Reproductive Medicine PJSC. The
medical documents attached contain a referral from the REMEDI Center
for Reproductive Medicine dated November 24, 2007, to PERSON_2 for an
IVF procedure at the Institute of Reproductive Medicine PJSC, and other
documents that really indicate the surname of PERSON_1, his year of birth,
and his blood and ejaculate test data. The plainti conrmed in court that
he visited the REMEDI Center for Reproductive Medicine twice and went to
Kyiv together with the defendant to the Institute of Reproductive Medicine
PJSC twice to help the defendant get pregnant for the purpose of giving
birth to a child.
Having examined the case les, the court found that pursuant to Part
1 of Art. 126 of the Family Code of Ukraine, the origin of the child from
the father had to be determined upon the application of a woman and a
man who were not a married couple. Such an application may be submitted
to the public registrar both before and after the birth of the child. The
explanations provided at the court hearing and the arguments of the claim
suggest that the plainti has agreed to be recorded as the father in the birth
certicate of the child.
According to the child’s birth certicate and full extract from the State
Civil Register on the birth record dated 18.08.2008, PERSON_1 is indicated
as the child’s father. The ground for the record of information about the
father is a joint paternity acknowledgment statement of the parents dated
12.09.2008. State registration of birth was carried out in accordance with
Art. 126 of the Family Code of Ukraine.
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Analysis of court decisions in cases on provision of in vitro fertilization services in Ukraine and Europe
The record was signed by the parents. In addition, the court examined
a copy of the full extract from the State Civil Register on the birth record
of PERSON_3, issued by Suvorovskyi District Civil Registrar’s Oce in
Odessa of the Main Territorial Department of Justice in Odessa Region
under No. 00020953118, which suggests that the request was made by
demand of plainti PERSON_1 on 11.09.2018. It is evident from the extract
that the state registration of birth was made in accordance with Art. 126 of
the FC of Ukraine – upon the joint paternity acknowledgment statement of
the parents dated 12.09.2008.
Considering all the circumstances of the case, the court decision dated
April 9, 2019, dismissed the claim by PERSON_1 against PERSON_2 for
deletion of information on being the father from the child’s birth record
(Case No. 520/12514/18).
Also, a person who has consented to the assisted insemination of his
wife has no right to challenge the paternity.
For example, the court decision of Simferopolskyi District Court of the
Autonomous Republic of Crimea dated April 23, 2012, dismissed the claim
in Case No. 2-2567/11 on the establishment of the fact of the absence of
relationship, deletion of the record about the plainti being the father,
obligation to amend the Birth Registry and to provide a new birth certicate
with the child’s surname changed. The plainti stated that he did not know
anything about the fact that the defendant had become pregnant with the
help of assisted insemination. He did not give any consent to it and did not
sign anything. The court, having considered all the evidence adduced in
the case, concluded that the plainti had not provided proper evidence to
support the claim.
The court is critical about the argument that the signature has been made
by a person other than the defendant insofar as the plainti’s representative
provided to the court certicates and spermograms, which, as the plainti’s
representative explained, testied to the plainti’s inability to have a
biological child of his own, which refutes once again his argument that he
initially thought he was the birthfather of that child and was unaware that
the defendant had applied for assisted reproductive technologies (Case
No. 2-2567/11).
In this case, there is no doubt as to the origin of the child from the
persons recorded as the child’s parents, although, the child’s biological data,
including genetic origin, will be dierent. This suggests an adverse legal
eect that may arise in the future, when marriage is concluded, because
we can boil it down to such a concourse of circumstances when the future
spouses will have a common biological origin. Art. 39 of the FC of Ukraine
stipulates that a marriage registered between the persons who are direct
line ascending relatives as well as between siblings is invalid. The record
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is cancelled upon application of the interested person (Kostin and Bondar,
2009).
It is worth noting that there are currently no uniform requirements
regarding the structure and content of the contract for assisted
insemination and embryo implantation. A contract for services of
extracorporal fertilization is an arrangement under which one party – a
doctor (or a medical institution) undertakes to provide the corresponding
medical service at the request of the other party (a patient) using assisted
reproductive technologies, during which the oocytes are fertilized with
sperm outside the body, and the patient undertakes to pay for it an amount
of money agreed upon by the parties.
We believe that this contract must consist of the following parts:
1. Mandatory part.
The mandatory part must specify the following:
– denition of the subject of the contract;
– rights, obligations, and liability of both parties to the contract;
– grounds for cancellation and termination of the contract;
– terms of medical service provision;
– characteristics of the medical service.
2. The conciliatory part of the contract for services of extracorporal
fertilization is the patient’s written consent for the specic procedure.
Or it could be an application from the patient for a particular type of
procedure. This part of the contract must contain the most important
information about the future procedure, its possible complications,
consequences, and the possibility of a negative result.
3. The information part of the contract for services of extracorporal
fertilization. The information part must provide true and complete
information on the methods of assisted reproduction in an
understandable and acceptable form for the patient. It must be
indicated what the medical procedure is about, what stages it
includes, what its possible complications are, and which factors
determine the desired eect.
4. The nancial part of the contract for services of extracorporal
fertilization. The nancial part contains information about the cost
of the procedures and payment terms. It is worth noting that all
medical consultations and infertility examinations before starting the
treatment cycle are separate medical services and are not included in
the cost. In this context, it is interesting that, for example, in Germany,
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Volodymyr Kossak, Alla Herts, Mykola Stefanchuk, Svitlana Senyk y Inna Zaitseva-Kalaur
Analysis of court decisions in cases on provision of in vitro fertilization services in Ukraine and Europe
three free attempts of in vitro fertilization are oered to citizens of
the country, while in Poland, Belgium, and the Netherlands, one free
attempt is oered. Unfortunately, Ukraine does not oer its citizens
free in vitro fertilization procedure today.
It should be noted that the legislation of Ukraine does not explicitly
regulate the requirements for the form of the contract for services of
extracorporal fertilization. In our opinion, the general provisions of civil
law should be followed in this case. Thus, according to clause 2 of Part 1
of Art. 208 of the CC of Ukraine, transactions between an individual and
a legal entity must be concluded in writing, except for the transactions
stipulated by the CC of Ukraine.
Pursuant to Part 4 of Art. 209 of the CC of Ukraine, at the request of
an individual or legal entity, any transaction to which they are parties may
be notarized. Note that the systematic analysis of provisions of the CC of
Ukraine, the FC of Ukraine, other acts of civil law governing the emergence,
modication, and termination of relations concerning the carrying of a
pregnancy by means of reproductive technologies, including the Procedure
for Application of Assisted Reproductive Technologies, approved by Order
No 771 of the Ministry of Health of Ukraine dated 23.12.2008, suggests that
the law does not provide for mandatory notarization of the contract.
Thus, based on the aforementioned legal provisions, it is mandatory to
enter into a contract for services of extracorporal fertilization in writing,
which, in turn, is a criterion for performing the assisted insemination
procedure. In addition, the contract for services of extracorporal fertilization
must be executed in duplicate. Only in this case one can monitor the proper
performance of the medical service provided.
In this context, the following case law example is illustrative.
The Shevchenkivskyi District Court of Kyiv considered court case
No. 2610/22368/2012 involving a claim by PERSON_1 against the Institute
of Genetics of Reproduction Limited Liability Company and Italian citizens
PERSON_3 and PERSON_4 for invalidation of a joint contract for assisted
reproductive technologies (ART) using a surrogacy method, entered into
by and between PERSON_3 and PERSON_4, a married couple of Italian
citizens, as well as surrogate mother PERSON_1 and the Institute of Genetics
of Reproduction Limited Liability Company healthcare establishment on
20.11.2009.
In support of the claim, the plainti referred to the fact that a joint
contract for assisted reproductive technologies (ART) using the surrogacy
method was entered into in writing at the Institute of Genetics of
Reproduction LLC by and between PERSON_3 and PERSON_4, a married
couple of Italian citizens, as well as surrogate mother PERSON_1 and the
Institute of Genetics of Reproduction LLC healthcare establishment.
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However, the contracting parents did not full the terms and conditions
of the contract, did not submit to the registrar the notarized consent of
the surrogate mother for registration of the Italian citizens as parents of
the children and did not register as parents of the children delivered by
PERSON_1. The parties failed to specify in the contract the date of its
signing and failed to notarize it, which is believed by the plainti to be the
ground for its invalidation.
It was found at the court session that PERSON_1 gave birth to twins (two
boys) in Barskyi Maternity Hospital No 1 of Vinnytsia Region. However,
after the birth of the children, PERSON_1 did not give a notarized consent
to registration of the plaintis as parents of the children, did not give the
children to Italian citizens PERSON_4 and PERSON_3, the contracting
parents; instead, she applied to the Vital Statistics Department of Barskyi
District Justice Department of Vinnytsia Region and, withholding the
information that the children had been born as a result of the surrogacy
program, applied for registration of her as the mother and her husband,
PERSON_9, as the father of the newborns.
It was also found out that the decision of the Barskyi District Court of
Vinnytsia Region dated 13.03.2012, established that PERSON_1 and her
husband PERSON_9 did not deny and acknowledged the fact of voluntary
participation of PERSON_1 in the surrogacy program, did not deny and
acknowledged the fact of consent of PERSON_1 to the transfer of embryos
into her body, recognized the fact of embryo transfer and the voluntariness
of such transfer, recognized that there was only one procedure of
extracorporal fertilization that took place on 27.04.2010, which excludes
other cases of probable IVF in relation to PERSON_1 from customers other
that Italian citizens PERSON_3 and PERSON_4 in the same or dierent
period of time; PERSON_9 acknowledged that his wife PERSON_1 had
participated in the surrogacy program to help the plaintis, the Italian
citizens, have their own children.
In addition, as was established by the decision of the Barskyi District
Court of Vinnytsia Region in Case No 2-1316/2011 dated March 13, 2012,
PERSON_1 provided written consent for embryo transfer after entering
into the Joint Contract, namely on 27.04.2010, which further certies the
subsequent fullment by PERSON_1 of her obligations to the citizens of
Italy.
Taking into account the circumstances of the case and the evaluation of
the evidence provided by the parties, the court concluded that the disputed
transaction was concluded on 20.11.2009 and subsequently executed, since
the plainti carried and gave birth to the children precisely in order to full
her obligation to Italian citizens PERSON_3 and PERSON_4. The court
takes into consideration that in clause 7.1 of the disputed contract, the
parties stipulated that the contract shall enter into force on the day of its
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Volodymyr Kossak, Alla Herts, Mykola Stefanchuk, Svitlana Senyk y Inna Zaitseva-Kalaur
Analysis of court decisions in cases on provision of in vitro fertilization services in Ukraine and Europe
signing. The plainti’s party has not provided any evidence to support the
statement of any claim by PERSON_1 for notarization of the transaction
since November 20, 2009.
Thus, assessing the appropriateness, admissibility, and credibility of each
evidence individually, as well as the suciency and reciprocal relationship
in their totality, and considering that the circumstances relied upon by the
plainti had not been conrmed at the court session, the court concluded
that the claim was not subject to satisfaction (case No. 2610/22368/2012).
Thus, there are many controversial issues related to the use of
reproductive technologies in science, in medical and judicial practice.
Therefore, the problem of the ethics of inventions in medical practice
is a separate area of research in medical law and medical deontology
(Teremetskyi et al., 2019).
Conclusions
Summarizing all the above, we believe that the problems of legal
regulation of assisted insemination in Ukraine which are unresolved today
are:
• obtaining information about the donor who provided material for
assisted insemination;
• rights, obligations, and liability of donors and recipients;
• rights of children born as a result of assisted insemination to
information relating to their birthfather;
• age criteria for all participants in the assisted insemination
procedure;
• requirements for the form and content of the contract for services of
extracorporal fertilization.
Taking into account the above, we can conclude that today, there is a need
in Ukraine for proper legal regulation of assisted reproductive technologies.
The current legislation does not regulate a number of important aspects,
and therefore, there is a need to adopt the law, which will be aimed at
identifying the legal and organizational foundations of application of
assisted reproductive technologies and ensuring the rights of individuals
that the technologies are applied to.
We consider it necessary to support the opinions of those scholars
Teremetskyi and Podzirov (2022), who note that attention should be paid to
the following issues in the context of the intensication of the development
of domestic medical tourism:
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1) to improve the state of the organization and activity of subjects in the
eld of medical tourism;
2) to normatively improve the registration and permit procedures in
this area in order to improve the further eective development of the
entire medical sector.
These are perspective directions for further scientic research.
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Esta revista fue editada en formato digital y publicada
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