29.11.2023Posthumous Reproduction in Israel and Ukraine: Legal Rules in Transition

Posthumous reproduction is the process by which assisted reproductive technology is used to establish pregnancy and produce genetic offspring following the death of a parent. There are different ethical and legal approaches towards this method of reproduction around the world. The online discussion "Posthumous Reproduction in Israel and Ukraine: Legal Rules in Transition" will study different positions taken by legislators in Ukraine and in Israel from a comparative-law perspective. Abstracts and Speaker's bio below.

This presentation asks what enabled the sociolegal consensus around posthumous reproduction (PR) in Israel and the establishment of a new family model in Israel, which is called "The Extended Family of Choice". This model was created either when a young man died without a surviving partner, or when the surviving parted did not want to become pregnant using his sperm. In the second scenario, the parents seek to have a grandchild with a woman who did not know their deceased son. The argument is based on analysis of the official discourse around PR, including caselaw published between 1997-2022, the Attorney General's directive, recommendations of a public committee, 5 bills, and parliamentary protocols. Co-authors` exploration of the legal rules' evolution shows that while the early bills focused on soldiers' sperm, the latest bill (from September 2022) applies to all Israeli citizens, with a unique framework for soldiers embedded within the inclusive language of the bill. The presentation argues that the Israeli covenant between familism, pronatalism, bereavement, militarism and patriarchy opened a wide gate to the revolutionary family model, and to a certain extent has also made this model mandatory in the context of soldier's deaths.

Prof. Yael Hashiloni-Dolev, Department of Sociology and Anthropology Ben-Gurion University of the Negev, Israel

Prof. Yael Hashiloni-Dolev is a Presidential Adviser for Gender Equity, Full Professor, Head of Graduate Studies at Department of Sociology and Anthropology, a sociologist of health and illness. A former member of: Israel’s National Bioethics Council (2013-20); the Gender Equality Committee - Council for Higher Education Israel (2017-23), and a former co-president of the Israeli Society for the History, Philosophy and Sociology of Science (2018-21). She is a Full Professor, the university’s vice-president for gender equity, and the head of graduate studies at the Department of Sociology and Anthropology, Ben-Gurion University of the Negev.  

Her areas of interest include the beginnings and ends of life, new reproductive technologies, cryopreservation, gender, bioethics, family studies, and contemporary parenthood.

She has authored three books: A Life (Un)Worthy of Living: Reproductive Genetics in Israel and Germany (Springer, 2007), The Fertility Revolution (Modan, 2013, in Hebrew), and New Reproductive Technologies: Social and Bio-Ethical Debates (Open University, in Hebrew). She published many articles on repro-genetics, sex selection, the embryo’s moral status, posthumous reproduction, egg freezing, and Genes and Judaism. 

She is also a co-editor of Boas, H., Hashiloni-Dolev, Y., Davidovitch, N., Filc D. and Lavi, S. (Eds). 2018. Bioethics and Biopolitics in Israel: Socio-Legal, Political and Empirical Analysis. Cambridge University Press.

Prof. Zvi Triger, the Haim Striks Faculty of Law, the College of Management

Prof. Zvi Triger is a Professor of Law at the Haim Striks Faculty of Law. He is an expert on family law and contract law. His research looks at the relationship between law and culture and focuses on gender equality, LGBTQ rights, parenting, and assisted reproductive technologies. He has written extensively on parents and children, reproductive technologies, law and culture, and legal feminism. His article on “Overparenting” (co-authored with Professor Gaia Bernstein) (UC Davis Law Review, 2011), received widespread media coverage, and continues to shape discussions of policy and social norms in scholarly discourse and research in the U.S. He is also the author of a novel, “In Case of Emergency” (2005) and two non-fiction books: “Without Words: Israeli Culture as Reflected in Modern Hebrew” (with Amalia Rosenblum, 2007), and “Crimes against Patriarchy: Adultery, Abortion and Homosexuality in Israeli Law and Culture” (2014).

Posthumous reproduction (PhR) is the conception or birth of child after death of one or both of genetic parents. PhR is mostly required in 2 cases: for cancer patients, who cryopreserved their gates or embryos before chemotherapy treatment or for military servants, who have stored their gametes or embryos before serving their military duty. In Ukraine PhR is not regulated despite huge demand. A substantial number of widows desperately look for the possibility to give birth to a child of their deceased husbands, while Ukrainian legal rules are a fertile ground for certain improvement. Recently, Ukrainian parliament has considered 4 draft laws, containing some rules on PhR. The Supreme Court of Ukraine has also decided the case, connected with postmortem birth of the child. The presentation will be dedicated to analysis of the mentioned rules and court decision. The legal status of embryos and gametes will also be analysed during the talk.

Prof. Roman Maydanyk, Taras Shevchenko National University of Kyiv, Civil Law Department, Professorial Fellow in the Queen Mary University of London

Prof. Roman Maydanyk is Dr Habil in Law, Professor at Taras Shevchenko National University of Kyiv and a Professorial Fellow in the Queen Mary University of London and Beneficiary of the British Academy under the Programe “Ukrainian Researchers at Risk”. Prof. Maydanyk has been researching the issues of property and trust law, digital assets as property, human tissue and cells, civil liability for improper provision of medical services and legal regulation of surrogate motherhood and human reproduction for 15 years and is now working at his monographs, dedicated to digital assets, medical services and human body materials in the common and civil law countries and implementation of legal models of digital assets, medical services and human body materials into the Civil Code of Ukraine. Upon Roman`s initiative model rule on digital  thing, medical services and human body materials of the Civil Code of Ukraine is now being observed by the Working Group of the Verchovna Rada of Ukraine (Ukrainian Parliament) for the recodification of the Civil Code of Ukraine, member of which Roman is, and taught in the Educational and Scientific Institute of Law of Taras Shevchenko National University of Kyiv. Roman is constantly participating in various scientific events, dedicated to private medical law, including legal status of human body materials, additional assisted technology and was invited to share his professional expertise during the Implementation Oviedo Convention into the Ukrainian Law. Roman is a Member of the Scientific and Advisory Councils under the Chairman of the Ukrainian Verhovna Rada and by the Supreme Court of Ukraine. He is a member of the European Institute of Law (Austria, Vienna) and Committee for Medical and Pharmaceutical Law and Bioethics of the National Association attorneys of Ukraine (Kyiv), and delivers lectures, dedicated to the problems of property and trust law, digital assets as property, private medical law reproduction law.

As posthumous reproduction is not regulated in Ukraine, it is interesting, who should have access to cryopreserved gametes of the deceased person. Should it be allowed to grandparents? Should it be allowed to LGBTIQ+ people? The presentation will research the ethical guidelines of ESHRE and recent ECtHR practice. The problems with inheritance and establishing child-parent relations will also be presented during the talk. The author will offer her own solutions for avoiding legal vacuum on posthumous reproduction in Ukraine.

Current Publication
Moskalenko Kateryna (2023). European Court of Human Rights Judgements on Posthumous Reproduction: Lessons for Ukraine. In Topicable Issues of Modernisation of Private Law Relations: European Experience and Perspectives: Matveesky Civil Law Readings. Responsible editor V. Tsyura, Kyiv, 103 – 106. PDF (PDF, 440 KB)

Dr. Kateryna Moskalenko , Taras Shevchenko National University of Kyiv, Civil Law Department, Visiting Scholar at UPRP “Human Reproduction Reloaded”, University of Zurich

Kateryna Moskalenko is Ph.D. in Law, Associate Professor at Taras Shevchenko National University of Kyiv and a Visiting Scholar in the University of Zurich Priority Research Programme «Human Reproduction Reloaded». Dr. Moskalenko has been researching the issues of legal regulation of human reproduction for 8 years and is now working at her habilitation thesis, dedicated to reproductive rights under Ukrainian civil law. Upon Kateryna`s initiative reproduction law is now being taught in the Educational and Scientific Institute of Law of Taras Shevchenko National University of Kyiv. Kateryna is constantly participating in various scientific events, dedicated to human reproduction and was invited to share her professional expertise during the reproduction law reform in Ukraine. As Attorney at Law, Kateryna is a member of Center of Family Law of Higher School of Advocacy in Ukraine and delivers lectures, dedicated to the problems of reproduction law for Attorneys at Law on a regular basis.