Given the need for sustainable development of national law in the context of European integration and globalization, it is crucial to form the legislation and law application practice on surrogacy and apply it in Ukraine, with due regard for the best foreign experience.

This article aims at providing a general description of surrogacy which contains a foreign element, the regulation of these relations under law of substance and law of conflict, the connecting factors used to establish and contest the paternity of a child born to a surrogate mother as the basic elements of implementation the best foreign experience in this area in national law.

In Ukraine, when disputes on the establishment of kinship between actual parents and a child born to a surrogate mother are resolved, the court practice tends to uphold the position that where foreign authorities refuse to recognize the fact of registration of the applicant as the child’s mother, this is a violation of her rights and rights of the child, since the status of mother is linked to all of the mother’s rights and obligations with regard to the child, in particular, maintenance and care, which she acquires under legislation of Ukraine. The courts proceed from the fact that such violation of the applicant’s rights may be eliminated by establishing the fact of kinship in a court of Ukraine at the place of the child’s birth, with a relevant court decision delivered.

Regulation of surrogacy under law of conflict reflects modern approaches to differentiation and complication of conflict of law provisions, as well as the trend towards transition from a strict legal regulation of marriage and family relations to a flexible one.

Foreign legislation applies several connecting factors in cases where paternity of a child born to a surrogate mother should be established or is contested: law of the State of the child’s citizenship; personal law of the child (with modifications); personal law of one or both parents of the child; law of the State which both spouses are most closely related to; a unilateral connecting factor under which in the State’s territory paternity is established and contested in accordance with legislation of this State.

Connecting factors used to establish and contest paternity of a child born to a surrogate mother should be interpreted and applied in accordance with the provisions of the principle of the child’s best interests.

The optimal formula of connection for establishing and contesting paternity of a child born to a surrogate mother is the child’s personal law at the time of surrogacy or that of one of his/her parents, with due regard for the best interests of the child. The State of the place of surrogacy should be understood as the State where the embryo has been implanted, since this particular medical procedure is the first stage crucial for the implementation of this method of assisted reproductive technologies.

 The author believes that it is advisable to amend article 65 of the Law of Ukraine “On International Private Law” by supplementing the article of part 2: “Paternity of a child born to a surrogate mother shall be established and contested under personal law of the child at the time of surrogacy or that of one of his/her parents, with due regard for the best interests of the child”.

Bibliography

Authored books

1. Ancuh N, Transgranichnye problemy pravovogo regulirovanija surrogatnogo materinstva [Cross-Border Issues of Legal Regulation of Surrogacy] (Chetyre chetverti 2015) (in Russian).

2. Antokol’skaja M, Semejnoe pravo: uchebnik [Family Law: Textbook] (izd 2-e, pererab i dop, Jurist 2002) (in Russian).

3. Kanashevskij V, Mezhdunarodnoe chastnoe pravo: uchebnik [International Private Law: Textbook] (2-e izd, Mezhdunar otnoshenija 2009) (in Russian).

4. Tolstyh V, Mezhdunarodnoe chastnoe pravo: kollizionnoe regulirovanie [International Private Law: Regulation under Law of Conflict] (Jurid centr Press 2004) (in Russian).

Edited books

5. Simeinyi kodeks Ukrainy: naukovo-praktychnyi komentar [The Family Code of Ukraine: Scientific and Practical Commentary] (Zhylinkova I red, Ksylon 2008) (in Ukrainian).

Journal articles

6. Bajbarosha N, ‘Kollizionno-pravovoe regulirovanie otnoshenij surrogatnogo materinstva’ [‘Regulation of Surrogacy Relations under Law of Conflict’] (2010) 2 Zhurnal mezhdunarodnogo prava i mezhdunarodnyh otnoshenij 17–22 (in Russian).

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9. Maidanyk R, ‘Dohovir pro surohatne materynstvo za ukrainskym pravom: pytannia teorii i praktyky’ [‘Surrogacy Agreement under Ukrainian Law: Issues of Theory and Practice’] (2012) 9 Pravo Ukrainy 215–25 (in Ukrainian).

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Newspaper articles

11. Jarenko A i Mel’nik A, ‘Materinskaja rabota’ [‘Mother’s Work’] Juridicheskaja praktika (2013) 32–3, 6 avgusta (in Russian).

Websites

12. ‘Nimetskyi sud ukhvalyv znakove rishennia shchodo surohatnoho materynstva v Ukraini’ [‘German Court Passed a Landmark Decision Regarding Surrogacy in Ukraine’] (Ievropeiska pravda, 23.04.2019) <https://www.eurointegration.com.ua/ news/2019/04/23/7095554> (accessed: 20.01.2020) (in Ukrainian).

13. Haro H ta inshi, ‘Naikrashchi interesy dytyny vs zakonodavstvo u sferi zastosuvannia drt (surohatne materynstvo)’ [‘Best Interests of the Child vs ART (Surrogacy) Legislation’] (Vyshcha shkola advokatury NAAU, 18.12.2019) <http://www.hsa.org. ua/blog/najkrashhi-interesy-dytyny-vs-zakonodavstvo-u-sferi-zastosuvannya-drtsurogatnematerynstvo-stattya-ganny-garo-ta-spivavtoriv-2> (accessed: 10.02.2020) (in Ukrainian).