Application of assisted reproductive technologies: Supreme Court judge discusses modern approaches in judicial practice

The protection of the rights of a child born as a result of artificial insemination, challenges to paternity in the context of assisted reproductive technologies (ART), legal aspects of surrogacy, and related issues were addressed by Supreme Court judge in the Civil Cassation Court Olena Bilokon during the scientific and practical roundtable titled “Assisted Reproductive Technologies: Current Legal and Human Rights Challenges”.

The event was initiated by the Committee on Medical and Pharmaceutical Law and Bioethics of the Ukrainian National Bar Association (UNBA) in cooperation with the UNBA Committee on Family Law. Its main goal was to discuss draft laws on assisted reproductive technologies in terms of compliance with the rule of law values, to analyze both national and European Court of Human Rights (ECtHR) case law, to identify human rights problems and guarantees through the lens of judicial practice, and to develop a model for regulating ART in Ukraine.

Olena Bilokon delivered a presentation titled “Application of Assisted Reproductive Technologies: Modern Approaches in Judicial Practice”.

In addition to the rights and obligations of adults, cases in this category may also concern the interests of children – interests to which primary attention must be given in accordance with Article 3 of the Convention on the Rights of the Child, a principle that has been further developed in national legislation and judicial application.

A landmark case of note establishes a prohibition on discrimination against a child based on the time of birth and the method of conception (Resolution of the Administrative Cassation Court within the Supreme Court dated October 19, 2022, in case No. 420/5/22).  

The Administrative Cassation Court within the Supreme Court concluded that the right of a child born as a result of artificial insemination – which took place more than 10 months after the death of the parent(s) – to receive a survivor’s pension as part of the right to social protection cannot be made dependent on the time of the child’s birth, since such a birth may occur even after the expiration of 10 months following the death of the breadwinner.

Olena Bilokon also drew attention to the Resolution of the Civil Cassation Court of the Supreme Court dated April 28, 2020, in case No. 520/12514/18, which addresses the impossibility of challenging paternity when assisted reproductive technologies were used with prior consent.

The Court held that a person who gave consent to the application of assisted reproductive technologies and was recorded as the father of the child based on a joint application for recognition of paternity has no right to challenge that paternity – even if the consent was given orally. When deciding such cases, courts must be guided by the best interests of the child and ensure a balance between the interests of the child and those of the parties involved.

The Court took into account, in particular, that if the man had objected to the procedure involving fertilization with his biological material, he would not have engaged in the matter at all, shown any initiative, or gone to the reproductive medicine clinic. Therefore, taking into account the balance of interests between the father and the child, the Civil Cassation Court of the Supreme Court concluded that in this case the interests of the child prevail.   

The judge analyzed the Resolution of the Civil Cassation Court of the Supreme Court dated April 5, 2023, in case No. 742/2669/21. In that decision, the Court concluded that when resolving a case concerning the recognition of paternity in respect of a child born through the application of assisted reproductive technologies, the court must consider the entire body of evidence, including in particular: the man’s written consent to the use of such technology involving his biomaterial, the fact that the parties lived together, and the recognition of biological paternity in court. Where there is written consent from the man to the application of assisted reproductive technologies using his biomaterial, conducting a forensic genetic examination is not mandatory for establishing paternity.

In the Resolution dated August 3, 2022, in case No. 344/1962/19, the Civil Cassation Court examined the issue of challenging paternity when assisted reproductive technologies were applied without the husband’s consent to the use of donor material. The Court stated that the father’s consent to the use of donor embryos in infertility treatment is of fundamental importance for the emergence of his parental rights and obligations toward the child born with the help of assisted reproductive technology methods, since such a treatment method excludes any biological relationship between him and the child. Failure to inform the father about the application of such methods constitutes grounds for excluding information about the child’s father from the civil status record of the child’s birth.

In addition, the speaker analyzed the Resolution of the Civil Cassation Court of the Supreme Court dated October 23, 2019, in case No. 150/628/16-ц, in which the Court concluded that if pregnancy did not occur as a result of a “surrogacy” programme, the consequences of the contract for the provision of medical services (surrogacy) cannot be applied.

In summary, Olena Bilokon noted that the right to conceive a child and to resort to reproductive medicine for that purpose is protected under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, since this choice constitutes a form of expression of private and family life.

Olena Bilokon’s presentation is available at: https://court.gov.ua/storage/portal/supreme/prezentacii_2025/Prezent_Zastos_dopom_tehnologii.pdf