Posthumous reproduction: legal challenges in Ukraine and worldwide

Abstract

The article is devoted to the analysis of legal issues of posthumous reproduction — a relatively new phenomenon arising at the intersection of assisted reproductive technologies, bioethics, and law. The study examines the current state of legal regulation of posthumous reproduction in Ukraine and foreign countries, identifies key legal conflicts arising in this area, in particular concerning inheritance, establishment of parentage, and protection of children's rights. Special attention is paid to the relevance of introducing appropriate legal reforms in Ukraine under martial law and the demographic crisis. Ways to improve legislation are proposed, taking into account international experience and the balance of interests of all participants in legal relations.

Keywords: posthumous reproduction, assisted reproductive technologies, bioethics, inheritance law, establishment of parentage, children's rights, demographic crisis, military personnel.

Introduction

The rapid development of assisted reproductive technologies (hereinafter — ART) over recent decades has fundamentally changed perceptions of childbirth, family, and parenthood. Technologies of in vitro fertilization, cryopreservation of gametes and embryos have opened unprecedented opportunities for overcoming infertility. However, progress in this field has posed unprecedented challenges to legal systems, one of the most complex of which is posthumous reproduction — the use of gametes or embryos of a deceased person for conceiving a child after their death.

This phenomenon raises fundamental questions: does a person have the right to become a parent after death? What is the legal status of a child conceived using the biological material of a deceased person? Do inheritance and social rights extend to such a child? The answers to these questions vary significantly depending on the jurisdiction, indicating the absence of unified approaches at the international level. For Ukraine, which is in a state of war and facing unprecedented demographic losses, the issue of legal regulation of posthumous reproduction acquires particular relevance and practical significance.

Concept and Forms of Posthumous Reproduction

Posthumous reproduction is the use of reproductive biological material (gametes or embryos) of a deceased person for conceiving a child. In scholarly literature, three main forms of this phenomenon are distinguished:

1. Use of cryopreserved gametes for fertilization after the death of one of the partners;

2. Posthumous retrieval of gametes from the body of the deceased (the most controversial form);

3. Transfer of embryos fertilized during the lifetime of both partners after the death of one of them.

Each of these forms gives rise to specific legal, ethical, and medical issues that require separate regulation.

Posthumous Reproduction in Ukraine: Current State and Prospects

Current Ukrainian legislation does not contain special regulation of posthumous reproduction. The main normative legal act regulating the application of ART is the Procedure for the Application of Assisted Reproductive Technologies in Ukraine, approved by Order of the Ministry of Health of Ukraine No. 787 dated 09.09.2013. However, this document does not provide for procedures related to the use of reproductive material after the death of a person.

At the same time, in 2023, the Law of Ukraine "On Amendments to Certain Laws of Ukraine on Ensuring the Right of Military Personnel and Other Persons to Biological Paternity (Maternity)" dated 22.11.2023 No. 3496-IX was adopted. This law created legal prerequisites for the preservation of reproductive material of military personnel, but the issue of its use after the death of a person remains unregulated.

Legislative Initiatives

In the scholarly community, the need to adopt a special law regulating relations in the field of posthumous reproduction is actively discussed. In particular, it is proposed:

1. Establishment of the storage period for cryopreserved material after the death of a person — free of charge for three years for military personnel, with the subsequent possibility of paid storage;

2. Determination of the period during which posthumous reproduction may be carried out — one calendar year from the date of the partner's death;

3. Introduction of mandatory prior written consent of the person for the use of their reproductive material after death;

4. Regulation of the legal status of children born as a result of posthumous reproduction, in particular their inheritance rights and the right to social benefits.

Demographic Context and the Need for Reforms

In the context of full-scale war, the issue of posthumous reproduction acquires special significance. Losses among military personnel, many of whom did not have time to exercise their right to parenthood, create prerequisites for the use of ART as a tool for preserving the gene pool of the Ukrainian people. As noted in scholarly literature, the protection of reproductive health of the population in times of war is an important prerequisite for the post-war recovery of the state.

Foreign Experience of Legal Regulation

The analysis of the legislation of foreign countries shows significant variability of approaches to the regulation of posthumous reproduction — from complete prohibition to relatively liberal regulation.

Countries with a Permissive Approach

Belgium is an example of a country with clear legislative regulation. According to the Law of 15 March 2007, posthumous reproduction is permitted on condition of prior written consent of both partners, recorded in the ART agreement. Time limits are established: embryo transfer may take place no earlier than six months and no later than five years after the death of the man.

Italy has recently liberalized its legislation, permitting posthumous reproduction. Notably, Italian legislation does not establish any time limits for this procedure, which is unique among European countries.

Spain, Portugal, Greece, and the Netherlands also permit posthumous reproduction on condition of prior consent of the deceased, with various variations of waiting periods and procedural requirements.

Countries with a Prohibitive Approach

At the opposite pole is France, where posthumous reproduction is categorically prohibited. Article L. 2141-2 of the French Public Health Code directly establishes that no medical assistance in procreation may be initiated after the death of one of the members of the couple. The European Court of Human Rights in the case of Baret and Caballero v. France confirmed the legitimacy of this prohibition, finding that it pursues legitimate aims — "the protection of morals" and "the protection of the rights and freedoms of others."

Serbia is an example of a country with a complex legal situation, where the issue of posthumous reproduction is the subject of active court disputes and scholarly discussions.

Key Legal Issues

Inheritance Rights of Children

One of the key legal conflicts arising in connection with the development of assisted reproductive technologies is the problem of determining the inheritance rights of children conceived and born after the death of one of the parents. In most foreign jurisdictions that permit posthumous reproduction, such children are recognized as heirs provided that they were conceived using the genetic material of the deceased, and the latter gave prior written consent to this during their lifetime. However, even in the presence of such consent, the application of general rules of inheritance law faces significant obstacles related to the time factor.

As is known, inheritance legal relations are regulated by Book Six of the Civil Code of Ukraine (hereinafter — the CC of Ukraine). Article 1222 of the CC of Ukraine stipulates that heirs may be persons who are alive at the time of the opening of the inheritance, as well as persons conceived during the lifetime of the testator and born alive after the opening of the inheritance. This provision is based on the Roman principle of nasciurus (a child who has already been conceived but not yet born may be considered an heir). Thus, the current legislation of Ukraine protects the interests only of those children whose conception took place during the lifetime of the testator, even if the birth occurred after their death.

The situation is further complicated by the six-month period for accepting the inheritance, established by Article 1270 of the CC of Ukraine. Heirs have the right to submit an application for acceptance of the inheritance within six months from the moment of opening of the inheritance (i.e., from the date of the person's death). This period is preclusive — its expiration generally results in the loss of the right to inheritance (in the absence of valid reasons and a court decision on its reinstatement).

This is precisely where the most acute conflict arises. Unlike natural conception, posthumous reproduction involves the use of cryopreserved genetic material of the deceased, which allows conception not only after the father's death but also after a considerable period of time — after 1, 3, 5, or even 10 years after the opening of the inheritance. Technologically, such a possibility exists due to cryopreservation. If, for example, a woman decides to use the cryopreserved sperm of her deceased husband five years after his death, the child will be born even later — after six or seven years from the opening of the inheritance.

It is obvious that such a child:

1. Was not conceived during the lifetime of the testator (since conception occurred several years after death).

2. Was born significantly later than the six-month period for accepting the inheritance had expired.

In such a situation, the formal application of Articles 1222 and 1270 of the CC of Ukraine makes it impossible to recognize any inheritance rights for the child to the property of the deceased father, since at the time of opening of the inheritance the child had not even been conceived, and the periods for their representatives (the mother) to accept the inheritance had long expired.

Legislative resolution of this conflict will require a comprehensive approach: either the introduction of a mechanism where the child's rights are "frozen" until the moment of their birth (for example, through the appointment of a special administrator of the estate), or the establishment of a longer and more flexible period for the exercise of the right to inheritance, which would correlate with the technological capabilities of cryopreservation and the reproductive will of the deceased.

Establishment of Parentage

The issue of establishing parentage is closely linked to the question of consent. If a person during their lifetime gave written consent to the use of their biological material after death, the establishment of parentage does not raise principled objections. However, in cases where such consent is absent, there is a risk of instrumentalization of the child and violation of the rights of the deceased.

Children's Rights

The most important issue is the best interests of the child. Is it ethically justified to deliberately give birth to a child who will knowingly be deprived of one of their parents? As noted in scholarly literature, posthumous reproduction creates a tension between the right of adults to reproductive autonomy and the right of the future child to emotional and relational security.

Conditions of Consent

A universal requirement in countries that permit posthumous reproduction is mandatory prior written consent of the person to the use of their reproductive material after death. This ensures respect for the autonomy of the person and prevents abuses. The absence of such consent makes the procedure impossible.

Time Limits

Most countries establish time limits for posthumous reproduction, usually from one to five years after the person's death. These limits are aimed at ensuring the connection between the birth of the child and the deceased parent. Some countries also require a "waiting period" (for example, six months in Belgium) to allow for processing the loss and making a well-considered decision.

Conclusions and Recommendations

Posthumous reproduction is a complex interdisciplinary phenomenon requiring balanced legal regulation. For Ukraine, taking into account the demographic challenges caused by the war, the development and implementation of appropriate legislation is an extremely urgent task.

Based on the analysis of domestic and foreign experience, the following recommendations can be proposed:

1. Adopt a special law on the application of ART that would include provisions on posthumous reproduction, or introduce relevant amendments to the current Civil and Family Codes of Ukraine.

2. Introduce mandatory prior written consent of the person to the use of their reproductive material after death as a necessary prerequisite for the procedure.

3. Establish clear time frames: the storage period for cryopreserved material (for example, three years free of charge for military personnel) and the period during which posthumous reproduction may be carried out (one year from the date of death).

4. Regulate the legal status of children born as a result of posthumous reproduction, recognizing them as heirs and ensuring their right to social benefits (in particular, survivor's pension).

5. Determine the mechanism for establishing parentage after the death of a person on the basis of existing written consent.

6. Ensure an adequate level of awareness among medical professionals and lawyers regarding the legal aspects of posthumous reproduction.