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Конституционно-правовой спор о посмертной репродукции: презумпция согласия или несогласия?
The subject. The article considers a constitutional-legal dispute on posthumous
reproduction, which became the subject of consideration in the Constitutional Court of the
Russian Federation in 2024. On February 11, 2025, the Constitutional Court of the Russian
Federation issued a decision recognizing that norms of the legislation on social security are
violated the Constitution of the Russian Federation. This decision gives rise to a number of
new legal problems in the field of constitutional, civil, inheritance, medical law and social
security law. At present, there is no legislative regulation of posthumous reproduction in
the Russian Federation.
The purpose of the article:
– to establish the presence or absence of positive obligations of the state in relation to the
somatic right to reproductive choice;
– to determine the presumption of consent or disagreement to posthumous reproduction;
– to propose possible measures to prevent constitutional conflicts related to posthumous
reproduction.
The methodology of the study includes general scientific methods (analysis, synthesis,
description) and legal methods, method of constitutional conflict diagnosis. In addition to
this, historical method was also applicable. The article also uses a comparative legal method
to analyze the legislation and practice of foreign countries such as the USA, France and
Japan.
Main results. The author proposes to eliminate the legislative gap by establishing at the
statutory level a presumption of consent or disagreement in accordance with the following
legislative formulas:
– presumption of consent: posthumous reproduction using the sex cells (or embryos
created with their help) of a deceased person is not permitted if the medical organization
was informed at the time of using the relevant assisted reproductive technologies that the
person, during his or her lifetime, declared his or her disagreement with the use of his or
her sex cells (or embryos created with their help) for the purpose of procreation after death;
– presumption of disagreement: posthumous reproduction using the sex cells (or embryos
created with their help) of a deceased person is permitted only if the medical organization
has, at the time of using the relevant assisted reproductive technologies, a written expression
of the person's will, given during his or her lifetime, of consent to the use of his or her sex cells
(or embryos created with their help) after death for the purpose of procreation