Surrogacy in Ukraine for German Couples

Under Ukrainian law, surrogacy is explicitly permitted and regulated by the Family Code and Order 711 of the Ministry of Health. Article 123.2 of the Family Code stipulates that couples who create an embryo using artificial insemination and implantation in the uterus of a surrogate mother are automatically the biological parents of that embryo.

Under Ukrainian law, a surrogate mother is not entitled to the motherhood of the carried child. With the surrogate mother’s consent, the name of the parents is also entered directly into the birth certificate. However, it can only be used by heterosexual married couples. Under Ukrainian law, intended parents meet the criteria for using surrogacy if it is not medically possible for the intended mother to become pregnant and the father has fertile sperm.

The surrogate mother must be at least 18 years old and have already given birth to at least one child of her own. She is also examined for physical and mental suitability with regard to pregnancy and the subsequent birth.

The most commonly used procedure is ‘in vitro fertilisation and transfer of fertilised eggs’. In this method, the embryo is created in the laboratory using in vitro fertilisation. The fertilised eggs are then implanted into the surrogate mother. As a rule, the sperm of the intended father is used for this. In contrast to Germany, in Ukraine it is possible to use an egg donation if the intended mother does not have any of her own eggs.

Both parents can recognise each other as parents in Ukraine before the birth with the consent of the surrogate mother and have themselves entered in the birth certificate accordingly after the birth. This recognition is carried out by the German Embassy in Kiev but can also be prepared by a German notary. With the surrogate mother’s consent, the recognition can also take place before the birth. The birth certificate is issued by the local registry office in Ukraine where the parents have previously registered.

In principle, there are always two ways to have the parenthood of the child recognised. However, due to the German legal situation, the recognition of the intended father is usually less problematic than that of the mother.

According to German law, a German father can be recognised as such if the woman who has carried the child is not married. This is not possible for the intended mother because, according to German law, the woman who has carried the child is always the mother of the child. The BGH has ruled that a woman cannot register as the mother of a child born to a Ukrainian surrogate mother on the basis of a Ukrainian birth certificate. This applies regardless of whether or not there is a biological relationship, as in the case of surrogacy or gestational surrogacy. If the intended father is recognised as the father, the only option left for the intended mother is stepchild adoption under German law.

The other option is to recognise a Ukrainian court ruling that specifies the parents. Such a ruling can then be recognised in Germany in accordance with § 107 FamFG. If this is possible, the lengthy adoption process can be avoided. A birth certificate is not a decision in the sense of § 107 FamFG and, therefore, not accessible to such recognition. However, this option is used with caution. The chances of success can be determined in an individual legal consultation.

If the father does not have German citizenship, the Foreign Office must determine the recognition in accordance with the respective state law.

If the intended father is recognised as the legal father from the outset, he has the option of requesting documents from the German Embassy in Ukraine that will enable him to enter the country with the child. The same applies if a judgment has been passed recognising both intended parents as legal parents.