The Effect of the War on Surrogacy Contracts in Ukraine

War is a situation that no reasonable and moderately intelligent person would ever want, with extremely sad results. It has many legal consequences as well as life-related outcomes. The war launched by Russia against Ukraine in the last week of February 2022 has led to new crises in many different areas. In this article, we pointed out the effects of the current war on surrogacy, one of the areas where Ukraine stands out in the world.

Surrogacy in Ukraine

Surrogacy, which was allowed due to the liberalization of the law, was a popular practice in Ukraine and as the world's leading country in this regard. Also surrogacy has become an excessive trend in recent years. A large number of people from many parts of the world (including Turkey), especially from European countries, came to Ukraine for surrogacy and agreed with a Ukrainian surrogate mother.

In surrogacy, an embryo is created with the sperm of the father and the egg of the genetic mother in the form of in vitro fertilization (IVF) and this embryo is placed in the uterus of the surrogate mother. After the surrogate mother completes the pregnancy process and gives birth, she delivers the baby to the genetic mother and father as in the surrogacy agreement.

Since surrogacy in Ukraine is seen as one of the important incomes of the country, it can be said that surrogacy is viewed positively by the country's policy. But it should be noted that there are no laws protecting the surrogate mother and legal regulations suitable for solving the medical, ethical and legal problems in the laws of Ukraine, for example, children born to surrogates are not directly obtaining citizenship. Therefore, the parties on surrogacy (genetic mother, genetic father, clinic, surrogate mother) determine all the principles and terms, regarding the result and the procession the contract they make, and actually the contract becomes the parties' own laws.

Contract Law, Medical Practices and the Right to a Healthy Life

Every person has the right to live freely, rihgt to protect self-body, right to live a healthy life and right to contract freely. But these rights sometimes compete with each other and legal - ethical breaks may occur in this direction.

Although surrogacy is prohibited in many other countries as well as Turkey, yet the agreements can be concluded between the parties where the place of jurisdiction this practice is not prohibited. Although there are always general contractual principles, surrogacy contracts are subject to different evaluations due to their nature. Because the subject of the contract is human, body and biological material, and because the contract is closely and directly related to the surrogate mother’s life and health. Also it is tied to a period of approximately 40 weeks, the results connected to it become idiosyncratic.

Force Majeure in Contracts, State of War and Perform Difficulties

In surrogacy contracts, the current state of war in terms of contract law, apart from medical law and health law, may constitute excessive difficulty in performance for the parties. Especially in terms of the surrogate mother, if the contract is not fulfilled properly for all the prospect provisions, it can become seriously difficult under the war. In such a case, it cannot be expected from the surrogate mother to be healthy in terms of body and mind and to give birth in the best way with proper nutrition throughout the pregnancy period. Therefore, surrogacy contracts may be terminated due to force majeure. Also to keep in mind, there may even be a situation of “de facto impossibility” in terms of the performance of the contract.

Not to forget, the free will of the surrogate mother and her ability to decide unfettered are very important for the establishment of the surrogacy contract. For this reason, it is legally and morally unacceptable that the mother has to make a contract in the face of the threat of war and poverty. This situation legally causes a disability in the conclusion of the contract.

Requesting the termination of the contract due to the surrogacy mother's difficult situation

The surrogate mother, who has the baby of the genetic mother and father in her womb, may not be able to go abroad due to situations such as the inability to use the airports during the war and the closure of flights. In this case, the inability to go abroad before the birth and the weeks of pregnancy under the war may adversely affect the health of the surrogate mother and the baby. Whether or not a surrogate mother can be granted the right to abortion is a matter of serious ethical and legal debate.

In addition, if the surrogate mother gives birth in some way during the war, she cannot deliver the child to the genetic parents and has to take care of the child during this period, which requires covering the expenses of postnatal care. Moreover, if this process is prolonged, it may be unfair for the mother and the baby to expect the baby to be delivered to the genetic parents from the surrogate mother if she has to look after the baby for a while and is emotionally attached to the baby.

Genetic mother's request to terminate the contract due to change in surrogate mother's status

If the genetic parents demand the termination of the contract due to reasons such as insufficient nutrition of the surrogate mother, her psychological and mental health and her peace of mind due to the war situation, what kind of consequences this will have on the surrogate mother's body is also a dilemma. It may not be acceptable for the surrogate mother to be forced to resort to abortion, and it may not be fair to expect the surrogate mother to give birth to the child without any genetic link and to be a mother to a baby throughout whole life.

Conclusion

Since the solution of the above-mentioned situations is not possible with laws and international agreements today, these issues pose legal and ethical problems dramatically. Although such situations are foreseen and finalized in the surrogacy contract, it makes the solution relatively easy, yet there are of course ethical and legal difficulties. Moreover, the fact that these were not foreseen in the contract beforehand, with the future course of the war and many other uncertainties, it is a sequel with dire consequences.

War, as it puts an end to lives, is a real darkness. In the case of Ukraine, in terms of babies born or expected to be born with a surrogate mother in the war, it is legally and ethically a dark situation again.

Wish the war end soon..

Abdurrahman Ali YILDIRIM

Lawyer / Attorney

ISTLEGAL Law Office

Istanbul / TURKEY

03.03.2022