INHERITANCE OF CRYOPRESERVED HUMAN REPRODUCTIVE BIOMATERIAL: CURRENT ISSUES OF JUDICIAL PRACTICE

Abstract

The article notes the relevance of consolidating the concept and legal regime of human biomaterial in civil legislation. In this regard, the provisions of the draft Law on Amendments to the Civil Code of Ukraine in connection with the update (recodification) of the provisions of Book One are analyzed. The problem of unregulated determination of the further fate of cryopreserved reproductive biomaterial and human embryos in vitro in the event of the death of the person (persons) from whom they originate is noted. The author studies current domestic judicial practice on the consideration of issues regarding the transfer of rights to cryopreserved reproductive biomaterial and human embryos in vitro. It is noted that courts resolve disputes regarding the possibility of posthumous use of cryopreserved reproductive material of patients, based on the norms for the protection of personal nonproperty rights of individuals. At the same time, it is emphasized that such an approach is not entirely successful in the context of posthumous reproduction, since it is more expedient to use the provisions of inheritance law, as indicated by both the already introduced changes in the current legislation and the draft laws in the field of assisted reproductive technologies. The article notes that given the purpose of cryopreservation of reproductive biomaterial and human embryos in vitro and the close genetic connection with the deceased, it seems that the inclusion of such objects in the inheritance is not devoid of bioethical problems, therefore it requires separate regulation. In this regard, it is proposed, by analogy with the provisions of Article 1227 of the Civil Code of Ukraine, to provide for the possibility of transferring rights to cryopreserved biomaterial and human embryos in vitro in the order of singular succession, under which separate rights and obligations are transferred to the successor. The author analyzes the problem of the transfer of rights to cryopreserved human embryos in vitro in the event that they belong to a spouse or a woman and a man who are not in a registered marriage to each other, on the right of joint ownership. The possibilities of inheritance of cryopreserved human embryos in vitro are investigated both in the presence of a joint disposition made during the spouses’ lifetime in the event of death, and in its absence.