Analysis – Surrogate motherhood in Ukraine: The rise or decline of a lucrative international market?
Veronika Siegl (University of Bern)
International surrogacy in Ukraine has become a booming industry for German couples for years. This article describes this development and shows “ethical compromise” position of Ukraine in the field of surrogacy with its cheap “All Inclusive” programs. At the same time, agencies and clinics often resort to aggressive marketing strategies, multiplying the fears and hopes of people who want to become parents. That’s how Biotexcom made its name. In July 2018, there was a surrogacy scandal at the clinic that could lead to far-reaching legal changes.
In the meantime, the bureaucratic procedure for surrogacy in the German Embassy in Kiev has turned into a “conveyor”, as an employee of the legal and consular department says. In 2014, there were only 12 German couples who came to Ukraine for surrogacy; in 2017, their number was already 89. Performing work specifically for these cases is the main part of their work. Although in 2018, the number of couples fell a little, there were 79 cases in total. However, there is no doubt that Ukraine has become one of the most popular areas for international surrogacy in the last few years. According to another member of the legal and consular department, embassies of other countries also recorded a significant increase in surrogacy cases. Along with couples from Germany, where surrogacy is prohibited by the Embryo Protection Act (ESchG), Ukraine is also visited by couples who want to become parents from Spain, France and the United States.
However, this rise can have an end. In July 2018, Ukrainian Procecutor General Yuriy Lutsenko has pressed charges against BioTexCom, a “cheap provider” of assisted reproductive technologies. BioTexCom is one of the biggest and most successful clinic treating infertility among Ukrainian clinics.
According to media sources, the clinic covers about 70 percent of surrogate programs in Ukraine and has transferred more than 30 million euros to its accounts over the past three years. A director of the clinic, as well as a chief doctor, were accused of child trafficking, tax violations and falsification of documents. They were facing 15 years of imprisonment. Also, accusing the clinic the Prosecutor General’s Office relied on the case of an Italian couple in 2011. BioTexCom got out of law back then: DNA test showed that the parents were genetically unrelated to their baby, although according to Ukrainian law, at least one parent must be genetically related to the child. This might lead to changes in the Ukrainian law which could significantly limit the volume of reproductive services for foreign couples.
A new entrant in the global reproductive medicine market
The business of assisted reproductive technologies in Ukraine has flourished since commercial surrogacy in many countries has either been completely banned or restricted. These changes to the law were caused by a number of scandals. In 2014 the “Baby Gammy” case has caused a public outсry when an Australian couple left a child with trisomy 21 to a Thai surrogate mother. After that, Thailand adopted more restrictive laws. Nepal, Cambodia and Mexico followed suit, closing their doors to foreign couples wishing to become parents.
Meanwhile, Ukraine is becoming one of the few countries in which commercial surrogacy is allowed. In the post-Soviet Ukrainian city of Kharkov the first birth via surrogacy occurred already in 1991. How many children have been born annually since then thanks to this particular reproductive technology is unknown. Although there are official statistics, clinics are not obliged to transmit information to the Ministry of Health. According to estimates, the number of births via surrogacy is about 500 each year; some sources even mention 2000.
The legal framework for surrogate motherhood programs today are the Family Code and the Civil Code of Ukraine, as well as the law about basis of legislation of Ukraine about health care and the Order on approval of the application of assisted reproductive technologies in Ukraine. Based on these legal regulations, only heterosexual married couples can avail of surrogacy programs. They must prove that they cannot conceive a child in a “natural way”, that is, a woman cannot carry a baby. Along with a genetic link to the baby of at least one parent, it is also established that the surrogate mother must not be genetically related to the child. “Gestational surrogacy” from Latin (gestare – carry) thereby differs from “traditional surrogacy”, in which the surrogate mother is also the biological mother of the child. Since 1978, when the first child was born through artificial insemination and this technology was later optimized and became accessible to larger segments of the world’s population, traditional surrogacy was practiced only rarely. From the legal, ethical and emotional point of view, gestational surrogacy is considered simpler, because the difference between a woman wishing to become a mother and a carrying one is more obvious. This certainty is also important for surrogate mothers — many cannot imagine what it means to “give up a child” they are genetically related to. In a society where kinship is determined by genes, the lack of genetic helps with differentiation. Also, surrogate mothers should have a child according to the law.
Many surrogate mothers raise small children themselves and are often in financial difficulty. Thanks to surrogacy, they can combine child care and making money. Most women confess they want to buy their own apartment for the money. They do not hide their financial motives. Many consider surrogacy as a job and defining their relationship with agencies and people who want to become parents as business relationship. Even if surrogacy becomes normal practice for all participants, it is still considered illegitimate and morally condemned in Ukrainian society. Stigma is raised primarily by the conservative and religious forces in the country. Surrogate mothers therefore often try to hide their pregnancy and, starting from the 6th month of pregnancy, they hide behind fertility clinic walls to avoid curious glances and undesirable questions. They do not want to be known as sinners who sell their bodies and children for easy money.
Destination Ukraine as an ethical compromise
The development of assisted reproduction and the splitting of motherhood into three “roles” (genetic, intentional, and gestational) weakened moral doubts that surrogate mothers give up “their” children. And yet surrogacy, especially commercial, is still considered a very condemned practice. The central point of criticism is danger of exploitation. The danger that is magnified for many by the fact that pregnancy is considered an intimate, emotional and private act that does not have to follow the marketing logic. Exploitation can be expressed, among other things, by the fact that women become surrogate mothers due to their financial difficulty and people who want to become parents, agencies and clinics use this intimate situation to their advantage. If we consider discussions circulating in the media about the possible assignment of surrogate motherhood, then in this respect the “ethical hierarchy” is shown regarding exploitation issue. The United States is considered the most ethically correct option: altruistic motives are attributed to surrogate mothers from the United States; they meet with intended parents on the same level. The surrogate mothers of the Global South, in the contrary, are often associated with poverty and exploitation.
In this ethical spectrum, Ukraine positions itself as a “compromise”. While prices for surrogacy in the United States start at 100,000 euro, in Ukraine all-inclusive packages cost between 30,000 euro and 40,000 euro. These packages cover medical and legal procedures, as well as surrogate mothers’ fees. Despite the relatively low prices, the same new-colonial aura did not cling to the Ukrainian “reproductive tourism”, as it was with Thailand and India. Intended parents and agencies continue to claim that Ukraine is sufficiently “European” and “developed” country for women to make decisions on surrogacy of their own free will.
Nevertheless, differences in income between intended parents and surrogates are so striking, as in other countries with low wages, that charitable and philanthropic discourse often manifests itself. For example, a woman at an international forum for intended parents writes: “Thanks to surrogacy in Ukraine, we help these women and their families make money”. Indeed, the profit from surrogacy greatly exceeds the Ukrainian average salary. While many surrogate mothers work hard to earn no more than 250 euros a month, they will receive about 10,000 euros for pregnancy. In the USA, for example, surrogate mothers get around 25,000 – 30,000 euros. It’s often said that with such a high fee, there can be no question of exploitation. From this point of view, surrogacy becomes a solution, not a symptom of global inequality. Regarding Ukraine, this discourse has become a fertile ground since 2014, when political and economic unrest broke out. The number of potential surrogates has increased because of the Russia-Ukraine conflict and the subsequent economic downturn. Most of these women aged 20–35 come from central and eastern Ukraine. Many take part in surrogacy programs in Kyiv or Kharkiv. Some even reach Moscow or St. Petersburg – a distant journey, which they undertake due to a high reward. In addition, distance increases anonymity and thereby protects against moral stigmatization. Since the conflict between Ukraine and Russia, the trip has become more difficult and the number of Ukrainian surrogate mothers in Russian clinics has fallen.
The charitable discourse of future parents and agencies should be understood as direct reaction to the heavy criticism of surrogacy. While intended parents have to serve certain legitimate discourses on the basis of this criticism, the same discourses are integrated by intermediary agencies and advertising methods. However, there are different strategies.
Aggressive marketing and fake reviews
Ukraine owes its success in surrogate motherhood not only to the lack of alternative directions. There is also an active advertising industry behind this, which is increasingly being discovered by couples who want to become parents. BioTexCom is extremely good at it. “There is no absolute infertility”, the clinic says on its website, “We treat even the most hopeless cases”. And further in the text: “BioTexCom is a paradise for older women, as confirmed by several articles. In Germany, as in Switzerland, this raises strong discussions, a 66-year-old woman who, thanks to the birth of twins, became the oldest mother of Switzerland; or already 13-times mother from Germany who gave birth to quadruplet with the help of egg donation and donor sperm at 65.
Part of BioTexCom’s advertising strategy is numerous anonymous “parents” who write comments under online articles and even on news portals, praising Ukraine as a last resort. The plot is always the same: the couple was already in many clinics in other countries, but there was no success. Exhausted emotionally and financially, they overcome their fears of “East” and go to Ukraine, where in an amazing way surrogacy immediately works. Then in a subordinate clause a name of the clinic is mentioned. Some users go so far as to spread dubious information about why surrogate motherhood in other countries cannot lead to success: in Georgia embryos are allegedly transplanted too early; in Spain they don’t use fresh eggs, but frozen ones; in Mexico, surrogate mothers are allegedly infected with dangerous diseases. Such stories multiply fears and give the feeling that only Ukrainian clinics, first of all BioTexCom, can fulfill the desire to have children. The similarity of these stories as well as errors in German and English indicates that we are talking about paid texts. These comments do not emphasize European nature of Ukraine and they do not try to emphasize the altruism of surrogate mothers or the charitable contribution that future parents make rewarding surrogate mothers for their help. Comments and messages generally follow the same example, weighing pros and cons of surrogate motherhood in Ukraine they all come to the same conclusion: despite weak Ukrainian infrastructure, BioTexCom is the top direction for surrogacy. In this respect, an article with the title: “There are the worst roads and the best reproductive medicine in Ukraine” is especially illustrative. The author of the article, a journalist, describes her experience as a future mother thanks to BioTexCom. Conditions and services were at an inadequate level, and experience was becoming “worse and worse”. Still, at the end, she concludes that although Ukraine is a “third world” country, in the field of reproductive medicine it performs miracles. A number of comments adjoin the article, almost without exception, praising the work of the clinic.
The Internet plays a big role in recruiting surrogate mothers. Agencies and private intermediaries make advertising through social networks, such as the Russian equivalent of Facebook, VK. Surrogate mothers and future parents may put their own ads online in order to avoid expensive intermediary agencies. In the so-called “direct programs”, the two parties are in close contact and can agree on the terms of their cooperation. Surrogate programs that are performed through agencies are, on the contrary, standardized and anonymous for both parties. This is a great advantage, agencies say, because close contact is redundant and surrogacy should be a working relationship, while contact may bes even dangerous. Both “money-hungry surrogate mothers” and “parents wanting to control everything” are only interested in their own benefit. In such cases, agencies position themselves to be seen as defenders. First of all, foreign intended parents lend themselves easily to this rhetoric. Based on the lack of local and language knowledge, a journey through a local agency is almost inevitable for them.
Legal conditions for German couples
However, it seems that advertising mechanism functions well for clients from Germany. The clinic indicates that in 2017 it allegedly had 750 German couples who used the services of reproductive medicine — which is three times more than in 2014. According to the statements of the embassy, nearly 90 percent of German couples doing surrogacy in Ukraine cooperate with BioTexCom. The clinic even points to “collaboration” with the embassy, which the latter denies. However, the bureaucratic process is proceeding very smoothly and is already automated: after the birth of a child, the father and the surrogate mother must sign various documents at the embassy. In addition, the father signs an acknowledgement of paternity and the surrogate mother gives her consent. A genetic test — as other countries require it partially — is not needed for it. By signing that document, the child receives German citizenship and thereby a German passport. The Ukrainian birth certificate with the names of the parents, where the surrogate mother does not appear, as well as the notarized declaration by the surrogate mother indicating she has no parental rights, are not recognized according to German law. The transfer of custody from her to the intended mother happens later, after the so-called “adoption of the child of own spouse”. In the duplicate of the birth certificate, in the German birth certificate, surrogate mother’s name is mentioned. Parents should be aware that their child will find out about surrogacy sooner or later.
“Ten years ago, surrogacy red tape in the German embassy was still utterly unbelievable”, the employee commented. “Since then, a more democratic attitude towards this has emerged. Still it took more than a year earlier, while today, the process is carried out quickly and efficiently within a few weeks. Meanwhile, there is more open attitude to the matter. A few years ago, parents often tried to conceal the fact they were doing surrogacy. Now, couples mention surrogacy directly and most accurately informed about the procedure. This has its advantages, but it can also lead to the fact that parents will be more demanding of the embassy and get angry if the process lasts longer than they expect”. But there are no guarantees the process will be smooth. There is a warning on the German Embassy web-page saying that “in some cases children’s departure is impossible and they may be placed in an orphanage” and therefore they “generally do not advise taking part in Ukrainian surrogate motherhood programs”.
For the embassy employees, the current approach to the issue is “a perfectly good decision”. They are happy with the strict regulation and the fact that they do not need to play detective. But they are afraid that one day an avalanche that cannot be stopped will come down. “There won’t be an opportunity to ban surrogacy”, an embassy official said. We should find a way to demotivate parents from coming to Ukraine. At the same time, it is necessary to ensure that the children of the parents, who nevertheless chose this path, would not end up in a legal vacuum. In his opinion the best decision would be an amendment to the Ukrainian laws that prohibit surrogacy for foreign couples.
Due to the “legal offside” of BioTexCom, some draft laws are being discussed in the Ukrainian parliament currently. This may have far-reaching consequences: some bills allow surrogacy, as well as other assisted reproductive technology procedures only for couples with a permanent residence in Ukraine and/or for couples from countries where surrogate motherhood is allowed. In addition, an age limit should be introduced for intended parents. However, no changes to the law were introduced. Employees of the consulate doubt that an appropriate resolution will be adopted in the Parliament in the near future. The government has other priorities, and perhaps clinics and agencies want to actively discourage law amendments. These institutions are the greatest beneficiaries of the reproductive business. They struggle not only through misleading information, but also through the monopolization of information for getting a profitable market. As a body between future parents and a surrogate mother, they have a great power to influence and manipulate communication between the parties and their relations. Thy have a power, which due to current very rudimentary legislative position has various possibilities for development. If it comes to new surrogacy law adoption in Ukraine, then it would be desirable to set better protection for surrogate mothers and intended parents.
Conversations with employees of the legal and consular department of the German embassy took place in Kyiv in 2015 -2018.
About the author:
Veronika Siegl, defended her PhD thesis, but not yet approved to the degree. She is an assistant at the Institute of Social Anthropology and a visiting professor at the interdisciplinary center for gender research at the University of Bern. As part of her thesis: “Fragile Truths. The Ethical Labor of Transnational Surrogacy in Russia and Ukraine” (2018), she researched the controversial practice of commercial surrogacy.