Ukraine has long been at the epicenter of a demographic crisis that is destroying the foundations of national existence. War, large-scale migration, catastrophically low birth rate pose a threat to national security, economy, and the future of the country in general. Every year, we lose more and more population, as well as the prospects that healthy and active youth could bring. In the frank discourse of politicians and scientists, the word “catastrophe” sounds more and more often. It is about preserving not only the number, but also the identity of the Ukrainian people. In a world where every nation is fighting for its place under the sun, Ukraine risks losing the most precious thing — itself. In these conditions, the issue of preserving the gene pool and reproductive health of Ukrainians needs strategic rethinking, it should become a priority of state policy.
Issues of reproductive health and preservation of the nation’s gene pool are gaining strategic importance
For data Ombudsman Dmytro Lubinets, the country’s population has decreased significantly: from 42 million in 2022 to 35.8 million in 2024. Forecasts of the National Academy of Sciences indicate that by 2051 the population may decrease to 25.2 million people. One of the key reasons for such a demographic cliff was a full-scale war. Millions of Ukrainians were forced to go abroad, many people died, and even more were injured, which affected their ability to have children.
Dmytro Lubinets emphasizes that the issue of reproductive health and preservation of the nation’s gene pool has acquired strategic importance. He proposed to include expenses for cryopreservation of reproductive cells in the State Budget for 2025, and this proposal was taken into account. Cryopreservation of reproductive cells is a vital process for preserving the gene pool of Ukraine. In the conditions of war, when thousands of Ukrainians lose their health or lives, this procedure becomes one of the few ways to ensure the continuation of the family. The ability to preserve biomaterial until the moment when it can be used guarantees the possibility of restoring the country’s demographic potential.
Without cryopreservation, many Ukrainian families will be left without a chance to have children after serious injuries or the death of one of the partners. This process is not just a medical technology, it should become a national strategy that will help preserve the legacy of soldiers and citizens who fight for the existence of the country. Each frozen cell contains the future of Ukraine, which needs protection and support at the state level. That is, cryopreservation becomes a key tool in the struggle for the preservation of the nation.
Another important step was the introduction by the state in 2024 of the new package “Treatment of infertility with the help of assisted reproductive technologies”, financed through the Medical Guarantee Program. For its implementation, 20 contracts were concluded with medical institutions, thanks to which 1,080 people have already received access to the necessary treatment. 106.5 million hryvnias were allocated to the implementation of this program, for the first time Ukrainians were given the opportunity to treat infertility with state funds. Although funding is limited so far, this step demonstrates the state’s intention to support citizens in restoring reproductive health, especially at a time when every new life is extremely important. This indicates the beginning of a systematic approach to solving the problem.
As we can see, the issues of reproductive health and the preservation of the nation’s gene pool, which were kept silent for so long in the country, nevertheless began to acquire strategic importance. Government representatives are already talking openly about them, taking certain measures, which indicates a truly catastrophic demographic situation in the state.
Legal problems of postmortem reproduction during the war
Ukraine, which is experiencing the tragic consequences of the war, is faced not only with a decreasing population, but also with new legal challenges. The war changed the lives of millions of people, affecting even the most intimate aspects of creating a family and having children. In this context, the question of observing the right of citizens to biological parenthood (motherhood), as well as postmortem reproduction — the possibility of conceiving and giving birth to children using the reproductive material of one or both deceased biological parents — has become acute. This issue, which was previously considered on a theoretical level, acquired a particularly deep practical meaning in the conditions of the war. However, along with scientific progress, society has faced difficult legal and ethical dilemmas that require immediate understanding.
Modern medical technologies increasingly challenge traditional legal approaches, forcing society to review the boundaries between what is the subject of law and what can be the object of civil legal relations. This is especially acute in the field of reproductive medicine, where the issue of the legal status of embryos and reproductive cells becomes the subject of heated discussions.
In 2023, the law “On Amendments to Certain Laws of Ukraine Regarding Ensuring the Right of Military Servicemen and Other Persons to Biological Parenthood (Maternity)” was adopted. It provides for state financing of the storage of reproductive cells of Defenders and Defenders who received injuries that affected their reproductive functions. This initiative also applies to employees of the Security Service of Ukraine, the National Guard, and the police, who perform official duties in martial law zones. This became an important step in the direction of preserving the gene pool, because it helped to create an opportunity for many families to exercise their right to parenthood.
At the same time, despite the positive developments, this law contains a norm that has become the subject of heated public debates. In the case of the death of a serviceman or his recognition as dead, the preservation of reproductive cells had to stop, and the cells were disposed of. Such a requirement appeared in the final provisions of the law and effectively nullified the right to biological parenthood, proclaimed in the document. It not only contradicts moral principles, but also violates Article 16 of the Constitution of Ukraine, which calls for the preservation of the nation’s gene pool. In addition, according to the order of the Ministry of Health of Ukraine No. 787 of 2013, after the end of the storage period, biological material is subject to destruction, unless otherwise stipulated in the contract with the health care institution. However, this order does not take into account cases where the use of biomaterial after death is the will of the deceased or his family.
Ukrainian legislation avoids complex moral and ethical assessments by not recognizing the embryo as a legal entity. Lack of legal capacity means that the embryo is not legally the bearer of rights and obligations. Instead, according to Order No. 787 of the Ministry of Health of Ukraine, reproductive cells, tissues and embryos are classified as “biological material of patients”. It follows that they can be considered as objects of law, although formally they do not belong to the categories listed in Article 177 of the Civil Code of Ukraine, such as things, property rights, results of intellectual activity, etc. However, this objectification of biomaterial contradicts their unique potential: the ability to create new life. Embryos and reproductive cells go beyond the usual concept of “things” because of their connection to the future birth of a child. And this creates a need for a legal approach that takes into account their special properties.
A public wave of indignation forced legislators to review this legal norm. On February 7, 2024, the Verkhovna Rada adopted draft law No. 10448 “On Amendments to Certain Legislative Acts of Ukraine Regarding the Preservation of the Gene Pool of the Ukrainian People”, which allows the free storage of reproductive cells of military personnel for three years after their death. It is also possible to extend this term at the expense of the person specified in the will of the deceased. This law restored the military’s right to posthumous reproduction, giving their loved ones a chance to preserve their memory and continue their lineage through the birth of a child.
On the same day, another important document was adopted as a basis – draft Law No. 10450, which amends Article 281 of the Civil Code of Ukraine. This document gives individuals the right to officially dispose of their reproductive cells in the event of death. From now on, a person’s will regarding the use of his biological material can be documented during his lifetime, and the implementation of this will will be regulated by law. This allows to ensure justice and take into account the interests of all parties, including future children.
Although these innovations are a certain breakthrough for Ukrainian legislation, they are far from perfect and only open the discussion about postmortem reproduction in Ukraine. For example, the question of using embryos created with the help of reproductive technologies after the death of one or both parents remains unanswered. There are no clear rules regarding the legal status of such embryos and the rights of newborn children to the inheritance of deceased parents. In addition, mechanisms for protecting the interests of children born through postmortem reproduction need to be detailed.
It should be noted that there are still no unified approaches to the issue of postmortem use of reproductive cells in the world. The international experience, which could be used by Ukrainian lawmakers, is also ambiguous. The 2006 recommendations of the Ethical and Legal Committee of the European Society of Human Reproduction and Embryology (ESHRE) state that consent to the use of gametes after death must be in writing prior to cryopreservation. In addition, it is proposed to establish a minimum waiting period of one year after death before starting the use of biomaterial. However, these recommendations are advisory in nature and are not binding even for EU countries. Some countries, notably Israel and the US, allow this only with explicit consent, while others avoid regulating the topic altogether.
World practice illustrates how ambiguous the solution to this issue can be. In the US, the recent decision of the Alabama Supreme Court became an explosive precedent: embryos were recognized as “already human” and, accordingly, subjects of law. This happened in the case of compensation for the destruction of frozen embryos. The verdict caused a wave of indignation among the medical community, because the new legal qualification can radically change the approaches to the work of reproductive clinics. The recognition of embryos as subjects of law threatens serious consequences for the field of assisted reproductive technologies, including the risk of closing clinics due to excessive legal risks.
This case became a mirror of future challenges for Ukraine. How to determine the status of embryos? How to take into account their potential and ensure a balance between patients’ rights and ethical standards? Is the Ukrainian legal system ready for such complex issues? In the conditions of martial law, when thousands of Ukrainians give their lives for the freedom of the country, the legislative regulation of these issues becomes not only important, but critically necessary.
The development of a law that would regulate postmortem reproduction should include the following aspects: recognition of gametes and embryos as special objects of law; creation of a legal mechanism for obtaining consent for the use of biological material after death; introduction of the state register of such documents with a guarantee of their preservation; providing counseling for the families of the victims on the legal and medical aspects of the procedure.
Therefore, the legislation of Ukraine currently does not sufficiently regulate the issue of postmortem use of germ cells and embryos, which now causes many problems. However, our country has a chance to become an example for other countries by developing humanistic, transparent and fair legislation that will take into account the interests of all participants in such complex situations
There is another urgent issue in the legal field. Since the start of the full-scale Russian invasion, Ukrainian reproductive medicine clinics have increasingly received requests from women whose husbands died on the front to use cryopreserved biological material. Sometimes, even before sending the husband to war, couples seek to record their will regarding the storage and further use of reproductive cells. In these cases, notaries are faced with the need to draw up documents for which there is actually no corresponding legal basis.
In the conditions of war, Ukrainian notaries and clinics of reproductive medicine are forced to independently look for ways out of the legal vacuum. One of the most common solutions is for patients to sign a consent form for the use of gametes in the event of death. However, such documents often do not have the appropriate legal force. According to Article 248 of the Civil Code of Ukraine, representation by power of attorney terminates upon the death of the person who issued it. That is, the will of the deceased regarding the use of his biological material remains legally unsettled.
An alternative is a certificate of a notarized application for disposal of biomaterial in the event of death. However, there are problems here too. Ukrainian legislation does not define the legal status of gametes and embryos, which complicates their legal interpretation as objects of law. In addition, there are no registers that would guarantee the preservation of such statements, and there is no mechanism for their withdrawal or change.
Ethical problems of postmortem reproduction
Postmortem reproduction also raises ethical problematic issues that are closely related to legal ones. Can biomaterial be used without the express consent of the deceased? Who has the right to decide on its use? How to ensure the best interests of a child born as a result of such a procedure? These questions remain unanswered both in Ukrainian and international legislation.
Ukraine already has examples that demonstrate how relevant these issues are. One of them is the case of a young woman from Dnipro, whose husband, a serviceman, died in battle. Before going to the front, he voluntarily surrendered his reproductive material, realizing that he might not return. After his death, the woman turned to a reproductive medicine clinic to give birth to a child with the help of assisted reproductive technologies. Her story is not unique, because every day hundreds of families lose their loved ones and strive to preserve at least part of their heritage in the form of a new life.
One of the most controversial aspects was the issue of consent. Ukrainian legislation did not provide for a clear mechanism for documenting the expression of will regarding the postmortem use of reproductive cells. In many cases, decisions were made by relatives of the deceased. For example, the mother of one of the fallen soldiers appealed to the court to allow the use of her son’s biological material, although his consent to this during his lifetime was not recorded. The trial dragged on for months, sparking heated debates in society and the medical community.
Another ethical problem is the issue of the rights and well-being of the future child. How to provide social and psychological support to children born after the death of one or both parents? Will their lives be burdened with the constant burden of remembering the tragic circumstances of their conception? These questions remain open and require not only legal, but also social reflection.
At the same time, world experience shows that Ukraine is not the only country that has faced these problems. In the USA, for example, in the state of California, a few years ago, the family of a fallen soldier won the right to use his reproductive material through a court. Similar cases took place in Great Britain, where some clinics at their own discretion allowed postmortem fertilization procedures.
However, Ukraine has a unique situation: the war not only forces people to make difficult decisions, but also creates a new reality in which the state must become a reliable partner for its citizens. That is why clear legal and ethical norms should be formed now, which will take into account the interests of all parties: the victims, their families and future children. Otherwise, we risk remaining in a situation where medical progress outpaces legal regulation, creating conflicts that are difficult to resolve either in courtrooms or in the public consciousness. In addition, Ukrainian society must learn to make such difficult decisions, because postmortem reproduction is not only the continuation of the family, but the preservation of national identity in the most difficult times.
Now Ukraine is on the verge of a demographic collapse, ignoring which threatens the existence of the nation. The war accelerated these processes, opening up new challenges: from the loss of reproductive potential to the complex ethical and legal issues of postmortem reproduction. Preservation of the gene pool and reproductive health of Ukrainians should become a national priority, because these are not only family issues, but the future of the entire country. Without clear legislative decisions, ethical standards and state support, we risk losing more than today. And this is no longer a choice, but a duty to the next generations.
