THE RIGHTS TO SURROGATE MOTHERHOOD FOR SAME-SEX PARTNERSHIPS

Abstract

The growing populist sentiment in society and, as a consequence, the reactive adoption of new restrictive legal acts that discriminate and unjustifiably restrict citizens' rights, is a major challenge for the scientific community and human rights in Ukraine. The issue of reproductive rights is one of the most important elements of common discriminatory and often unscientific narratives both in the EU and in Ukraine. Therefore, the scientific community has to take up this challenge and, by examining and exploring the various aspects of the right to reproduce, uphold the rule of science and the rights of Ukrainans, especially in this domain. Surrogate motherhood is always used in combination with other methods of assisted reproductive technology. Thus, surrogate motherhood, as a method of treatment, is burdened not only with legal uncertainty, but also with additional necessary steps (taking donor material, instrumental insemination, etc.) that precede assisted gestation.It is believed that all assisted reproductive technologies, including surrogacy, are treatment methods; therefore, their use cannot in any way depend on a person's social status, including gender self-identification, the fact of marriage or same-sex partnership.The list of medical grounds for surrogate motherhood is defined in the Order of the Ministry of Health of Ukraine On Approval of the Procedure for the Use of Assisted Reproductive Technologies in Ukraine. However, we emphasize that the list should be expanded to include diagnoses of transsexuality and other gender identity disorders according to the International Classification of Diseases. Thus, according to item 10 ofthe Unified Clinical Protocol of Primary, Secondary (Specialized) and Tertiary (Highly Specialized) Medical Care: Gender Dysphoria, reproduction opportunities for FtM patients may include freezing of oocytes (eggs) or embryos. Frozen gametes and embryos can later be used for delivery by a surrogate mother. The question stands whythis possibility is not considered in the protocol for the MtF transition with the subsequent possibility of delivery by a surrogate mother. Obviously, with the MtF transition, even with gender reassignment surgery, including the operation the genitals, the woman is not capable of independent childbearing. Such a woman can thus exerciseher right to reproduction only by fertilizing a donor egg with her sperm and then having the embryo that is genetically hers carried to term by a surrogate mother. The issue of male identity for the origin of the donor material (sperm) also needs separate legal regulation. However, in our opinion, this social group should not be discriminated against in access to surrogate motherhood as an assisted reproductive technology.