Право/ Теория государства и
права
Yaroslava Marko
Lviv, Ukraine
The
right to procreation and reproductive right:
The right to life
is a fundamental human right and its quality is directly dependent on the
ability to have children, to create a family. The indicated right is regarded
in the legal aspect in the context of two understandings.
Firstly, heredity
classically is understood as the right to procreation, the reproduction of
living being because of the opportunity to be a mother or a father of the
child. Art. 16 of the Universal Declaration of Human Rights states: "Men
and women of full age have the right, without any limitation due to race,
nationality or religion, to marry and to create a family." Art. 12 of
European Convention on Human Rights also separately identifies the right to
create a family that contains a right to motherhood and fatherhood.
On the national
level also is pointed out the right to procreation in the context of the right
to a family. According to ch. 3, art. 51 of the Constitution of Ukraine -
family, childhood, motherhood and fatherhood are protected by the state.
The right to
procreation is a general category, due to the biological criteria is
implemented according to gender through motherhood and fatherhood. In the legal
literature motherhood is defined as "provided by the law to a women an
opportunity to exercise reproductive function (birth to healthy children),
properly support them and educate, to respect the rights and freedoms of
others, love for his/her family and, his/her nation, his/her homeland "[1, p. 78].
So the right to
motherhood should not be confused with the right to birth, a much broader
phenomenon that creates social and legal relationships during all the life and
is not concluded after the fact of birth. We also emphasize that
motherhood involves moral and ethical criteria (e.g. parenting) and economic
criteria (support of their children till adulthood).
In the scientific
literature we find different interpretations of the right to paternity. Usually
it is regarded as a fact of parentage of a child by a certain man, legally
certified with a record in state bodies of birth registry offices [2, p. 92]. So, in this case it contains only the legal aspect of
heredity. At the current stage of the struggle for gender equality at the stage of
social development and implementation of moral and spiritual civilization
patterns we believe that we should not reduce parenting exclusively to the
biological criterion. The father and mother have equal rights and responsibilities for
children. Therefore it is necessary to agree with experts who argue the need for
advanced interpretation of the fatherhood that "is not only the right to
be recorded by the child's father, but also the right to participate in the
education and support." [3,
p.99]
Nowadays quite
often in the literature of legal orientation, researchers point out complex
reproductive rights. The indicated is associated primarily with the trend of medical law as a
separate branch of law.
The reproductive
rights, according to various researchers, should be considered as "a set
of universal rights and freedoms, to ensure the implementation of fundamental
inalienable human right to procreation - regardless of gender, ethnicity,
marital status, health status, including the right to protect reproductive
health, the use of additional reproductive technologies "[4, p. 821].
Thus, the first
criterion of correlation between the right to procreation and reproductive
right is that the first holds the second. Therefore, the right to
procreation involves various aspects, including the right to education of the
child and others. Reproductive - it's only the opportunities for biological reproduction
and set of rights associated with it. Therefore, in this aspect, we consider more
appropriate definition of Ryabenko O. where reproductive rights are defined as
personal non-property right of any individual independently, freely and at
his/her own discretion to decide on the child's birth, the number and interval
between birth and use of reproductive technologies in appropriate cases
stipulated by law, and the right to refuse to continue their own kind [5, p.151].
It's emphasized
that the right to reproduction of kind can be realized not only by birth of
kinship children. Art. 3 of Family Code of Ukraine states that the family is
created based on marriage, blood relationship, adoption, or on other grounds
not prohibited by law and those that do not contradict the morals of society. The
right to motherhood and fatherhood refers not only to their own children but
also to adopted children.
The legal norms in modern democratic state do not
define any differences between the methods of paternity acquisition and a
complex of rights and obligations associated with them, as we believe, the
right to procreation - is the possibility of a human as a biological being to
reproduction and heredity, which is implemented through motherhood and
fatherhood.
The second aspect
of ratio is precisely the focus on the fact that reproductive right is
concerning the right to procreation directly through natural
reproduction, the right to procreation also contains other features of
human heredity, such as adoption as well.
Literature:
1.
Сімейне право України [Текст] : [підручн.] /
за ред. В. С. Гопанчука. — К. : Істина, 2002. — 304 с.
2. Сімейне
право України [Текст] : [підручн.] / Л. М. Баранова, В. І. Борисова, І. В.
Жилінкова та ін. ; за заг. ред. В. І. Борисової та І. В. Жилінкової. — К. :
Юрінком Інтер, 2004. — 264 с.
3. Ієвіня О. В. Право на материнство та
на батьківство як особисті немайнові права / О. В. Ієвіня //Університетські наукові
записки. - 2011. - № 2. - С. 97-100.
4.
Свитнев К.Н. Нужен ли закон о ВРТ?
Вспомогательные репродуктивные технологии и их правовое регулирование / К.Н.
Свитнев // Национальная идентичность России и демографический кризис :
материалы ІІ Всероссийской научной конференции. – М. : Научный эксперт, 2008. –
С. 821
5. Рябенко О. В. Право фізичної особи на репродукцію (відтворення): поняття та історико-правові аспекти становлення / О. В. Рябенко // Науковий вісник Ужгородського національного університету.
Серія : Право. - 2015. - Вип. 30(1). - С. 148-151.