STATE MONOPOLY ON DECISIONS CONCERNING ABORTION: PROSPECTS FOR CRIMINALIZATION AND ITS SIGNIFICANCE IN THE CONTEXT OF UKRAINE

Abstract

The proposal contained in the draft of the new Criminal Code of Ukraine (version as of January 14, 2026) to establish criminal liability for causing the death of or serious injury to a human fetus has necessitated a comprehensive examination of legislative approaches to the existing regulation of induced termination of pregnancy in Ukrainian law, the factors underlying contemporary approaches, as well as certain technical aspects of creating both individual statutory provisions and comprehensive legal regulation mechanisms. The article examines both the regulatory and protective components of the legal regulation mechanism in this area. In particular, it analyzes approaches to legal regulation under the Civil Code of Ukraine and the Fundamentals of Ukrainian Legislation on Health Care, the grounds for amendments to legislative acts and the rationale behind them, as well as the approaches of the World Health Organization in this area. Accordingly, the article examines the reasons for the formation of existing approaches, their legal, economic, social, and ethical dimensions, and draws conclusions regarding their effectiveness. Official statistics of the Ministry of Health of Ukraine on induced termination of pregnancy, as well as the specific features of their presentation in the media, are examined. The role of the Ministry of Health of Ukraine in shaping contemporary state policy in the field of induced termination of pregnancy is considered, as is the proportionality of regulation in the field of human rights at the level of laws and subordinate legislation. In addition, the grounds for restricting a woman’s right to undergo an induced termination of pregnancy depending on the duration of pregnancy are examined from the perspectives of the principle of personal autonomy and the principle of paternalism. The article also addresses the issue of the inconsistency of Ukrainian legislation governing the provision of medical services in this area with international standards established by the World Health Organization, as well as the relationship between the concepts of illegal and unsafe abortion. In analyzing the body of protective provisions, the article provides a comparative legal analysis of the current regulation and that proposed by the concept of the draft new Criminal Code of Ukraine (version as of January 14, 2026). In order to assess the proposed concept, the relationship between the content of regulatory and protective provisions in the current legislation and the draft new Criminal Code of Ukraine concerning the protection of relations involving conceived and unborn children is examined. In particular, the article considers the relationship between the concepts of “human being” and “human fetus” and the legal grounds for determining the object of criminal-law protection in the relevant legal relations. In this context, general theoretical issues concerning the purpose of criminal-law regulation, the relationship between regulatory and protective law, and the possibility of protective legal relations existing in the absence of regulatory ones are also considered. Specifically, where the state has no interest in regulating certain social relations–by determining their content, identifying their subjects, and establishing the rights and obligations of such subjects–or ignores such regulation, the question arises whether the state may nevertheless claim the right to impose repression on the participants in the respective social relations on account of their involvement in such relations. The article advances the view that the absence of legal relations entails the absence of an object of legal protection, including criminal-law protection. Possible practical consequences of implementing the proposed concept of criminal-law protection of relations concerning conceived and unborn children are projected, including the potential development of an illegal market for medical services and an increase in corruption risks in the activities of relevant pre-trial investigation authorities. Existing concepts governing related legal relations are also considered, including the criminal-law protection of newborn children, liability of medical professionals, application of the doctrine of necessity, as well as, briefly, concepts concerning the value of life in Ukrainian legislation and the issue of the father’s liability. Furthermore, in the context of criminallaw regulation in the field of induced termination of pregnancy, the article examines the content of and criteria for the progressiveness of legislation on criminal liability. The update of the draft new Criminal Code of Ukraine on May 1, 2026, and the removal from it of a number of provisions concerning criminal liability for causing the death of or serious injury to a fetus do not eliminate the need to sustain the discussion outlined above, both in society and among legal professionals. On the contrary, these developments highlight a number of issues that remain relevant today, particularly those concerning the determination of a person’s legal status and the scope of individual freedom in a democratic state.