PROTECTION OF A PERSON'S REPRODUCTIVE RIGHTS IN CRYOPRESERVATION CONTRACTS: JUDICIAL PRACTICE

Abstract

The development of assisted reproductive technologies (hereinafter referred to as ART) in Ukraine and the growing practice of embryo cryopreservation have revealed significant gaps in current legislation. The absence of clear provisions in the Civil Code and the Family Code regarding the legal status of biological material and the possibility of its posthumous inheritance creates conditions for complex judicial disputes. The issue becomes particularly acute in the context of protecting individual reproductive autonomy and addressing ethical challenges related to the posthumous use of genetic material. This study provides a comprehensive analysis of scholarly sources, regulatory acts, and judicial practice to identify key legal conflicts.

Summary of the main research findings. The article analyzes judicial practice from 2024–2025 concerning the disposal of cryopreserved embryos (cases No. 203/4924/23 and No. 758/7618/24). The legal nature of the in vitro embryo is examined, and the erroneous application of property law regimes to it is substantiated. Conflicts between the imperative provisions of the Order of the Ministry of Health of Ukraine No. 787 and an individual’s right to reproductive choice guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms are highlighted. The study establishes the impossibility of lawful enforcement of court decisions ordering the transfer of embryos to third parties (the parents of the deceased) due to non-compliance with the requirements of Article 123 of the Family Code of Ukraine. The risks of criminal liability for medical personnel under Article 149 of the Criminal Code of Ukraine are revealed in cases where surrogacy procedures are carried out outside the legally established framework. The necessity of introducing a “biological will” and a centralized registry of reproductive material is substantiated.

Conclusion. Thus, a cryopreserved embryo is defined as a special non-property object; the right to dispose of it is inextricably linked to the individual and cannot be subject to inheritance. It is proven that overcoming existing legal conflicts requires the adoption of a specialized Law “On Assisted Reproductive Technologies,” which would establish the priority of the donor’s lifetime expression of will, unify cryopreservation agreements, and expressly prohibit the use of surrogacy by extended family members, thereby ensuring the protection of the rights of the living female donor and the future child.