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In the months before February 2022, foreign intended parents in Ukrainian programmes watched the build-up along the border with growing alarm, and embassies and agencies began drawing up emergency plans. Diplomatic missions sped up travel documents for children born through surrogacy, opening outside working hours and at weekends; even the Spanish embassy, which for several years had refused Spanish citizenship to such children, returned to issuing ordinary passports so that babies could go home quickly.
After 24 February every mission relocated, to western Ukraine or abroad. Notaries and civil registry offices stopped work for a time, and access to clinics and agencies was severely limited. Documents for the first children born after martial law was declared were prepared in extraordinary conditions and far from the usual standards: foreign ministries cut their document lists and relaxed their requirements, accepting electronic copies and even photographs taken on a phone, waiving apostilles and certified translations. Surrogates who could not print anything wrote their consent to the child leaving with its biological parents by hand, on pages torn from a school exercise book. The hardest cases were births in occupied territory, where the first task was to find a way to evacuate the woman and the child. Away from the front line, things gradually restarted: notaries and registry offices reopened, clinics took patients again, and agencies moved pregnant surrogates to safer places, arranged care and deliveries there, and carried on preparing the children’s documents.
The foundation of Ukrainian law did not change. Under Article 123(2) of the Family Code, where an embryo conceived by a married couple through assisted reproduction is transferred to another woman, the couple are the child’s parents. The documents to be filed with the registry office are the same as before: the parents’ passports; their marriage certificate, apostilled or consularised; the medical birth certificate (form 103/o); the clinic’s certificate of genetic link; and the surrogate’s notarised consent to the couple being recorded as parents.
What did change is where and how this can be done. Under the Rules on state registration of civil status acts, during martial law registration may be carried out by any registry office, so the certificate no longer has to be obtained where the maternity hospital is. On 4 March 2022 the Ministry of Health allowed a birth outside a medical facility to be certified by the medical staff who attended it or first examined the child. And parents who decide not to travel to Ukraine, following their own government’s advice, can have the certificate obtained by a properly authorised representative: notarised copies of passports, a power of attorney and an application for registration, apostilled or consularised where they are signed, and sent to Ukraine in original.
Crossing the border with the child follows special rules too. Under Cabinet Resolution No. 57, children under 16 may leave Ukraine on a passport or, where there is none, a birth certificate or other identifying documents accepted by the Border Guard Service — so a foreign passport is not strictly required. That rule is written for Ukrainian children, but in practice border guards have applied it by analogy to babies born here to foreign parents. Since under the Law on the legal status of foreigners entry and exit normally require a passport document, I strongly recommend obtaining a travel document for the child from the relevant embassy in Ukraine. Without it, border guards are notably careful and often ask for further documents tracing the programme: the surrogacy agreement, the certificate of genetic link, the surrogate’s notarised consent, the newborn’s medical record.
Embassy requirements have been changing constantly, so parents should stay in contact with their consulate in the weeks before the due date. Most issue an emergency travel document. The first months were handled online; by late 2022 most embassies had returned to Kyiv and invited parents in person with originals. Processing is fairly quick and the requirements comparatively relaxed — document lists often carry notes such as “not obligatory but desirable” or “if possible”, and some embassies do not insist on apostilles. The German embassy dropped the surrogate’s personal attendance in favour of a notarised declaration; the Irish embassy temporarily suspended the mandatory DNA test; for Swiss parents, a visa for the child is issued through the embassy in Bucharest after review by the State Secretariat for Migration.
A separate set of problems arises where a Ukrainian surrogate gives birth abroad, as some intended parents understandably wanted the woman taken out of danger; a number of them received temporary protection in Poland, Czechia, France, Germany, Switzerland, Ireland, the United Kingdom and the Baltic states. The legal consequences are not straightforward, because commercial surrogacy is prohibited in most European states and the woman who gives birth is presumed to be the mother. In private international law the law of the place of embryo transfer — Ukrainian law — cannot govern parentage in that situation; the principal connecting factor is the personal law of one or both genetic parents, except where the child is born in a country that grants citizenship by birth, such as the United States. If registration follows the law of the place of birth and that country applies the birth-mother presumption, the Ukrainian surrogate is automatically the legal mother, with all the personal and property rights and duties that follow, and the intended parents acquire parental rights only after going through recognition of paternity, adoption, a parental order or a similar procedure in their own country. Parents in that position need a local family lawyer both where the child is born and where they live.
Martial law also raises questions about the contracts — with clinics, agencies and surrogates. Under Article 617 of the Civil Code a party is released from liability if it proves the breach was caused by force majeure, and under the Law on chambers of commerce hostilities count as force majeure; the Ukrainian Chamber of Commerce simplified certification by publishing a general official letter. In practice, though, the consequences changed materially only for loan agreements. For other contracts, including those in surrogacy, a party must still show that the particular obligation went unperformed because of the war. Foreign patients can therefore be confident that their contracts remain in force and are to be performed unless the contrary is proved in the manner the law provides. Some clients who signed before the war now want to terminate and recover unspent funds, which is not always possible: the contracts often say nothing about recalculation on early termination, and the National Bank has imposed substantial limits on cross-border currency transfers by legal entities. It is hard to overstate how important it is to analyse these contracts before a programme begins, to be sure they contain workable clauses on force majeure and material change of circumstances.
Another wartime problem is logistical: moving cryopreserved material from Ukrainian clinics abroad for storage. Under Order No. 787 gametes and embryos are the patients’ biological material and the clinic stores it; at the patients’ request it may be transported to another facility in Ukraine or abroad, on a written application with a transfer act. Ukrainian law left the practical side of transport unregulated even before the war — there is no defined customs procedure or document list — so patients mostly turn to specialised transport companies that arrange the paperwork case by case.
A final word on how foreign media have covered this. Attention goes mainly to the difficulties, often in a scandalous register that does little to help the people actually in these programmes. Requests regularly arrive asking us to find surrogates who have lost contact with a clinic, or parents unable to collect their child. In fairness, such isolated cases could only have occurred in the very first days of the invasion, when agency staff were dealing with their own families’ safety alongside their work. Otherwise surrogates have continued to receive proper care from coordinators and medical staff, parents have had unhindered contact with their representatives in Ukraine, and groups were set up in social networks within days to reconnect those who had lost touch. Ukrainian lawyers have by now worked out effective strategies to protect the best interests of these children and get them home quickly.
Procedures described here reflect the position as at October 2022.