Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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Vol.41 N° 77
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Vol. 41, Nº 77 (2023), 76-93
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Mediation as a way to resolve disputes
related to the contractual regulation of the
use of reproductive technologies
DOI: https://doi.org/10.46398/cuestpol.4177.05
Oleg S. Bilanov *
Tetiana О. Kharchenko **
Halyna V. Lavryk ***
Viktoriia V. Prokopenko ****
Abstract
The dispute resolution approach, which transfers a conict to
the jurisdictional authorities for examination, is losing its relevance
nowadays. The study presents the analysis of the practice related
to the resolution of conicts arising in the eld of application of
reproductive technologies through mediation. The authors have
analyzed statistical data, judicial practice, surveys on the use of
reproductive technologies. The advantages of resorting to mediation in the
eld of reproductive technologies are speed, lower cost, lack of formalism,
simpler procedure for resolving this type of conicts, application at the
discretion of the participants, guarantee of full condentiality, objectivity
of conict resolution with the participation of a neutral third party, taking
into account the best interests of the child. The mediation agreement is
also an independent segment of civil law and cannot be identied with a
settlement agreement, but only be the basis for its adoption already in court
proceedings. In conclusion, comparing the disadvantages and advantages
of the use of mediation in the eld of reproductive technologies, it can be
stated that the latter signicantly prevail.
Keywords: mediation and reproductive technologies; surrogacy; conict
resolution; litigation; settlement.
* Poltava State Medical University (Poltava, Ukraine) Lecturer at the Department of Philosophy and
social sciences. ORCID ID: https://orcid.org/0000-0001-9245-7638
** Poltava State Medical University (Poltava, Ukraine) Candidate of Sciences in History, lecturer at
Department of Philosophy and Social Sciences. ORCID ІD: https://orcid.org/0000-0001-9896-6126
*** Higher educational establishment of Ukoopspilka “Poltava University of Economics and Trade” Head
of the Department of Law, Doctor of Juridical Science, Professor. ORCID ID: https://orcid.org/0000-
0001-5331-4327
**** Poltava State Medical University (Poltava, Ukraine) Candidate of Sciences in Philosophy, lecturer at
Department of Philosophy and Social Sciences. ORCID ІD: https://orcid.org/0000-0002-5368-0674
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CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 76-93
La mediación como forma de resolver disputas
relacionadas con la regulación contractual del uso de
tecnologías reproductivas
Resumen
El enfoque de resolución de la controversia que traslada un conicto a
las autoridades jurisdiccionales para su examen, está perdiendo vigencia
en la actualidad. El estudio presenta el análisis de la práctica relacionada
con la resolución de conictos surgidos en el ámbito de la aplicación de
tecnologías reproductivas a través de la mediación. Los autores han
analizado datos estadísticos, práctica judicial, encuestas sobre el uso de
tecnologías reproductivas. Las ventajas de recurrir a la mediación en el
ámbito de las tecnologías reproductivas son la rapidez, el menor coste, la
falta de formalismo, un procedimiento más sencillo para resolver este tipo
de conictos, la aplicación a discreción de los participantes, la garantía de
total condencialidad, la objetividad de la resolución de un conicto con
la participación de una tercera parte neutral, teniendo en cuenta el interés
superior del menor. El acuerdo de mediación es también un segmento
independiente del derecho civil y no puede identicarse con un acuerdo de
conciliación, sino sólo ser la base para su adopción ya en los procedimientos
judiciales. En conclusión, comparando las desventajas y ventajas del uso
de la mediación en el ámbito de las tecnologías reproductivas, se puede
armar que estas últimas prevalecen signicativamente.
Palabras clave: mediación y tecnologías reproductivas; maternidad
subrogada; resolución de conictos; litigios; acuerdo.
Introduction
The development of civil law relations in the eld of application of
reproductive technologies reects the important principles of civil law,
which, rst of all, are freedom of contract, free expression of the will of
the parties, dispositivity. These principles are reected in the contractual
regulation of the above legal relations. The classic scheme for resolving legal
disputes arising between the parties to this type of agreement is to appeal to
the judicial authorities. This approach to resolving a dispute that arises, by
submitting it to the relevant jurisdictional authorities for consideration, is
currently losing its relevance.
Litigations have a number of disadvantages, including the longevity and
high cost of the process. In our opinion, taking into account the specics
of legal relations of the use of reproductive technologies, it is appropriate
to use alternative methods that would contribute to the eective solution
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Oleg S. Bilanov, Tetiana О. Kharchenko, Halyna V. Lavryk y Viktoriia V. Prokopenko
Mediation as a way to resolve disputes related to the contractual regulation of the use of
reproductive technologies
of problems arising from non-fulllment or improper implementation of
the agreement on the use of reproductive technologies. The institution of
mediation plays an important role in this situation. No special rule that
would regulate the procedure for the application of mediation is dened in
civil law.
Moreover, there is no scientic analysis of the use of mediation in the
legal relations of surrogacy. In this regard, there is a need to implement the
general legal characteristics of the mediation agreement concluded between
the participants of the surrogacy program. To do this, it is necessary to
identify the advantages and disadvantages of applying this practice.
Particular attention should be paid to the use of mediation in legal
relations with a foreign element. Currently, the solution of a number of
existing signicant legal problems can speed up the procedure for resolving
conicts regardless of the nationality of biological parents or a surrogate
mother, which will also contribute to the eective protection of the rights of
participants in all legal relations.
The purpose of the paper is to determine the theoretical and legal
basis for the mediation clause in contractual relations arising during the
application of reproductive technologies. The authors set the task, in
addition to the very meaning of such a reservation, to determine the legal
nature, the main advantages and disadvantages of the use of mediation in
the in vestigated area.
The foregoing emphasizes the relevance of the topic of the study, which
requires a deep investigation of the issue.
The fundamental studies of Shatkovsky (2019) have been devoted to
the problems of the civil law regulation of reproductive technologies and
conict resolution. The legal constructions of the use of mediation in the
resolution of the civil law conicts have been studied by Dyachenko and
Kolokolna (2020), Podkovenko (2020), Rezvorovych (2019) Mazaraki
(2018-2019).
We also took into consideration the scientic conclusions of Starikova
N.M., (Starikova, 2018) which recognized the forms of civil liability in the
eld of application of assisted reproductive technologies and contractual
relations in this area.
The conclusions made by the aforementioned scientists contributed to
the formation of the the oretical and legal basis of the study and specic
proposals for amendments to the current legislation were developed.
However, the issue of the application of mediation in emerging relations
was not subject to scientic development at all.
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Insucient scientic development in the studied area also indicates the
relevance of the chosen topic.
The theoretical basis of the study is scientic development in the form
of articles, scientic conferences. The empirical basis is the judicial practice
that has developed in the eld of disputes arising in legal relations on the
application of reproductive topics, as well as law enforcement practice that
has developed as a result of the resolution of the above types of disputes
involving a foreign element.
1. Material and Methods
The following methods of scientic cognition: dialectical materialism,
comparative, historical and legal, sociological, statistical have been used.
The analysis was carried out on the basis of statistical indicators of the
use of mediation in dispute resolution in family and civil law. Signicant
attention is paid to the resolution of disputes arising during the contractual
regulation of the use of reproductive technologies.
After analyzing the number of court decisions in the eld of dispute
resolution arising from the application of reproductive technologies
contained in the Unied State Register of Court Decisions for 2015-2022,
we can observe an obvious increase in the number of disputes resolved in
court.
Therefore, the largest number of court decisions in cases on the use
of reproductive technologies occurred in 2019 (295 cases), the smallest
(47 cases) in 2012. Since 2012, the number of court cases has gradually
increased: 2013 - 89 decisions, 2014 - 92 decisions, 2015 - 83 decisions,
2016 - 77 decisions, 2017 - 140 decisions, 2018 - 196 decisions, 2019 - 295
decisions, 2020 - 259 decisions, 2021 - 277 decisions, the rst quarter of
2022 - 140 decisions (Fig. 1) (Unied State Register of Court Decisions,
2022).
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Oleg S. Bilanov, Tetiana О. Kharchenko, Halyna V. Lavryk y Viktoriia V. Prokopenko
Mediation as a way to resolve disputes related to the contractual regulation of the use of
reproductive technologies
Figure 1 (developed by the author on the basis of the analysis of the Unied
State Register of Court Decisions, 2022).
2. Results
The study shows that there is a constant dynamic in legal relations
on the use of reproductive technologies and the frequency of appeals to
the administrative procedure for resolving disputes arising in this area.
Most disputes concern the collection of funds for the provision of medical
services under the agreement on the use of reproductive technologies,
recognition of paternity and registration of a newborn child. The growth
of court appeals in 2019-2020 in Ukraine shows an increase in the number
of concluded agreements in the studied area and the need to search for
alternative options for resolving disputes that arise.
Extensive judicial practice has developed in the eld of disputes related
to the use of surrogacy in other countries. The result of consideration
of court cases on the use of reproductive technologies depends on the
national legislation of a particular country. For example, cases challenging
surrogacy treaties in Taiwan are decided by local courts. Moreover, the
initiators of such disputes are often surrogate parents. In one of the court
cases, the husband of the surrogate mother refused to give the child to
biological parents and argued that the surrogacy agreement was invalid.
The court found the agreement valid because both parties actually signed
the agreement in person.
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The court relied solely on general law regarding the conclusion and
termination of the agreement, since, there is no regulation that expressly
prohibitsor permits surrogacy, so the surrogacy agreement in the case was
not invalid under Article 71 of the Taiwan Civil Code. Another illustrative
case was a dispute in which biological parents refused to pay for the services
of a surrogate mother on the grounds that she failed to bear and give birth
to a child.
The court declared the surrogacy contract invalid and critically
considered the surrogate mother’s demands to pay for her services, ruled
that according to Article 72 of the Taiwan Civil Code, a paid surrogacy
contract is invalid, because it represents a kind of commercialized labors
that is contrary to public policy or morality. The court also concluded that
there is no regulation that expressly prohibits the practice of surrogacy that
could lead to the annulment of surrogacy agreements (Chianga and Choub,
2018).
The practice of resolving disputes arising between the parties to
contractual relations in the eld of application of reproductive technologies
demonstrates that the only way is to appeal the parties to the judicial
authorities. Given the workload of the courts, the long term of consideration
of cases, the cost of court fees, the consideration of these disputes is
irrational. In our opinion, in such cases, the parties may use another way to
regulate the resolution of disputes arising from the contractual relationship.
In accordance with Part 7 of Article 49 of the Civil Procedure Code of
Ukraine, the parties may reconcile, including through mediation, at any
stage of the judicial process (Civil Procedure Code of Ukraine, 2004).
According to the Law of Ukraine “On Mediation” as of November 16,
2021, this concept should be understood as “extrajudicial voluntary,
condential, structured procedure, during which the parties, with the help
of a mediator (mediators), try to prevent the emergence or settlement
of a conict (dispute) through negotiations” (Draft Law of Ukraine “On
Mediation”, 2020).
The Law of Ukraine “On Mediation” denes the concept of mediation
itself quite widely and to a certain extent abstractly. Given the domestic
legislative technique, in this case, it is reasonable to draw attention to the
fact that the concept of mediation occurs rather not as in the form of a
classical legislative denition, but is provided only rather as a characteristic
of the procedure itself. However, in this context, it is worth noting that
mediation is not only a procedure that is regulated by current legislation,
but also a whole range of approaches, theories and methods, constitutes a
system of values for conict resolution.
The basic principles, on the basis of which mediation activity is based
and its essence is expressed, are normatively dened in Article 3 of the Draft
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Oleg S. Bilanov, Tetiana О. Kharchenko, Halyna V. Lavryk y Viktoriia V. Prokopenko
Mediation as a way to resolve disputes related to the contractual regulation of the use of
reproductive technologies
Law “On Mediation”. This provision contains an explicit list of guidelines
that are the basis for mediation activities in the national legal reality and are
considered as the starting point for the legal regulation of the institution of
mediation. The legislator denes seven important principles: voluntariness,
condentiality, independence and neutrality of the mediator, impartiality
of the mediator, self-determination, equality of rights of the parties to
mediation (Bortnyk et al., 2021).
Scientists emphasize that mediation helps to save a lot of time and
nd a solution to the conict as quickly as possible, which would have a
positive impact on both sides. During the quarantine conditions that arose
during the pandemic, the institution of mediation, like many other spheres
of public life, moved online. Therefore, individuals are involved in the
mediation process through the use of online communication or articial
intelligence, for example, chatbots (Dontsov et al., 2021).
The problematic nature of the use of mediation in the studied area is
also explained by the attitude of society to the institute of reproductive
technologies itself.
Some scientists note that the use of such methods of reproductive
technologies as, for example, surrogacy is medical tourism. Modern medical
tourism is a rather diverse phenomenon and has dierent types of legal
relations. Currently, many patients with low income go to less developed
countries for infertility treatment, which is high-cost in their country,
however, much cheaper abroad (Samuel, 2012).
Dispute resolution in the eld of medical law, in particular in the eld
of reproductive technologies, as shown by the ndings of research, is
becoming an increasingly frequent practice. This situation can be explained
by a number of reasons: widespread use of reproductive technologies,
imperfection of concluded contracts, non-fulllment of the terms of the
contract by a party, conicts and gaps in current legislation.
In our opinion, the use of mediation is the best option to solve such
dicult situations. Therefore, one of the important arguments of this
proposal is the need to apply all the principles in the studied area, which
are characteristic of mediation, namely: legal equality of participants, free
expression of the will of the parties, impartiality of the mediator, taking into
account the interests of all parties. Moreover, given the certain specics
of such conicts, the use of mediation has its relevance in the complex of
relations that lie on the verge of civil, family and medical law.
Notably, the current legislation in the studied area does not always give
the right for one of the parties to go to court. For example, Article 139 of the
Family Code of Ukraine determines the right of a person to challenge the
fact of motherhood. This provision gives the right to a woman who considers
herself the mother of a child to sue a woman who is registered as the mother
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of the child for recognition of her motherhood. However, if the child was
born using assisted reproductive technologies, the legislator deprives the
right to challenge the fact of motherhood (Family Code of Ukraine, 2002).
In such cases, it seems that everything is legally determined, however,
in practice, situations often occur when biological parents do not return for
their newborn children, and the surrogate mother cannot keep the child for
legal reasons. In our opinion, such an already complicated legal problem
can be solved by applying an alternative method – an agreement.
Along with the formation of mediation in our country, the issue of
the development of international family mediation, aimed, rst of all, at
the possible reduction of tensions in the resolution of disputes arising in
relations with a foreign element in family relations, is becoming increasingly
important.
Statistical indicators increase every year and show that almost half of
the patients seeking the reproductive medicine services in Ukraine are
foreigners. The rst place is occupied by patients from Israel, and they
are also followed by Italians, citizens of the Federal Republic of Germany,
Great Britain and other countries of the European Union. In recent years,
the number of couples from Georgia and Transcaucasia with infertility
problems has increased signicantly (Malska and Bordun, 2018).
Studies by foreign scientists show that in the Massachusetts and
Florida, for example, the treatment of infertility with assisted reproductive
technologies is approximately 30–40% (Thoma et al., 2014).
The use of mediation in the eld of reproductive rights is usually
associated with contractual relations arising in this area. Under the concept
of assisted reproductive technologies (hereinafter – ART), a method of
treating infertility, in which manipulations with reproductive cells, some or
all stages of preparation of reproductive cells, fertilization and development
of embryos before their transfer to the patient’s uterus are carried out
invitro (Ministry of Health of Ukraine, 2008).
The birth of the child from a “test tube” dates back to 1978, which
occurred through invitro fertilization. As a result of the rapid development
of the advanced technologies over the past 30 years, there has been
a rapid evolution among many other types of assisted reproductive
technologies. Along with these technologies, social, cultural, legal and
ethical relations developed.
Therefore, ART is a key symbol of our time, representing the growing
importance of biotechnology in the conguration of individual, family
and collective identities around the world. This fact is conrmed by the
ndings of more than 50 anthropologists who study the inuence of ART
in many areas of public life, including the traditional anthropological areas
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Oleg S. Bilanov, Tetiana О. Kharchenko, Halyna V. Lavryk y Viktoriia V. Prokopenko
Mediation as a way to resolve disputes related to the contractual regulation of the use of
reproductive technologies
of kinship, marriage and family, gender, religion and biomedicine (Inhorn
and Birenbaum-Carmeli, 2008).
Studies conducted by the European Commission for the Eectiveness of
Justice (CEPEJ) show that 47 countries do not have statistics on mediation
processes. Since legal relations in the eld of application of reproductive
technologies arise on the verge of civil and family law, we analyzed the
provision of CEPEJ indicators in the eld of civil and family disputes.
Ukraine showed one of the lowest indicators of the index of a balanced ratio
between mediation and litigation (0.08%) (Zalar, 2019).
Other indicators were demonstrated by the Singapore International
Dispute Resolution Academy (SIDRA). According to the resulting survey
data, the main factors demonstrating superiority over mediation, as an
independent institution, have hybrid mechanisms: the advantages were:
improved eciency (35%), cost (34%) and the performance potential (31%).
The main disadvantage of mediation based on the results of the survey was
determined by the performance potential only to a certain extent, while the
performance potential and nality are two important factors (both 55%) in
terms of user satisfaction with mediation. Figure 1. (Alexander et al., 2021).
Figure 2: Source: authors’ preparation.
Scientists in the eld of medicine conrm international statistics and note
that assisted reproductive technologies, which were originally developed to
treat women with fallopian tube diseases, have been used in an increasing
list of other situations over the past decade, which has led to an exponential
increase in the number of children born through this procedure, which now
account for 2–5% of births in developed countries (Scherrer et al., 2015).
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The World Health Organization estimates that at least 48 million couples
and 186 million people worldwide suer from infertility. Today, the use of
assisted reproductive technologies is becoming a broad way to recover for
couples who have such a diagnosis. However, the implementation of this
process is associated with a number of legal elements of such process. A
review of the scientic literature also made it possible to determine that
couples who experience ART, are likely to face diculties, particularly at
the social, family and nancial levels (René et al., 2022).
In 2019, the Family Mediation Council, operating in England and Wales,
conducted a survey of 122 family mediators, who conducted mediation on
2161 cases within six months. As a result, the following indicators were
obtained: in 70% of cases, the parties reached full or partial agreement,
with 50% reaching full agreement by concluding written agreements, 20%
reached agreement on some issues or on all issues in oral agreement. The
ndings of the survey showed, that the population was not suciently
informed about the possibility of mediation, which is reected in the distrust
of the population in the eectiveness of mediation (Family Mediation
Council, 2020).
The use of mediation demonstrates its eectiveness in many European
countries. For example, in the family law of the Federal Republic of Germany
for more than a decade there have been provisions on the application of
mediation. In the Republic of Poland, mediation has been operating since
2005 in the resolution of civil law disputes. Labor, family, commercial
disputes have been successfully resolved through mediation since 2004 in
Bulgaria.
Instead, in Ukraine, the Draft Law on mediation was registered in 2015.
Some scientists are critical of the provision providing for a mediation
clause. In their opinion, such consolidation is inappropriate, since the
legislator already provides the opportunity to apply to mediation in any
case, and the presence of the clause itself does not prevent from going to
court (Mamnytskyi et al., 2019).
In the European Union, the mediation procedure is understood as the
voluntary expression of the will of the subjects of the dispute who decide
to involve a third, independent party in order to independently resolve
the conict, during which a mediator maintains personal impartiality and
ensures the condentiality of information (Verba-Sidor et al., 2021).
K.R. Rezvorovych supports this conclusion and states that the European
Community recommends the introduction of mediation both at the pre-
trial and trial stage as the main method of alternative dispute resolution,
since the European Union countries adhere to the principle that the right
to access justice includes both judicial and extrajudicial methods of conict
resolution. Judicial practice of European countries demonstrates, that in
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Oleg S. Bilanov, Tetiana О. Kharchenko, Halyna V. Lavryk y Viktoriia V. Prokopenko
Mediation as a way to resolve disputes related to the contractual regulation of the use of
reproductive technologies
80% of cases, disputes that are in court proceedings and submitted for
mediation, are resolved without trial (Rezvorovych, 2019).
A number of scientists believe that the use of mediation in family
dispute resolution is an eective method and has positive consequences.
Moreover, the application of this method makes it possible that all relations
between the parties to the dispute can be restored, which will also provide
an opportunity to strengthen the institution of the family in Ukraine
(Dyachenko and Kolokolna, 2020).
The scientic literature denes dierent models of mediation, depending
on a mediator. Therefore, one can nd judicial mediation as part of legal
proceedings (Canada), legal mediation, such services can be provided by
lawyers (Italy), notarial mediation, when the mediators are a notary, as well
as professional mediation (Podkovenko, 2020).
It is worth noting that alternative ways of conict resolution in the
studied area as a legal tool are not the opposite of dispute resolution in
court; on the contrary, such methods are successful auxiliary processes.
Мediation clause does not deprive a party of going to court in the
end case if a compromise between them is not reached. The ability of
participants in legal relations to independently determine which of the
methods is best for the settlement of controversial issues is not prohibited
by current legislation and is regulated by the contract. Mediation lies in the
private legal plane when the parties are in a contractual relationship with
each other. Its application is not a judicial procedure, the participants are
legally equal, the participants take actions on the principle of dispositivity
without external inuence.
The advantages of using extrajudicial methods also include mainly such
signs as rapidity, lower cost, lack of formalism, a simpler procedure for
resolving this type of conict. In addition, subjective factors are the free
choice of the parties at their own discretion to determine the way to resolve
the conict.
Ensuring condentiality is also one of the important advantages of using
mediation in the legal relations of surrogacy.
Potential parents of the child may have a fundamental interest in
protecting their family, social and psychological ties with the child. The
decision on the need to notify the child of the fact of its origin should be
entrusted solely at the discretion of the spouses. It is up to them to decide
whether to inform their child of the manner of birth through surrogacy
and/or gamete donation.
Another advantage is application of mediation on the objectivity of
resolving a dispute with the participation of a third neutral party with the
appropriate specialization. Appropriate training of mediators is an important
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element in the eectiveness of mediation. The further development of this
important institution for the country depends on how the legal norms are
applied and the agreement is concluded.
In the scientic literature one can also nd the opposite opinion, based
on the belief that the judicial method is the most optimal in legal relations
for the use of reproductive technologies. This position is explained by the
fact that the value of the court decision is more pronounced, despite the
length of the term of consideration. In addition, there is a need to involve
professionals. Importantly, as a result of the trial, judicial practice is formed,
certain judicial conclusions are summarized, which signicantly aects the
further resolution of such cases in the future (Shatkovsky, 2019).
Among the disadvantages related to the use of mediation in the studied
area, it is worth mentioning possible diculties in the implementation of
the mediative decision, that is, there is no coercive mechanism.
In addition, the delay in time by the parties as a negative factor aecting
the eectiveness of mediation can be also considered as disadvantage. One
of the parties may show a tendency to intransigence, as well as a desire to
transfer responsibility for resolving the conict to someone else.
The inaccessibility of mediation for vulnerable and low-income
categories of the population is noteworthy. In Ukraine, the inaccessibility
of services for the organization and conduct of the mediation procedure
is explained in the absence of relevant conict resolution centers. This is
especially true of the use of reproductive technologies, since such legal
relations have a number of specic features.
Apparently, no sucient number of mediators in the studied area
and the mechanism of payment for their service sexist to date. Usually,
a successful mediation procedure ends with the signing of the mediation
agreement. In the event that an unqualied specialist makes it incorrectly,
diculties in its implementation may arise. For example, the parties may
ignore the terms of the contract.
As a result, it can be stated that the progressive development of mediation
in the eld of conict resolution on the use of reproductive technologies can
be achieved only if the principles of awareness, accessibility and support of
this institution are observed by the government and the population.
There is an opinion that, since the mediation procedure cannot be
applied to disputes that aect or may aect the rights and legitimate
interests of the third parties who do not participate in the procedure, its
purpose in resolving family disputes, where the interests of children are
mainly resolved, is not clear (Mazaraki, 2018).
This conclusion is controversial, since a detailed study of the application
of mediation in the use of reproductive technologies suggests that an
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Oleg S. Bilanov, Tetiana О. Kharchenko, Halyna V. Lavryk y Viktoriia V. Prokopenko
Mediation as a way to resolve disputes related to the contractual regulation of the use of
reproductive technologies
eective mediation agreement that meets the interests of the child is able
to maximize the protection of his/her rights and legitimate interests. Due
to the fact that mediation, along with the substantive one, has an emotional
component, the parties to the mediation agreement can focus as much as
possible on individual needs and protect their children.
In our opinion, the resolution of any dispute should take into account
the highest interests of a child. Consequently, the advantages of mediation
in this case are obvious. A legal dispute between the parties during the rst
few weeks or months of a child’s life can adversely aect children in the rst
days of their lives, onerous court procedures can not only legally but also
psychologically aect the early period of a child’s life. At the same time,
if children in adulthood nd out the fact that they were the subject of a
controversial surrogacy agreement, it can have a signicant psychological
impacton them.
Therefore, Article 6 of the Convention on the Rights of the Child
prescribes States Parties to “ensure, to the maximum extent possible, the
survival and development of the child.” The Committee also notes that “the
rst years of the child’s life are the foundation of his or her physical and
mental health, emotional safety, cultural and personal identity, and the
development of his or her abilities.” In particular, the Committee notes that
the well-being and development of children “depend on and build around
close relationships” (United Nations Organization, 1989).
Мethod of determining the application of mediation is essential, since in
national legislation and domestic law there are such concepts as “consent
to the use of mediation”, “mediation agreement (conciliation agreement)”,
“agreement on the results of mediation” and “mediation clause”, “agreement
to mediate” and “agreement on the results of mediation” (Mazaraki, 2019).
In our view, it cannot be unequivocally stated that a mediation agreement
should be concluded exclusively in the form of a separate agreement, it can
also be dened by the parties as part of the main contract.
However, if we are talking about legal relations arising from the use of
reproductive technologies, it is necessary to pay attention to the inherent
specics of these legal relations and the fact that on the basis of it, a
conciliation agreement can be concluded in the future. Thus, this type of
contract is bilateral and consensual. Its provisions determine the subject of
the contract, as well as information on the process and method of resolving
the dispute, information about the mediator, as well as the rights and
obligations of the parties and the timing of its implementation.
If we talk about the place of the mediation agreement in the system of
contracts as a whole, it is worth considering that this agreement is a certain
contractual structure arising from existing legal relations.
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Therefore, in legal relations arising from the use of reproductive
technologies, a mediation agreement will be concluded after the conclusion
of the main contract, and therefore will have the characteristic features of a
derivative agreement.
When choosing between a mediation clause within the surrogacy
agreement and a separate agreement, it is worth noting that the contract
is a separate independent legal structure. The main purpose of such an
agreement is to resolve the dispute outside the judicial system and resolve
the conict if specic conditions occur. In addition, taking into account
the provisions of Article 626 of the Civil Code of Ukraine, the mediation
agreement meets all the criteria of a civil law contract.
Importantly, the mediation agreement cannot be identied with the
previous agreement or mediation agreement. This type of contract is
concluded as a result of a complex legal process.
Conclusions
The mediation agreement is also an independent segment of civil law
and cannot be identied with a conciliation agreement, but only be the
basis for its adoption already in court proceedings.
The development of the practice of pre-trial dispute resolution and
the expansion of the practice of peaceful settlement of the conict are
interrelated. The analysis of the legal regulation of the use of mediation
in other countries shows that Ukrainian legislation is making rst steps in
the application such an institution as mediation, though it has already had
a certain practice in the eld of application of reproductive technologies.
Given that the courts act as the only state body that carries out legal
regulation and protection of the rights and interests of participants in
legal relations in a certain way, mediation can be the leading method to be
applied.
It is obvious that the resolution of controversial issues during the
contractual regulation of the use of reproductive technologies has an
objective need for an eective mechanism to low the level of conicts in the
studied area.
The main task of using mediation in the eld of reproductive technologies
is to reduce the level of conict, increase the eectiveness of protecting the
rights of the parties in contractual relations. We believe that mediation
agreement should have consequences not only of a psychological approach
to conict resolution in this area, but also of an appropriate legal mechanism
for implementation. Thus, the interested party will be able to demand the
fulllment of the terms of the agreement reached as a result of mediation.
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Oleg S. Bilanov, Tetiana О. Kharchenko, Halyna V. Lavryk y Viktoriia V. Prokopenko
Mediation as a way to resolve disputes related to the contractual regulation of the use of
reproductive technologies
Mediation diers from other methods of dispute resolution since it
has special criteria that are characteristic of a civil law agreement. The
mediation procedure is used to reformat legal relations into new ones or
terminate them.
The advantages of using mediation in the eld of reproductive
technologies are the rapidity, lower cost, lack of formalism, a simpler
procedure for resolving this type of conict, application at the participants’
own discretion, ensuring complete condentiality, objectivity of resolving a
dispute with the participation of a third neutral party, taking into account
the highest interests of a child.It has been determined that the disadvantages
include diculties in implementing the mediative decision, delaying time
by the parties, inaccessibility of mediation for vulnerable and low-income
categories of the population, absence of sucient number of mediators
with appropriate training.
Comparing the disadvantages and advantages of using mediation in the
eld of application of reproductive technologies, it can be stated that the
latter signicantly prevail.
In our opinion, it is worth amending Section II “General Provisions on
the Contract” of the Civil Code of Ukraine, as well as the Procedure for the
Use of Reproductive Technologies, dening the concept of a mediation
agreement, indicating that the agreement on the use of mediation in legal
relations arising during the use of reproductive technologies is a voluntary,
bilateral, consensual agreement concluded in writing between the parties
to the agreement on the use of reproductive technologies and is a special
way to resolve a dispute arising from specic material and legal relations
outside the jurisdictional order of the judicial system.
Taking into account the fact that legal relations in the studied area are
usually complicated by a foreign element, it is necessary to establish an
appropriate algorithm, as a result of which special norms of international
and national law would be created, in order to eliminate a number of
conicting problems of a legal nature arising during the recognition of
paternity.
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Esta revista fue editada en formato digital y publicada
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