TRANSNATIONAL SURROGACY: CONFLICT OF LAWS, RECOGNITION OF PATERNITY, AND PUBLIC POLICY IN UKRAINE

Abstract

Legal regulation of surrogacy is one of the most controversial areas of modern family and medical law, combining ethical, social and legal aspects. In Ukraine, surrogacy is permitted and regulated by the norms of the Family Code, the Civil Code and by-laws, in particular orders of the Ministry of Health, but there is no special comprehensive law, which creates gaps in law enforcement. The main problematic issues are the legal status of the parties to the contract, the procedure for concluding and executing the agreement, determining paternity, protecting the rights of the child and mechanisms of liability in case of violation of the conditions. The article examines the complex legal issues of transnational surrogacy in the context of globalization and intensification of interstate reproductive relations. The focus is on key conflict issues that arise in the process of determining the applicable law to surrogacy agreements concluded between parties who are residents of different states. The paper examines the features of conflict of laws norms of private international law of Ukraine that regulate legal relations in the field of assisted reproductive technologies, and also analyzes the gaps and inconsistencies of the current legislation in this area. Considerable attention is paid to the procedure for recognizing paternity in Ukraine in relation to children born under surrogacy programs abroad, taking into account international and national judicial practice.

The concept of public order as a basis for refusing to recognize foreign court decisions and civil status acts is separately examined, and the limits of its application in the context of human rights and the interests of the child are also determined. The modern approaches of the European Court of Human Rights to balancing national prohibitions and the need to ensure the best interests of the child are analyzed. The article considers the problems of legal uncertainty that arise due to the lack of unified international regulation and harmonized norms in the field of surrogacy.

The paper proposes a systematic approach to improving Ukrainian legislation by introducing clear conflict of laws, defining the procedure for legalizing birth documents, and establishing a single mechanism for recognizing paternity that would meet international standards for protecting the rights of the child. The results obtained have practical significance for judicial bodies, lawyers, notaries, as well as for the legislator in the process of reforming national legislation in the field of assisted reproductive technologies.