Posthumous reproduction as a guarantee of the reproductive right implementation for military servants and other persons

Abstract

Introduction of assisted reproductive technologies, change in the capabilities of humanity in the field of reproduction of its own kind, caused states to establish their own rules for regulating social relations in this field, taking into account the existing legal traditions, customs and mentality. It is emphasized that in view of the demographic crisis in Ukraine, which is gradually deepening in connection with full-scale aggression, the death of Ukrainian citizens as a result of hostilities and the outflow of human resources, the issue of improving state policy in the field of reproductive medicine is one of the most important issues today. In this regard, in the conditions of martial law, the task of the state is the special protection of the rights of those persons who oppose the aggressor at the risk of their own lives. One of the ways to protect the fundamental right to procreate for this category of citizens is posthumous reproduction. However, while not prohibiting posthumous reproduction, the state did not develop a clear position on admissibility, conditions and grounds for its use. As a result, national legislation in this area is contradictory. The article assesses the acceptability of posthumous reproduction, its impact on the realization of the fundamental human right to reproductive reproduction, in particular for military personnel. The recently adopted Law of Ukraine "On Amendments to Certain Laws of Ukraine Regarding Ensuring the Right of Military Servicemen and Other Persons to Biological Parenthood (Maternity)” is analyzed. It was established that the legislative norms, which provide for the mandatory disposal of reproductive cells of deceased servicemen, actually negate the purpose of this Law. In addition, arguments are given that its norms do not meet the requirements of the Constitution of Ukraine, including the provision of equality of citizens. Additionally, the position that the law contains gaps is substantiated, as it regulates only the procedure for handling reproductive cells, but does not resolve the issue of storage and further handling of zygotes and embryos. At the same time, it has been proven, including with reference to other legislative acts, that they are different in nature, since the latter contain the genes of both parents. It is noted that the submitted draft law dated January 29, 2024 No. 10437, which is designed to eliminate the shortcomings of the above-mentioned Law, does not address this gap, and therefore needs to be revised.