ПОНЯТТЯ ТА ЦИВІЛЬНО-ПРАВОВА ПРИРОДА БІОМАТЕРІАЛУ ЛЮДИНИ

Abstract

The article examines the legal nature of biological material separated from the human body as an object of civil rights. The non-identity of the concepts of “biomaterial” and “anatomical material” is noted, since the first concept absorbs the second. It is substantiated that human biomaterial includes anatomical material extracted from the human body by surgical or other medical intervention with a donor purpose, renewable biomaterial that comes from the human body, other than organs and tissues (biological fluids, secrets, waste products, physiological secretions etc.), which is extracted from the human body without a donor purpose or separated independently, as well as biomaterial created outside the human body from human cells (cryopreserved embryos in vitro, bioprinted organs and tissues). Doctrinal approaches to determining the place of anatomical materials in the system of objects of civil rights are analyzed both among supporters and opponents of the reification of parts of the human body. It is concluded that the human anatomical material as a physical substance that does not have a monetary equivalent and has a useful therapeutic and scientific value is a material nonproperty good. The legal nature of human anatomical materials removed from the patient’s body for medical reasons without a donor purpose is being investigated. It is substantiated that their legal regime depends on the patient’s determination of the further fate of these anatomical materials. In the case of granting permission for their use for transplantation or the manufacture of bioimplants, they acquire the status of a material non-property benefit. If such permission is not granted, then the removed anatomical material is transformed into medical waste, therefore, it acquires the status of a thing. The legal nature of biological materials other than organs and tissues that are separated from the human body without a donor purpose is analyzed, as a result of which it is concluded that such biomaterial is classified as an unrestricted thing in circulation that is carriers of information about a person, his genetic code and state of health. The article also explores biomaterials that have never been part of the human body, since they were artificially created outside the human body, but from human cells.