What does the scandalous law on delayed parenthood provide for?

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Not every legislative initiative related to the medical field causes resonance in society. The new law on ensuring the right of military personnel to biological parenthood did not escape the scandal.

“The authorities are going to ban the children of fallen patriots” – such posts are found on the Internet.

But if you look at the provisions of the new initiative, this is not the case. After all, the law is primarily about financing, not about regulating the use of reproductive technologies.

What started it all

To this day, there is no law in Ukraine that would regulate the issue of the use of reproductive technologies. There is only one very old order of the Ministry of Health. But technologies of this kind develop much faster than our norms.

The main problem is that a significant number of military men are at risk of losing the opportunity to exercise their right to become a father. Regarding women, the situation is even more complicated, although, unfortunately, it is less discussed.

Therefore, in 2022, a large-scale discussion about the use of reproductive technologies took place in society.

Most clinics in the field of reproductive technologies are private. However, there are also state and communal medical facilities that provide similar services. In 2022, when this issue was widely discussed, the emphasis was on the fact that such medical procedures are mostly paid. And therefore, it would be good to take care of free access to, for example, the collection and storage of reproductive cells of military personnel. After all, the right to paternity (maternity) is protected by the Constitution of Ukraine (Article 51).

In these discussions, the question of further use of these cells: how, when, in what order, was not a cornerstone. This discussion was also complicated by another aspect: if a serviceman dies, then this is a posthumous donation. There is a very cautious approach and a thorough moral and ethical discussion about it in the world.

The main requirement, which is present in countries that allow posthumous reproduction, is a clear procedure for its implementation and a clear written consent of the person for the use of his reproductive cells after his death.

In fact, it is a moral dilemma for the whole society. That is why, for example, we still do not allow the use of certain technologies by unmarried people. This is a question of the development of the institution of the family, this is a question of guardianship of the child, if something happens to the natural mother (father). In a word, this is a question for the whole society, perhaps a new social contract.

Therefore, in the explanatory note to draft law No. 8011 (which was adopted and which we are currently discussing), it was stated that the procedure for using reproductive cells after the death of a serviceman (and categories equated to them) should be determined by the government.

Read also: How the law prevents Ukrainian widows from giving birth to children of fallen soldiers. Analysis of the situation

A scandalous law

So, we finally have a voted law, the essence of which boils down to a list of free medical services to which military personnel are entitled. In particular, we are talking about the collection, cryopreservation (“freezing” in simple language) and storage of their reproductive cells paid for by the state (that is, not with their own funds, but from the budget).

It should be emphasized that the state financing of this service will only be for the period of martial law. That is, after its completion, the serviceman will have to pay for further storage himself. But, in addition, all these issues have yet to be resolved by the Cabinet of Ministers.

In short, here are the conclusions that can be drawn by analyzing the text of the legislative initiative:

• free collection, cryopreservation and storage of reproductive cells (this is a regulation on financing),
• this gratuity is valid only during martial law (again, we are talking about funding),
• the procedure for applying and realizing the right to parentage was not a goal of the draft law.

And now about an important nuance. When we read laws, often at the end of the text after the norms that are established, which are mandatory for application, we can find a separate section “Final and transitional provisions”. The task of this section is to determine the procedure for entry into force of the provisions and norms specified in the main part. For example, when it takes effect: immediately after publication or after a certain time.

Also, these final and transitional provisions give “instructions” to the Government, what still needs to be done to make this law “work”. In particular, for the implementation of this law (on a free service), a wide range of persons who have the right to use this procedure is also defined, as well as the fact that the referral procedure should be developed by the Cabinet of Ministers.

So, when we see this phrase “in case of death or recognition as dead in the established manner of a person whose reproductive rights are preserved, their storage is terminated with further disposal” we are talking about financing rather than regulation of reproductive technologies.

In particular, it is said here that if you want to cryopreserve and store reproductive cells at the expense of the state, then the state will not pay for them in the future and will not be responsible for it.

So, the conclusion is as follows: if you want to be sure of the preservation of biomaterial, then you can go to a private clinic at your own expense and minimize any risks regarding its preservation.

Also, this phrase should be interpreted so that the state finances the possibility of realizing the right to paternity (maternity) of a living person, whose right it guaranteed by this law and the Constitution. That is, during the life of a military serviceman, the state pays for the preservation of the chance to become a father (mother) during martial law, but no more.

Major repairs, not cosmetic changes

The right of the second spouse to posthumously use the deceased husband’s (wife’s) reproductive cells should finally be regulated by the relevant Law “On the Use of Reproductive Technologies”, which has been under development for over 15 years.

This law would be able to dot the “ands” not only in this issue, but also in the practice of surrogate motherhood, which is scandalous for Ukraine in the international arena. I am more than sure that after the victory, international partners will demand to finally settle this issue as well. I emphasize that regulation is not the same as prohibition or restrictions.

It is simply necessary to mention the well-known situation in Ukraine with the use of reproductive technologies, which has not received a very positive development. And all this happened precisely because of insufficient regulation of the procedure for the use of reproductive technologies, when a woman from Chernihiv, who gave birth in 2011 at the age of 66.

After some time, it became known about her cruel treatment of the child. Therefore, the city council decided to take the child away. This story even then influenced parliamentarians and in 2012 the age of women who can use reproductive technologies to get pregnant was limited to 51.

Read also: Tears clothes, scratches and hits: daughter was taken from an elderly mother in Chernihiv, who asked about it on social media

I hope that the current public outcry and rather incorrect interpretation of the law by society will influence the adoption of the long-awaited document on the use of reproductive technologies by the parliament.

Zoryana Skaletska, partner of Ario Law Firm, Minister of Health in 2019-2020, especially for UP. Life

Publications in the “View” section are not editorial articles and reflect exclusively the author’s point of view.

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