Reproductive material after the death of one of the partners: what notaries propose to change in the Civil Code

The issue of reproductive rights after a person’s death in Ukraine is gradually moving from a narrow medical environment into the sphere of a large legal discussion, as the development of assisted reproductive technologies has posed questions to the legislation that practically did not exist before. The draft of the new Civil Code proposes to allow a person to determine during his life who will be able to use his reproductive biological material after death to have a child.

The greatest attention of lawyers was attracted by the proposal to extend such a right not only to official spouses, but also to couples living in one family without registering the marriage. It was this part of the draft that raised the most questions from the Notarial Chamber of Ukraine, whose representatives stated serious practical difficulties associated with verifying family relationships, certifying such decisions, and monitoring the execution of the will of a deceased person.

New mechanism in the Civil Code

The draft of the new edition of the Civil Code proposes a separate mechanism for disposing of reproductive biological material in the event of a person’s death. The idea is that a person could officially determine during their lifetime who will have the right to use their reproductive cells for fertilization using modern medical technologies, including surrogacy.

To do this, the authors of the draft propose creating a separate type of will that will not concern property, but a person’s personal decision regarding their own biomaterial. In the document, a person will be able to specify in advance a specific person who will have the right to use reproductive material after their death.

The idea of ​​such a mechanism arose because modern reproductive technologies allow biological material to be stored for years, and in some cases, used after a person’s death. Because of this, the legislation requires a clear procedure that will determine who has the right to make decisions regarding such material and how the deceased’s will will be confirmed.

The draft of the new Civil Code provides that the husband or wife of a deceased person will have the right to use reproductive material. They also want to provide such an opportunity to a person of the opposite sex who lived with the testator in one family without an official marriage and was not in another registered marriage.

This norm became one of the most discussed during the online discussion dedicated to draft law No. 15150 and the legal regulation of reproductive rights. The event was organized by the Committee of the Association of Lawyers of Ukraine on Medical and Pharmaceutical Law together with the Committee on Civil, Family and Inheritance Law.

If the marriage is confirmed by state registers and official documents, then the fact of living in one family without registration often has to be established through judicial procedures. In the practice of Ukrainian courts, such cases are often related to inheritance conflicts, division of property or confirmation of the status of a family member. This raises the question of how a notary should verify such relationships at the stage of certifying a will or during the implementation of the deceased’s will. The draft code does not yet provide a clear answer as to which documents should be considered sufficient confirmation of cohabitation without marriage.

What the Notarial Chamber said

Representatives of the Notarial Chamber of Ukraine supported the idea of ​​legal regulation of issues related to reproductive rights, but emphasized that such mechanisms require detailed prescribed procedures. The chamber drew attention to the fact that human reproductive rights are personal non-property in nature, and therefore their implementation requires the most accurate legal registration.

Notaries believe that the will mechanism is suitable for such decisions, since civil legislation already provides this transaction with a high level of legal protection. In addition, the case law on wills is quite extensive and allows this tool to be used to implement a person’s personal will after their death.

The Notary Chamber also recalled that a will is interpreted in the legislation as a personal disposition of an individual in the event of death, and not exclusively as a document on the transfer of property. That is why lawyers allow the possibility of drawing up a separate will regarding reproductive biological material.

What problems do notaries see

The main concern of notaries is related to the practical implementation of the new norms. If the project is adopted in its current form, notaries will be obliged to verify not only the fact of marriage or family ties, but also the fact of living as one family without official registration.

In practice, this means the need to analyze various documents that can confirm the joint life of people: place of residence, joint expenses, household management or other circumstances. However, the draft law does not yet define an exhaustive list of such evidence and does not explain how a notary should assess their sufficiency.

The Notary Chamber drew attention to the fact that in many cases the fact of living together as a family is established only through the court. Because of this, there is a risk of situations where the notary will not be able to unequivocally confirm the status of a partner or disputes will arise between close relatives of the deceased and the person claiming to use the biomaterial.

Separately, lawyers draw attention to potential conflicts between medical institutions, relatives and persons specified in the will. If the procedure for implementing such decisions remains unclear, this may lead to legal disputes regarding the right to use reproductive material or the execution of the will of the deceased.

The draft of the new Civil Code contains provisions on the possibility of destroying reproductive biological material in cases specified by law, but the procedure itself is not yet detailed. Because of this, it is unclear who exactly will control the implementation of such a decision and how the legality of the actions of medical institutions will be confirmed.

The draft also does not define a clear system of interaction between notaries, reproductive medicine clinics and state registers. So far, there is no answer as to who will be responsible for checking documents, how a person’s will will be recorded, whether such an order can be changed and how it will be canceled.

The Notarial Chamber believes that without detailing these procedures, the new norms may create a significant number of legal conflicts. That is why representatives of the professional community insist on finalizing the provisions on a will regarding reproductive biological material even before the adoption of the new Civil Code.