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Austrian Journal of Humanities and Social Sciences 1 - 2 (2021)
ISSN 2310-5593 (Print) / ISSN 2519-1209 (Online)
Science of law
Science of law ^Oрмспруflенцмq
UDC 347.2/.3 DOI: 10.29013/AJH-21-1.2-62-67
H. L. KRUSHELNYTSKA, 1
1 National Academy of Internal Affairs, Kyiv, Ukraine.
HOLDERS OF THE PROPRIETARY RIGHT TO HUMAN EMBRYOS IN VITRO UNDER THE LAW OF UKRAINE
Abstract.
Purpose: to study the circle of holders of the proprietary right to human embryos in vitro given their limited transferability.
Methods: the author has used the methods of analysis, comparison, consolidation and analogy.
Results: it has been established by the author that holders of the proprietary right to embryos in vitro in Ukraine may be patients within the assisted reproductive technology programmes who have turned eighteen, regardless of their citizenship, as well as health care facilities that treat infertility in case of anonymous donation of their unused embryos in vitro by patients. It has been determined that donors of reproductive cells and surrogate mothers do not acquire the proprietary right to embryos in vitro.
Scientific novelty: the article contains the comprehensive analysis of the holders of the proprietary right to embryos in vitro and establishes the conditions for their inclusion into the circle of patients of in vitro fertilization programmes and health care facilities under the law of Ukraine.
Practical importance: the main provisions and conclusions made in the article may be used in the scientific and practical activity in the area of assisted reproduction to determine the circle of the persons that may own, use and dispose of human embryos in vitro.
Keywords: embryo in vitro; assisted reproductive technology; proprietary right; holders of the proprietary right.
For citation: Krushelnytska H.L. Holders of the proprietary right to human embryos in vitro under the law of Ukraine, 2021, No. 1-2. - P. 62-67. DOI: DOI: https://doi.org/10.29013/AJH-21-1.2-62-67
Introduction
Application of the assisted reproductive technology (hereinafter the «ART») by fertilisation of gametes in the special laboratory vessels outside the human organism has resulted in appearance of embryos in vitro, which are studied by numerous scientists trying to explain this phenomenon in terms of law. The legal nature of the embryos artificially created during infertility treatment is still a matter of discussion. Some scientists believe that they
should be treated as legal subjects while other characterise them as legal objects, and the third category see sui generis phenomenon in them. Nevertheless, any approach provides for research into the legal regime of embryos in vitro. The author of this article supports the opinion that embryos in vitro pertain to special objects of civil rights until they are implanted into the uterus since they meet the principal criteria of such objects. Given that embryos in vitro may be owned, used in ART programmes,
disposed of, and be subject to legally significant actions, including alienation thereof for the benefit of other subjects in the assisted reproduction area, there is no doubt that embryos in vitro are special objects of the proprietary right. At the same time, due to the unconditional limitation oftheir civil circulation, human embryos in vitro may only belong to certain participants of such circulation as prescribed by the law, so special attention should be paid to research into the holders of the proprietary right to embryos in vitro. It should be noted that this issue has been poorly studied in the civil law science due to its complex moral and ethical aspect, but some scientists have paid some attention and studied the proprietary right to embryos in vitro and potential holders thereof. Such scientists include A. V. Maifat, Yu. F. Druzhynina, A. S. Sha-banova, Ye. Ye. Bohdanova, V. A. Trubina, A. P. Holo-vashchuk and others. Following the research, the author deems it necessary to consider the circle of persons that may hold the proprietary right to human embryos in vitro at the example of the law of Ukraine.
The Results of the Study
According to the Procedure for Application of the Assisted Reproductive Technology approved by Order of the Ministry of Health of Ukraine No. 787 dated 9 September 2013 (hereinafter the «ART Procedure»)1, the ART is the infertility treatment techniques where manipulations involving reproductive cells, certain or all stages of preparation of reproductive cells, fertilisation and embryo development processes before implantation into the patient's uterus are performed in vitro. Thus, assisted creation of embryos outside the human organism in Ukraine is only possible to treat infertility by means of the ART. According to A. S. Shabanova, in his case, the proprietary right to the embryo in vitro is held by the subjects of the legal relationship in the area of assisted reproduction. It means that the proprietary right may be held by different subjects (medical facility, patient or donor) depending on the purpose of provision of the reproductive material [1]. In the opinion ofYu. F. Druzhynina, the proprietary right to embryos in vitro may be held by: 1) any gamete donors; 2) only identified donors; 3) only the couple (or single woman) participating in the ART programme; 4) medical facility [2, p. 134].
Given Clause 1.1 of the ART Procedure where it is stated that it governs the relationship between patients (women, men) and health care facilities that facilitate application of the ART, one of the subjects in the area of assisted reproduction that may acquire the proprietary right to human embryos in vitro is patients of the in vitro fertilisation programme (women and men). In this regard, it should be established which persons may be patients of the ART programmes and, accordingly, holders of the proprietary right to embryos in vitro since they are created out of the patients' gametes and, where necessary, by means of donor reproductive cells.
Thus, it is prescribed by Part 7 of Article 281 of the Civil Code of Ukraine2 (hereinafter the «CC of Ukraine») that a woman or man of full age may be subject to treatment programmes for the assisted reproductive technology based on therapeutic indications, in accordance with the procedure and terms and conditions established by the law. It is stated in the ART Procedure that women and/or men of full age are entitled to the ART treatment programmes based on therapeutic indications. Moreover, according to Article 34 of the CC of Ukraine, the persons of full age are the ones who have turned eighteen. It means that the legislative authorities associate possibility of infertility treatment with certain age rather than the person's full civil capacity. At the same time, it is not clear from the clauses of the ART Procedure whether the condition of full age applies both to men and women if in vitro fertilisation is used by the spouses. The point is that according to Article 23 of the Family Code of Ukraine3, the persons who have reached the marital age (eighteen years old) may get married. However, the person who has turned sixteen and filed an application may be granted the right to marry based on the court decision if it is established that marriage is for his or her benefit. Thus, the legislative authorities permit marriage before the persons have reached full age, but they do not expressly provide for applicability of the ART treatment programmes to them, which can evidently be connected with achievement of the sexual and physical maturity necessary to participate in the in vitro fertilisation programmes, including drawing of reproductive cells. By the analogy of Article 290 of the CC of Ukraine where
1 Procedure for Application of the Assisted Reproductive Technology approved by Order of the Ministry of Health of Ukraine No. 787 dated 9 September 2013. Official Bulletin of Ukraine. 2013. No. 82, p. 446, Article 3064, act's code 69367/2013 (in Ukrainian).
2 Civil Code of Ukraine. Bulletin of the Verkhovna Rada of Ukraine (BVR), 2003, No. 40-44, Article 356 (in Ukrainian).
3 Family Code of Ukraine. Bulletin of the Verkhovna Rada of Ukraine (BVR), 2002, No. 21-22, Article 135 (in Ukrainian).
it is stated that a donor of reproductive cells may only be the legally capable natural person of full age, it can be assumed that reproductive cells may be extracted for in vitro fertilisation only from the persons of full age and civil capacity. At the same time, according to the ART Procedure, one of the infertility treatments is intrauterine insemination, which may be performed by introducing prepared sperm cells into the uterus during the ovulation, in particular, under the conditions of the natural menstrual period and without drawing of the patient's oocytes. However, no embryos in vitro are created in this case. Given the above, it should be specified that patients of the ART treatment programmes may be women and/or men as well as spouses provided that they have turned eighteen. It should also be prescribed by the law that patients of the ART programmes have to be fully capable persons able to be aware of their actions and(or) manage them since the ART Procedure mentions mental disorders as counter-indications for in vitro fertilisation only if they affect the ability to carry and deliver a baby. It will prevent abuse of the analogy of law and guarantee protection of right and interests of the persons with limited capacity or incapacitated persons from reproductive abuse.
As reasonably noted by A. P. Holovashchuk, the law of Ukraine does not establish the maximum age limit for the ART although, in her opinion, Ukraine must establish the maximum age for women to apply the ART at 49, given the fertile age of women and life span of women and men in Ukraine [3, p. 190]. This approach is used in Article 6 of the Law of the Republic of Belarus «On the Assisted Reproductive Technology» No. 341-3 dated 7 January 2012 1, where it is stated that in vitro fertilisation and assisted insemination are not applied to the female patients who are older than 50.
According to H. I. Abramenko, although the professionals express their opinion on the need to establish the maximum age for the women who intend to use assisted reproduction methods at the legislative level, the scientist herself believes that the age condition can be considered to be one of the therapeutic counter-indications for the ART, so this issue should be resolved by the board of doctors on a case-by-case basis [4, p. 45]. This stance looks less radical and allows avoiding discrimination of women in the reproduction area based on their age and sex.
The second condition for application of in vitro fertilisation programmes where embryos are created is therapeutic indications for ART treatment. The ART Procedure lists the indications (female and male infertility) and counter-indications (certain diseases and special structure of the organism) for in vitro fertilisation. Also, if in vitro fertilisation is applied by the spouses or the woman and the man who want to have a common child, but are not officially married, therapeutic indications (infertility) may apply to both or one of them. At the same time, O. A. Khazova does not rule out future extended definition of the concept of therapeutic indications, in particular, by including the psychological component, «non-standard» sexual orientation [5, p. 203]. In her turn, Ye. S. Mitriakova does not rule out possible future extension of the range of patients of the ART programmes with the persons who are not ready to give birth to a child for the social reasons not connected with infertility [6, p. 32]. In any case, the law of Ukraine does not permit the patients' participation in infertility treatment programmes by creation of embryos in vitro due to social indications.
It should also be noted that applicability of the ART is provided for one patient and a couple of patients, a woman and a man, who, in their turn, can be officially married or in civil partnership. It is important to elaborate this issue to study the proprietary right to embryos in vitro not only to determine holders of the proprietary right to embryos, but also to separate private and joint ownership.
Thus, when it comes to application of in vitro fertilisation technology to one patient, it is not clear from the ART Procedure whether it is about women only, or a man as well since the legislative authorities mostly use the term «female patient» alongside the term «patients» although the term «patient» is also used from time to time. In theory, a single man can be a patient of the ART programme involving surrogacy. Following the analysis of Section IV of the ART Procedure, the surrogacy conditions permit application of the ART to infertile single man if the embryo is created out of the reproductive cells (sperm cells) of the patient since the genetic relationship between the patient and the child is necessary, and out of the donor female reproductive cells (oocytes) since the surrogate mother must not have an immediate genetic
1 On the Assisted Reproductive Technology: Law of the Republic of Belarus, 7 January 2012, No. 341-3. Consultant Plus: Belarus. Scientific Centre of Legal Information. Republic of Belarus.- Minsk, 2017.
Science of law - PREMIER Austrian Journal of Humanitiesand Social Sciences 1 -2 (2021)
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relationship with the child. Moreover, the documents necessary for surrogacy as provided for by Clause 6.11 of the ART Procedure include the notarised copy of the written joint agreement between the surrogate mother and the woman (man) or spouses. It is another argument proving that the ART may also be applied by a single infertile man. Otherwise, deprivation of such men of an opportunity to treat infertility would constitute unreasonable and unfair gender discrimination.
It should also be noted that the law of Ukraine does not restrict applicability of in vitro fertilisation programmes to foreign citizens and stateless persons.
Thus, holders of the personal proprietary right to embryos in vitro in Ukraine may be a man or a woman of full age, regardless of citizenship, who have therapeutic indications for the ATR treatment programmes via fertilisation (male or female infertility) and have no legal counter-indications for in vitro fertilisation. Also, holders of the joint proprietary right to embryos in vitro may be the spouses if both woman and man are of full age, one of them or they both have therapeutic indications for the ART treatment programmes (male or female infertility) and have no legal counter-indications for in vitro fertilisation. Under the same conditions, the woman and the man who are not officially married, but wish to have a common child may hold the joint proprietary right to embryos in vitro.
In addition to the patients of the ART treatment programmes, the proprietary right to embryos in vitro may also be held by the health care facilities licensed for medical practice and having proper equipment. In the opinion of A. S. Shabanova, the medical facility may acquire the proprietary right to the embryo in vitro created out of the donor's egg cell and sperm by virtue of the civil laws on acquisition of the proprietary right to a new item [7, p. 117]. This approach is evidently associated with the scientist's stance according to which reproductive donation is an act of disposal of the biological material, with transfer of the proprietary right thereto to the medical facility [8, p. 84]. The same opinion is expressed by Ye. V. Halyshkina, who notes that the medical facility acquires the proprietary right to embryos in vitro as a result of specification since it owns the donated embryos [9, p. 44]. However, it should be noted that embryos in vitro may be created out of donor gametes only in order to treat infertility of the specific patients. As reasonably noted by Yu. F. Druzhynina, the persons who apply to the health care facility for medical aid and infertility
treatment pay without limitation for the cost of the donor gametes (if there are therapeutic indications for use thereof). It means that in case oocytes or sperm are used to create the embryo, the medical facility transfers the proprietary right thereto to the persons receiving medical aid since the patients pay for the biomaterial used. Therefore, as of the time of creation of the embryo in vitro, the rights to the gametes will be held by the patients [2, p. 134]. At the same time, comprehensive analysis of the ART Procedure enables making the conclusion that the health care facility may hold the proprietary right to embryos in vitro when they are received via anonymous donation. In particular, it is stated in Clause 5.1 of the Procedure that donation of embryos is the procedure within which donors provide their embryos to be used to treat other persons' infertility based on the written voluntary consent. It is noted in the informed voluntary consent to embryo donation proposed in Annex 11 to the ART Procedure that the donors give the health care facility their permission to use their embryos in the treatment programmes of the assisted reproductive technology for other patients (recipients), who are not designated by the donors in advance. Thus, embryos may be alienated to the health care facility, which is free to dispose of the donated embryos when it applies the ART to its patients.
Since the only embryo donors may the patients of in vitro fertilisation programmes who have unused cryopre-served embryos left after the child is born, it is impossible to say that the donors hold the proprietary right to embryos in vitro since donation is associated with alienation of the proprietary right. Donors of reproductive cells (both anonymous and identified) will not hold the proprietary right to embryos in vitro as well since they voluntarily alienate the proprietary right to their gametes for the benefit of the health care facility and have no influence on their future use.
Although a surrogate mother is also a separate subject in the reproduction area, she may not hold the proprietary right to embryos in vitro since embryos in vitro in case of the ART and surrogacy are created by the patient's or patients' «order». Moreover, the embryos created within the surrogacy programme must have the genetic relationship with at least one future parent (if the patients are a couple) or directly with the single male or female patient while the surrogate mother must have no genetic relationship with the embryo in vitro. As duly noted by V. A. Vatras, a surrogate mother under the sur-
rogacy agreement undertakes to undergo the procedure of implantation of the human embryo conceived by the genetic parents [10, p. 73], who will own the embryos in vitro created out of their biomaterial (own or donated one). Thus, the surrogate mother does not own the gametes used to create the embryo in vitro, and it ceases to be the object of civil rights following the implantation into the woman's body; the ownership relationship is not applicable to the implanted embryos at all.
Conclusions
Based on the above, the reasonable conclusion is that the holders of the proprietary right to embryos in vitro may be: single men as patients of the ART programme involving surrogacy; single women as patients of the in vitro fertilisation programme; spouses or the man and the woman who are not officially married, as patients
participating in the ART programme. Moreover, the patients as holders of the proprietary right to the artificially created embryos are natural persons of any citizenship who have turned eighteen. At the same time, it should be prescribed by the law that full civil capacity as a necessary condition for participation in the ART programmes and, accordingly, the condition to acquire the status of the holder of the proprietary right to the embryos artificially created during treatment of their infertility. Furthermore, the holders of the proprietary right to embryos in vitro may be the health care facilities that treat infertility with ART in case patients donate their unused embryos in vitro anonymously. In their turn, donors of reproductive cells and surrogate mothers do not acquire the proprietary right to the embryos artificially created during the ART.
References
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Druzhinina, Ju. F. Pravovoj rezhim jembriona in vitro (Legal regime of embryo in vitro). Russian Law Journal, 2017, No 12, pp. 129-140 (in Russ.).
Golovashhuk, A. P. Pravove reguljuvannja dopomizhnyh reproduktyvnyh tehnologij (Legal regulation of assisted reproductive technologies). Journal of Kyiv University of Law, 2013, No 2, pp. 189-191 (in Ukr.). Abramenko, G. I. Primenenie vspomogatel'nyh reproduktivnyh tehnologij: pravovoe regulirovanie (Application of assisted reproductive technologies: legal regulation). Actual problems of modern science, 2015, No 4, T. III. pp. 42-46 (in Russ.).
Hazova, O. A. Pravovye aspekty primenenija vspomogatel'nyh reproduktivnyh tehnologij v Rossii (Legal aspects of the use of assisted reproductive technologies in Russia). Modern medical law in Russia and abroad, Moscow, 2003, pp. 191-205 (in Russ.).
Mitrjakova, E. S. Problemy pravovogo regulirovanija surrogatnogo materinstva v Rossii (Problems of legal regulation of surrogacy in Russia). Bulletin of the Academy of Russian Encyclopedias, 2004, No 4(14). pp. 30-33 (in Russ.). Shabanova, A. S. Osnovanija priobretenija medicinskoj organizaciej prava na biologicheskij material, ispol'zuemyj pri primenenii metodov vspomogatel'nyh reproduktivnyh tehnologij (The grounds for granting the medical institution of the right to biological material used in the application of methods of assisted reproductive technologies). North Caucasian legal bulletin, 2019, No 3. pp. 114-121 (in Russ.).
8. Shabanova, A. S. Pravovoe polozhenie donorskogo reproduktivnogo materiala (The legal regime for donated reproductive material). Matters of Russian and International Law, 2019, Vol. 9, Is. 7A, pp. 82-90 (in Russ.).
9. Galyshkina, E. V. Jembrion in vitro kak ob#ekt grazhdanskih prav (The in vitro embryo as an object of civil rights). The legal system and the modern state: problems, trends and development prospects: collection of articles of the IV International scientific and practical conference, Penza: MCNS «Nauka i Prosveshhenie», 2019, 150 p. (in Russ.).
10. Vatras, V. A Sub'ektnij sklad pravovidnosin shhodo implantacii embriona ditini zhinci iz genetichnogo materialu podruzhzhja (Subjective composition of legal relations regarding the implantation of a child's embryo to a woman from the genetic material of the spouses). Bulletin of the Khmelnytsky Institute of Regional Management and Law, 2002, No 4. pp. 73-74 (in Ukr.).
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Science of law - PREMIER Austrian Journal of Humanitiesand Social Sciences 1 -2 (2021)
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- ISSN 2310-5593 (Print) / ISSN 2519-1209 (Online) -
Information about the author
Krushelnytska Hanna Leonidivna, Candidate ofJuridical Sciences, Senior Lecturer of the Department of Civil
Law Disciplines, National Academy of Internal Affairs, Kyiv, Ukraine.
Address: 03035, Ukraine, Kyiv, Solomianska Square, 1, tel.: +38 (067) 238-12-14
E-mail: krushelnytska.hanna@gmail.com
ORCID iD: https://orcid.org/0000-0001-9934-6973
