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What does the controversial law on deferred parenthood provide for?

Zoryana Skaletska, Partner at Ario Law Firm, Minister of Health in 2019-2020.

Almost every legislative initiative related to the healthcare sector causes a resonance in society. The new law on ensuring the right of military personnel to biological parenthood has not escaped the scandal.

“The government is going to ban the children of fallen patriots” – this kind of post is common 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 funding, not about regulating the use of reproductive technologies.

How it all started

To date, Ukraine has no law that would regulate the use of reproductive technologies. There is only one very old order of the Ministry of Health. But this type of technology is developing much faster than our regulations.

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

As a result, in 2022, a large-scale discussion on the use of reproductive technologies was launched in society.

Most reproductive technology clinics are private. However, there are also state and municipal healthcare facilities that provide such services. In 2022, when this issue was widely discussed, the emphasis was on the fact that such medical procedures are mostly paid for. 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 parenthood (motherhood) 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 key issue. This discussion was also complicated by another aspect: if a serviceman dies, this is posthumous donation. There is a very cautious approach and a thorough moral and ethical discussion in the world.

The main requirement in countries that allow posthumous reproduction is that a clear procedure is established and that a person gives a clear written consent to the use of his or her reproductive cells after death.

In fact, this is a moral dilemma for the whole society. That is why, for example, we still do not allow unmarried people to use certain technologies. This is a question of developing the family institution, a question of child custody if something happens to the birth mother or father. In short, this is an issue for the whole society, perhaps a new social contract.

That is why the explanatory note to draft law No. 8011 (which was passed and is now being discussed) stated that the government should determine the procedure for using reproductive cells after the death of a serviceman (and equivalent categories).

A scandalous law

So, we finally have a law that has been voted on, the essence of which is a list of free medical services to which military personnel are entitled. In particular, it refers to the collection, cryopreservation (in simple terms, “freezing”) and storage of their reproductive cells paid for by the state (i.e. not at their own expense, but from the budget).

It is worth noting that the state will fund this service only for the period of martial law. That is, after it ends, the serviceman will have to pay for further storage himself. In addition, the Cabinet of Ministers has yet to resolve all these issues.

In short, here are the results of analysing the text of the legislative initiative:

• free of charge collection, cryopreservation and storage of reproductive cells (this is the provision on financing),
• this free-of-charge is valid only during martial law (again, it is a question of financing),
• the draft law did not aim to regulate the procedure for applying and exercising the right to parenthood.

And now for an important nuance. When we read laws, we can often find a separate section “Final and Transitional Provisions” at the end of the text after the norms that are established and binding. The purpose of this section is to determine the order of entry into force of the provisions and norms specified in the main body. For example, when they come into force: immediately after publication or after a certain period of time.

These final and transitional provisions also provide “instructions” to Government on what else needs to be done to make the law “work”. In particular, in order to implement this law (on free services), a wide range of persons entitled to use this procedure is also defined, as well as the fact that the procedure for referral should be developed by the Cabinet of Ministers.

So, when we see this phrase “in case of death or declaration of death in accordance with the established procedure 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 says that if you want to cryopreserve and store reproductive cells at public expense, the state will not pay for them and will not be responsible for them in the future.

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

Also, this phrase should be interpreted as meaning that the state finances the possibility of exercising the right to paternity (motherhood) of a living person, whose right it has guaranteed by this law and the Constitution. In other words, during the lifetime of a serviceman, the state pays for the preservation of the chance to become a father (mother), but no more.

Major repairs, not cosmetic changes

The right of the second spouse to use posthumously the reproductive cells of the deceased spouse should finally be regulated by the relevant Law on the Application of Reproductive Technologies, which has been under development for over 15 years.

It is this law that would be able to dot the i’s and cross the t’s not only in this issue, but also in the practice of surrogacy, which is scandalous for Ukraine in the international arena. I am more than sure that after the victory, international partners will demand that this issue is finally resolved as well. I would like to emphasise that regulation does not mean prohibition or restrictions.

It’s just a matter of recalling the well-known situation in Ukraine with the use of reproductive technologies, which has not developed very positively. And all this happened precisely because of insufficient regulation of the procedure for the use of reproductive technologies, when a woman from Chernihiv gave birth in 2011 at the age of 66.

Some time later, it became known that she had been abusing her child. So the city council decided to take the child away. This story influenced parliamentarians back then, and in 2012, the age of women who can use reproductive technologies to become pregnant was limited to 51.

I hope that the current public outcry and the 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.

Source: Ukrayinska Pravda. Life.