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Будущее уже здесь: конституционная природа репродуктивного права на рождение ребенка с использованием вспомогательных технологий
The evolution of human rights is inextricably linked with the development of public institutions formed under the influence of changing reality. Thanks to research in the field of reproduction and genetics, significant advances have been made in the field of human reproductive and genetic health, namely, diagnostic studies of the fetus (embryo) have been introduced both in the womb and in vitro when using in vitro fertilization and surrogacy. The study focuses on the analysis of the constitutional and legal characteristics of the use of preimplantation and prenatal diagnosis of the embryo (fetus) in the use of assisted reproductive technologies in order to prevent the birth of children with genetic (inherited) mutations, and in cases where this is not possible - early preparation and adaptation to a severe life–threatening diagnosis of a born child as to its further well-being, and in the aspect of assistance to biological parents.
The article proposes the expansion of the system of constitutional human rights through the allocation of an independent subjective reproductive right using auxiliary and genetic engineering technologies. The author puts forward a hypothesis about the complex nature of the right under consideration, taking into account its direct connection with "traditional" constitutional rights: the dignity of the individual; the right to respect for private life; the right to health protection and medical care; protection of childhood, motherhood and fatherhood. In addition, the main distinctive characteristics of the allocated right are analyzed, including consideration of the reproductive and genetic well-being of the mother and the unborn child as a special object of protection, as well as defining the role of public authorities in organizing access to high-tech means of reproductive genetics as a prerequisite for the existence of the right in each particular state.
The procedure for the implementation of the allocated independent right in the practice of the European Court of Human Rights is also considered. The author categorizes the main decisions on this issue on disputes about access to reproductive law using assisted and reproductive technologies and disputes over compensation for damage when providing false information about the genetic characteristics of the fetus (embryo).