POSTHUMOUS DISPOSITION OF REPRODUCTIVE BIOMATERIAL IN THE DRAFT CIVIL CODE OF UKRAINE: SYSTEMIC COHERENCE OF REGULATION AND PERSONAL AUTONOMY

Abstract

The article provides a systematic and formal legal analysis of Draft Civil Code of Ukraine No. 15150, registered on 9 April 2026, with respect to the exercise of reproductive choice and the posthumous disposition of reproductive biomaterial. The purpose of the study is to assess this civil law construction according to the criteria of systemic consistency of legal regulation and protection of personal autonomy, as well as to identify directions for its further improvement. Systemic consistency encompasses the coherence of legal provisions and the continuity of recording, modifying, and implementing a person’s wishes, whereas autonomy ensures that a person may determine the fate of their biomaterial within the limits established by law and rely on the implementation of their latest duly formalised expression of will. The authors establish that Article 305 of the Draft provides a general civil law basis for reproductive choice. However, the requirement that assisted reproductive technologies may be used solely on medical grounds makes the exercise of this right conditional upon prior confirmation of a medical indication. The article substantiates the need to distinguish between an expression of will concerning the cryopreservation and storage of biomaterial, consent to its use, and instructions regarding its fate after the person’s death. The article analyses the interrelationship among Articles 1735, 1739, and 1769 of the Draft, which determine the range of persons who may acquire the right to use biomaterial, the content and form of a separate will, and the notarised confirmation of the relevant right. It is found that the right to use biomaterial does not form part of the estate; nevertheless, it is linked to the opening of the succession and is confirmed through successionlaw procedures without clearly defining the limits of their application. It is also established that registration of the will in the Inheritance Register is combined with an obligation imposed on the testator to notify the healthcare institution independently. This does not ensure that the institution receives up-to-date information, while the consequences of failure to provide such notification remain undefined. An inconsistency between the subject matter of Articles 1735 and 1739 concerning cryopreserved embryos is also identified. The authors find that the closed list of persons who may acquire the right and the limited range of permissible instructions restrict the testator’s autonomy and do not allow the special will to be regarded as a neutral instrument for implementing the person’s wishes. It is proposed that the special will be retained as a personal disposition upon death, that the legal nature of such a disposition be defined, and that priority be accorded to the latest valid expression of will, together with the possibility of its free revocation and the establishment of a reliable exchange of up-to-date information with the healthcare institution. The limits governing the implementation of the person’s wishes should include the consent of the person in whose favour the disposition is made, the rights of other participants, and the medical admissibility of the relevant procedure.