Legal nature of the agreement on surrogate motherhood

Abstract

The article analyzes the legal relationship in the field of surrogacy through the prism of contract law in order to establish differences with the composition of the crime under Article 149 of the Criminal Code of Ukraine “Trafficking in Human Beings”. We also found that the basis for the emergence of legal relations between the subjects of this type of assisted reproductive technologies is the agreement on surrogacy.
 Analyzing the legal nature of this agreement in view of its subject, we found that the surrogacy agreement is a contract for the provision of medical services, which concerns the place of such a contract in the system of contracts - the contract for the provision of actual medical services. In addition, we have established and investigated the subject of the surrogacy agreement. Thus, the subject of this agreement is directly the actions of the surrogate mother, her voluntary consent to bear and give birth to a child for parents who are deprived of such an opportunity on medical grounds to do so independently, for monetary compensation or without. Because surrogacy is a type of assisted reproductive technology, we have found that this method is one of the medical indications for the treatment of infertility. It follows that the actions of a surrogate mother are medical services.
 In our articles, we investigated the nature of the crime of “Trafficking in Human Beings” and conducted a comparative analysis of this crime with the surrogacy agreement to identify differences between them. We have also identified a key feature that distinguishes the above-mentioned concepts: the lack of a genetic link between a child born as a result of a surrogacy program and a surrogate mother. In addition, we highlight the main features that do not include the crime of “trafficking in human beings” by participants in the surrogacy program.
 In this article, we have analyzed the case law, which has made it possible to demonstrate more practically when a person’s actions constitute a crime of “Trafficking in Human Beings”, which is different from the legal nature of the surrogacy agreement.