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Order No. 787 of the Ministry of Health, which approves the Procedure for the use of assisted reproductive technologies in Ukraine, has been in force since 9 September 2013. Over that decade the field has developed considerably and been shaped by external events, the Covid-19 pandemic and the full-scale invasion among them, so this key document needed bringing up to date. On 6 March 2024 the Ministry issued Order No. 383 making a number of amendments. In the article I look at how they work in practice and whether they meet what doctors and patients expected.
Access to state-funded treatment. Against a deepening demographic crisis, fertility treatment is one of the priorities in the medical guarantees programme, and in 2024 the National Health Service launched a programme of treatment using assisted reproduction, so that the package can be obtained free of charge at facilities contracted to it. To anchor the referral mechanism, a new paragraph 1.10 was added: where there are no contraindications, patients are referred for treatment on the basis of examination and the conclusion of a multidisciplinary panel — medical director, treating doctor, therapist and obstetrician-gynaecologist, with other specialists where needed — recorded in the electronic health system. More than ten facilities, municipal and private, now provide these services free of charge across Ukraine, and the first pregnancies have already been recorded.
Sick notes. New paragraph 1.11 provides for an electronic medical conclusion on temporary incapacity for working patients after treatment. In practice, though, the sick note is needed not after the procedure but mainly during stimulation, at the puncture and on the day of the embryo transfer; after the transfer there is no acute need for one. The provision has probably carried over from earlier years, when cryopreservation was rarely used and severe ovarian hyperstimulation syndrome affected most women undergoing treatment.
Validity of tests. In the section on patient examination, the validity of tests for syphilis, HIV and hepatitis B and C was extended from three months to six. That is convenient for patients, who during martial law cannot always repeat laboratory tests every three months, but it carries risks in donation and surrogacy programmes, since donors and surrogates follow the same examination procedure as recipients. Some clinics have kept the previous intervals for those categories.
Donors. The procedure for working with donors has changed: on signing the informed voluntary consent, an additional 1–5 ml of whole blood and 10 ml of plasma are now taken, frozen and stored at −20 °C for further genetic testing and additional PCR checks for syphilis, HIV and hepatitis B and C. Even specialists do not fully understand why, and the paragraph does not say for how long the samples are to be kept; the intention is presumably to allow clarifying tests if an infection or other pathology is found in a future child. The provision may nonetheless be useful, since thawed sperm may be used only after repeat negative results and no earlier than six months after cryopreservation — if the donor cannot be retested after that interval, the stored samples could in theory serve for the necessary check.
Contraindications. An entirely new Annex 30 lists the contraindications to treatment for female infertility — conditions in which carrying a pregnancy is contraindicated. Doctors note that the list is neither exhaustive nor sufficiently detailed, and other instruments have not been aligned with it. On infectious and parasitic diseases, for instance, Annex 30 lists only forms of tuberculosis, while Order No. 579 of 2004 remains in force and lists syphilis, viral hepatitis and HIV as well. Removing HIV from the contraindications in Order No. 787 is a progressive step, consistent with the 2022 standards on preventing mother-to-child transmission of HIV, which provide that where HIV infection is combined with infertility, assisted reproduction is used in accordance with the sectoral rules.
Surrogacy. Section VI, which governs surrogacy, was amended in several places.
A mandatory examination of the surrogate by a psychiatrist was introduced (paragraph 6.3). Ukrainian law does not in fact use the term “examination by a psychiatrist”: the Law on psychiatric care provides only for a psychiatric assessment, carried out to establish whether a person has a mental disorder and needs care, including a preliminary assessment before taking up work or activities with special requirements for mental health. It is hard to say whether such an assessment will protect intended parents from psychological difficulties during the programme, but it does at least reduce the scope for challenging the surrogacy agreement on grounds of the surrogate’s incapacity.
A drafting error was corrected: the birth may be attended jointly by the parents who have a genetic link with the child and the surrogate (paragraph 6.6) — the earlier text wrongly said “recipients”. The surrogate’s own wishes must nonetheless be taken into account: ethically, she may not always be comfortable with the genetic father present at the birth.
More important, in my view, is the inaccuracy still left in the form of the surrogacy agreement. The list of required documents refers to “a notarised copy of the written joint agreement between the surrogate mother and the woman (man) or the couple” (paragraph 6.10). Some unscrupulous providers exploit that wording to avoid having the agreement itself notarised, which does nothing good for the protection of the parties’ rights and interests or the best interests of the future child. What is needed is a requirement that the agreement between the genetic parents and the surrogate be notarised, rather than a notarised copy of an agreement concluded in simple written form, which is not acceptable.
A new provision requires that the newborn and the surrogate be kept separately after the birth (paragraph 6.6). Keeping them together is certainly undesirable. But the orders governing maternity records and the medical birth certificate operate only with the terms “pregnant woman”, “woman in labour” and “woman who has given birth”; there are no instruments regulating the status of a surrogate during pregnancy monitoring or her stay in the maternity hospital. Until the genetic parents’ rights are properly registered at the civil registry office, maternity staff have no legal basis for treating the surrogate separately from the newborn. This too needs refining.
Posthumous use of stored material. Given the urgency of protecting the reproductive rights of service members, the application for thawing sperm, oocytes and ovarian tissue (Annex 24) was amended so that thawing and use may be carried out on the basis of an application or disposition by another person regarding the reproductive cells in the event of death or a declaration of death. That plainly conflicts with Law No. 3573-IX of 7 February 2024, under which free storage continues for three years from death, after which storage may be continued at the expense of a person named in the deceased’s will concerning their own reproductive cells. The law, in other words, specifies a will and not an application. The legal community has a number of objections to the will as the form of disposition, beginning with the undefined status of reproductive cells and embryos. Beyond that, what should pass is not ownership of the material but the right to dispose of it through assisted reproduction, and that right is a personal non-property right, which under Article 1219 of the Civil Code cannot form part of an estate. What is beyond dispute is that these instruments must correspond with one another and form a single coherent picture. Several problems around posthumous reproduction remain unresolved: the time limits for disposing of a deceased person’s material; the undefined circle of people who may claim to dispose of it; the practical difficulty of posthumous disposition of oocytes; the absence of rules on the origin and birth registration of a child conceived after death; and the need to revisit the rules on inheritance.
Accessibility. The recommended list of equipment for a doctor’s room in a facility providing these services now includes a gynaecological chair for persons with disabilities. Access to good gynaecological care concerns every woman, whatever her nationality, physical condition, disability or sexual orientation — the slogan of the advocacy campaign run by the National Assembly of People with Disabilities of Ukraine with the support of the Ukrainian Women’s Fund. Such chairs are not in the budget segment, but the change prompts facilities to equip consulting rooms universally, taking account of patients with musculoskeletal impairments.
Taken together, the amendments point in a positive direction, but they do not resolve all the legal questions that arise in this field and in places contradict current Ukrainian law. The work of improving and harmonising the legal guarantees for reproductive rights needs to continue.