Qualification of the Surrogate Mother’s Actions in Relation to the Illegal Keeping of the Child, Born in the Surrogacy Program
Authors: Trynova Ya. О. 
Published: April 2021

On September 9, 2013, the Order of the Ministry of Health of Ukraine № 787 approved the Procedure for the use of assisted reproductive technologies in Ukraine (here in after - the Procedure). One of the methods of application of assisted reproductive technologies (here in after - ART) is surrogate (surrogacy), provided for in section VI of this Order.

According to item 6.1 of the Order conditions of application of this method of ART are existence of medical indicators; availability of certain documents; the presence of a genetic link with the child in the spouse (or one of the future parents), in the interests of which surrogacy is carried out; and SM should not have a direct genetic link to the child. Thus carrying of pregnancy by close relatives of future parents (mother, sister, cousin, etc.) is allowed.

Among the documents required for the surrogacy program (here in after - the Program), there is an agreement between the SM and potential parents (spouses) or a man (woman) in whose interests the Program applies. This agreement may be called the Surrogacy Agreement; Contracts for childbearing, etc. The main thing we will pay attention to in the context of our article is that among the responsibilities of the SM is the obligation to transfer the newborn child after its birth to potential parents or one of them with whom a Surogacy agreement was concluded (or their representative persons).

The legal force of this clause of the Agreement is given by Art. 123 of the Ukraine Family Code (FC), according to part 2 of which in case of transfer to another woman (SM) of a human embryo conceived by a spouse (male and female) as a result of the use of ART, the child's parents are spouses. Moreover, in accordance with Part 2 of Art. 139 of the FC of Ukraine, contesting maternity is not allowed in the cases provided for in parts 2 and 3 of Article 123 of the FC of Ukraine. Thus, the SM cannot claim to be the mother of a child born as a result of the application of the Program.

The only primary document of registration of the child birth, which should contain data on the SM, is the Act record of birth, on the basis of which the Birth Certificate is already issued. Thus, in the column "For marks" of the Act record of birth the following entry should be made: "The mother of the child according to the Medical certificate of birth is a citizen (surname, first name, patronymic SM)", as well as the name of the institution), who issued the certificate, date of issue and number, notary data (surname and initials, notary district or state notary office), date and registration number certifies the authenticity of the SM's signature on the application for her consent to the registration of the spouse by the child's parents .

All this gives grounds not to consider SM as the mother of a child born in the program, in the legal sense. And all this is reported in the Surrogacy agreement, which is signed by the SM, and in oral conversations with her.

However, there are many cases of SM failing to fulfill its contractual obligations, including illegal keeping of a child born as a result of ART.

In addition to the being of civil law relations and a clear private-law conflict, let's analyze on my own example from my legal practice whether there may be a corpus delicti in such actions of the SM.

The article describes various practical situations. Situation 1 (main). The SM decided not to give the biological parents or one of them their child, which she gave birth to as a result of the ART program and on the basis of the Surrogacy Agreement concluded between them.

SM gave birth to a child, received a Medical certificate of birth of a child, and in the Act record of the birth of a child did not indicate that she is SM; on the basis of it she received a child's birth certificate. Of course, in all these documents SM was entered (according to her) as the biological mother of the child.

These documents give the SM quasiright to dispose of this child as its own , in particular to determine its place of residence, stay, even to determine the child's citizenship, etc.

The described SM`s actions can be qualified under part 2 of Art. 146 ("Illegal imprisonment or kidnapping") of the Criminal Code of Ukraine, they are subject of criminal liability in the form of restriction of liberty for up to 5 years or imprisonment for the same period. The moment of the end of this crime comes at a time when the SM entered itself in the Act of birth of a child as a biological mother, thereby actually committing intellectual forgery and receiving a forged document (part 4 of Article 358 of the Criminal Code of Ukraine), thus it giving SM quasiright to dispose of this child and established effective control over this child. Proof of the SM's intention to take possession of the child was documented in the receipt of the SM's Birth Certificate, in which she is recorded as the child's mother and thus the child's origin is fixed from her. For the actions provided for in part 4 of Art. 358 of the Criminal Code of Ukraine, provides for punishment for SM in the form of a fine of up to fifty non-taxable minimum incomes or arrest for up to 6 months, or restriction of liberty for up to 2 years. At the same time, the actions of the registrar's office staff, other officials who drew up these documents for the SM and did not know and could not know about the falsity of the data provided to the SM, should not be regarded as complicity in this criminal offense. These individuals have been used as instruments of crime and therefore their actions should not lead to criminal liability. Given that the act provided for in part 2 Art. 146 of the Criminal Code of Ukraine, is an ongoing crime, persons who joined the SM in the described period of time are co-perpetrators of this crime. The participation of an accomplice as a co-perpetrator will affect the imposition of punishment in the direction of increasing its extent or size, as opposed to complicity in a crime in the role of accomplice or instigator. Thus, the relatives of the SM, her friends who helped her during the illegal keeping of the child, automatically add the degree of their criminal responsibility.

If the motive for committing a crime under part 2 of Art. 146 of the Criminal Code of Ukraine is the disclosure of information about the biological parents of the child, which they want to keep secret, in this case  the qualification of the actions of the SM must change. In my point of view, in this case to part 2 of Art. 146 of the Criminal Code should be added  Art. 189 («Еxtortion») of the Criminal Code of Ukraine, which provides for liability in the form of restriction of liberty for up to 5 years or imprisonment for the same period (Situation 2).

Confirmation of the subject of this crime (part 2 of Article 146 of the Criminal Code) is the relevant case law and the definition of SM in the recommendations of the World Health Organization, in which SM is defined as a gestational courier, and therefore has no rights to the child, born in a surrogacy program.

Situation 3. In practice, there is often a problem of distinguishing between related crimes under part 2 of Article 146 of the Criminal Code of Ukraine and Article 147 ("Hostage-taking") of the Criminal Code. However, the difference in responsibility is significant (10 years in prison). To distinguish them, you should pay attention to the recipients to whom the request of the person who committed the act. It is considered that in the case of hostage-taking, the claim of the perpetrator should be widespread (not to a limited number of persons), as a rule, not to one person interested in the release of the hostage. In our case, the SM claims to receive a monetary reward from one or two persons - the child's potential parents. Therefore, I think, that on this basis, the corpus delicti under Art. 147 of the Criminal Code of Ukraine in the actions of the SM will be absent.

Situation 4. The SM abducted the child and decided to sell it,  to receive in exchange for the child a reward in the amount greater than stipulated in the Surrogacy Agreement. In this situation, it is important to qualify the actions for selfish motives to prove that the SM wanted a monetary larger reward, because receiving a monetary reward in the amount provided for in the Surrogacy Agreement will not be considered a mercenary motive - these are the conditions of a legal civil agreement.  Delimitation of part 2 of Article 146 of the Criminal Code on the basis of cupidity from Part 3 (on the basis of a minor victim) 149 of the Criminal Code of Ukraine should be carried out according to the legal status of the parties to the agreement (in the context of the agreement under Article 149 of the Criminal Code). To qualify the actions of the SM under Art. 149 of the Criminal Code of Ukraine, these parties (SM and the purchaser of the child) should not have a legal right to dispose of the child. The absence of the right to a child in the SM has already been described. The absence of other persons (acquirers) of the legal right to the child may be confirmed by the absence of a Surrogacy Agreement in which the acquirer is the potential parent of the child, or the authorized person of the potential parents, or the absence of other legal document etc).

Situation 5. It will be much easier to differentiate between the actions of the SM regarding the abduction of a child if he / she is found to have no mercenary motive. In this case, only Art. 146 and 149 of the Criminal Code of Ukraine. Article 147 of the Criminal Code of Ukraine is immediately excluded in the absence of a sign of mercenary. Regarding the presence in the act of SM signs of a crime under Art. 149 of the Criminal Code of Ukraine, the landmarks can be taken as described above (the status of the parties to the agreement). If the actions of the SM are aimed at potential parents (legal acquirers), then Art. 149 of the Criminal Code of Ukraine will not be. However, part 2 of Art. 146 of the Criminal Code of Ukraine.

Situation 6. If the SM first abducted a child for selfless motives, and any other (such as postpartum depression, etc.), and then decided in exchange for a child to receive a monetary reward - it will be a set of crimes described above. Regarding the qualification of actions for a set of crimes, the general rules on qualification should be followed.

Separately, I note that there should be no choice between the initiation of criminal proceedings and a civil dispute. These are two types of legal liability, which in these cases should be imposed on the SM in parallel. In civil proceedings, a lawsuit must be filed to challenge maternity and amend the Birth Record and the Child's Birth Certificate. In criminal proceedings, a legal assessment of the fact of committing a socially dangerous act by the SM must be provided, especially in relation to a minor.

Therefore, the conclusion from the above can be divided into two categories according to the subjective orientation.

For lawyers, especially law enforcement officers, the aim was to demonstrate the presence of corpus delicti / crimes in the described actions of the SM in the formal alleged absence (presence of a Child's birth certificate). But the presence of the need to initiate criminal proceedings on the fact of committing criminal offenses and the inadmissibility of refusal to commit these acts, citing the existence of civil relations.

For potential SMs, the goal is to prevent them from committing such excesses by increasing their legal culture. After all, instead of doing a good deed and receiving a reward for it, she can get up to 15 years in prison with confiscation of her property, confiscation of her biological child, destruction of her family.