Сурогатне материнство та торгівля людьми: критерії відмежування та підстави кримінальної відповідальності

The article addresses the issue of surrogacy, a modern method of assisted reproductive technologies that raises numerous ethical and legal controversies. The lack of clear differentiation between legal and illegal actions complicates law enforcement practices. The focus is on distinguishing lawful surrogacy from human trafficking. It is argued that the main conditions ensuring the legality of surrogacy include: 1) the presence of medical indications for the procedure; 2) the proper documentation of all necessary papers, particularly the contract between the surrogate mother and the intended parents, in compliance with current legislation; 3) a genetic link between the child and at least one of the intended parents; 4) the absence of a genetic connection between the surrogate mother and the child; 5) the surrogate mother’s full voluntary participation. The study establishes that the contract between the surrogate mother and the intended parents is key to the legality of a surrogacy program. Its absence may indicate human trafficking. Human trafficking can occur both in compliance with laws and in their violation, involving either the surrogate mother or the child. Illegal activities associated with using surrogacy as a tool for human trafficking may include: 1) recruiting women through coercion, abduction, fraud, blackmail, material or other dependence of the victim, their vulnerable condition, or bribery of a third party controlling the victim to obtain consent for their exploitation; 2) trading, moving, hiding, transferring, or receiving a child born via surrogacy, which, as practice shows, is often carried out to grant certain individuals the right to parenthood, i.e., unlawful adoption. At the same time, it is crucial to acknowledge that such criminal acts concerning the child may pursue other forms of exploitation. Criminal legal assessment should address the actions of the surrogate mother, the intended parents, and individuals facilitating or ensuring the application of this assisted reproductive technology.