Legal regime of unimplanted embryos in vitro from the positions of doctrine, civil law and judicial practice

Анотація

The article deals with the problem of determining the legal regime of unimplanted embryo in vitro, which due to the significantdevelopment of the field of assisted reproductive technologies, is increasingly at risk of its illegal use, or even illegal creation for commercialor other non-infertility treatment. The author analyzes different doctrinal approaches in the civil law of Ukraine and Germany,through the prism of the current legal regulation and practice of the European Court of Human Rights. The paper supports the positionon the right to the embryo as a personal immaterial right and expands it in the sense that such a component of reproductive rights asthe right to determine the future fate of embryos in vitro will also belong to persons to whom assisted reproductive technologies havebeen applied and as a result these embryos where created. Resulting from this analysis, the position on the inadmissibility of the interpretationof the unimplanted embryo as an object of property law is expressed. To support this point of view, the author cites the judgmentof the European Court of Human Rights in Parrillo v. Italy, in which the court emphasized the inadmissibility of the assessmentof embryos as an object of property rights. In particular, the paper proposes to define the regime of unimplanted embryo in vitro as anobject that has a personal immaterial connection to persons for whose treatment of infertility (parents-customers) it was created. Andit is these individuals who will have the right to determine its future. In this regard, it is proposed to reflect this concept in the cuurentregulation in partricular Procedure for the use of assisted reproductive technologies. From the proposed wording, first, it will followthat in vitro embryos created as a result of the partial or full use of donor biological material at the request of persons to whom assistedreproductive technologies are applied will have this personal connection only with the future parents and there will not be an ethicaldilemma regarding who will have the right to determine their future fate (biological parents (reproductive cell donors) or future parents).Secondly, it will also mean that embryos can only be created for reproductive purposes, and an institution providing reproductive ser -vices will not have the right to create or dispose of embryos in vitro at its own discretion without the proper consent of its future parent.And, thirdly, it will exclude the possibility of interpreting such embryos as objects of property rights.

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