Abstract

For the first time in the Ukrainian law history, the personal non-property rights in the sphere of healthcare services have taken their rightful place in the doctrine as well as in the normative body of the Civil Code of Ukraine. This calls for a research on the characteristics of the legal and personal regulation of these rights on the basis of law analogies and prospects of contractual regulation of the personal relations of the medical sphere.
It is the current practical issue to legally regulate the relations not covered by law. They can be referred to as “gaps” in legal regulation, and it is due to the mechanism of drawing law analogies that these relations are legally regulated. The law analogies apply not only to norms and principles of civil law, but also to the doctrine of private law.
For example, in civil law of Ukraine there is no right for a doctor to refuse medical intervention for the reasons of conscience. Yet, the right of the doctor to refuse to perform a lawful abortion for the reasons of conscience is present in the doctrine of European private law and civil law of Ukraine. This right of a doctor is based on the following human rights: the right to freedom of conscience and religious beliefs, the right to preserve the identity, the right to security of a person, the right to dignity.
The issue of contractual regulation of personal relations in the medical field is also relevant. In the Civil Code of Ukraine special regulations on such agreements are absent. However, Article 6 grants the participants of civil-law relations the right to independently regulate their relations, not specifically mentioned in the legislation, in the agreement. This right is limited only by prohibition to deviate from mandatory provisions of the legislation. That is why, nowadays the agreements on representation of the patient in legal relationship as for the choice of medical treatment are considered to be legitimate in Ukraine. A peculiarity of the method of legal regulation of civil relations is an additional argument for legality of such agreements. In the field of private law, legal equality and free will of legal agents are considered to be the foundation of such regulation.
Given the stated above, the relevant areas for further research should be identified as the following: the issue of applying law analogies to the rights of individuals in the sphere of healthcare services; legal possibilities and prospects of contractual regulation of the personal relations of the medical sphere. Delivering on this aspiration will foster the fuller exercise of the personal rights of individuals and, eventually, make social relations more humane.

Анотація

У статті досліджуються окремі методологічні питання приватноправового регулювання особистих немайнових відносин медичної сфери, зокрема: вплив природного права та концепції прав людини на приватноправове регулювання особистих немайнових відносин медичної сфери; застосування аналогії права у правовому регулюванні відносин медичної сфери.