Legal Parents Research Articles

PERSONAL NON-PROPERTY RELATIONSHIPS OF THE STEP-FATHER AND STEPSON: IN SEARCH OF LEGAL ENTITIES

The problem of personal non-property relations that arise in a consolidated or remarried family with the participation of a stepfather/stepmother and a stepson/stepdaughter is rarely studied in the legal literature. Schematic approaches have been adopted in Russian familistics, suggesting the legal imposition of legal rights and obligations on the stepfather, by analogy with legal parents. In the Kazakh science of family law, this problem is not even touched upon. Turning to it, the authors of the article seek to substantiate the appropriate theoretical and methodological approaches to its study. Turning to it, the authors of the article seek to substantiate the appropriate theoretical and methodological approaches to its study. The original author's idea is based on the fact that personal non-property rights and obligations in family law do not arise either from parents or other family members "on their own". The grounds for this are named only by the law, establishing for this purpose the rules for recognition by parents. The current legislation of Russia and Kazakhstan does not provide for other grounds, except for the recognition of persons as parents by law, for establishing legal rights and obligations in relation to a child. Scientific attempts to legally impose legal rights and obligations on the stepfather are not consistent with this legislative maxim and contradict it. This author's judgment serves as a methodological guideline for future research on personal non-property relations between a stepfather and stepson, prejudging the involvement of other legal tools in its scientific description, which is based on dispositive regulation. Such are conciliatory and voluntary acts with the participation of the stepfather and the legal parents of the child, whose personal non-property rights and obligations in relation to the child do not cease after the breakup of their marriage. This approach does not eliminate the relationship between the stepfather and stepson of the non-resident parent from the study and does not raise the problem of the competition of the rights of these persons in relations with the child.

Surrogacy and the law in the UK.

Surrogacy is a method of assisted reproduction in which a woman bears a child on behalf of a couple or individual with the intention of handing over care of the child to the intending parent(s) at or soon after birth. The law surrounding surrogacy is complex for healthcare professionals, surrogates and intending parent(s) to navigate. This review article summarises the laws and potential legal complications of surrogacy in the UK. While altruistic surrogacy is permitted, commercial surrogacy is outlawed in this country. Both traditional and gestational surrogacy may be performed and UK law now also permits surrogacy for same sex couples, unmarried couples and single individuals as intending parent(s). Legal parenthood of the child is transferred from the surrogate to the intending parent(s) via application for a parental order between 6 weeks and 6 months after birth. Legal complications include time restrictions for parental order applications and breaches of reasonable payments to surrogates.

Surrogacy and the law in the UK

Surrogacy is a method of assisted reproduction in which a woman bears a child on behalf of a couple or individual with the intention of handing over care of the...

THE ACQUISITION OF SHARED PARENTAL RESPONSIBILITY BY SAME-SEX CIVIL UNION PARTNERS

The acquisition of parental responsibility in South Africa is currently still determined by the legitimate status of a child (Van Heerden “How the Parental Power is Acquired and Lost” in Van Heerden, Cockrell and Keightley (eds) Boberg’s Law of Persons and the Family (1999) 317 and authority quoted in fn 17). The birth of a legitimate child will vest equal and independent parental responsibility in both parents of the child (s 1(2) of the Guardianship Act 192 of 1993). Legitimate status and the resultant acquisition of parental responsibility can also be achieved through the legitimation of the child per matrimonium subsequens, adoption and artificialfertilisation with the consent of both spouses (Davel and Jordaan Law of Persons (2005) 108-109). In the case of a same-sex civil union it is obvious that the acquisition of shared parental responsibility by both civil union partners through the birth of a legitimate child or the legitimation of a child born out of wedlock, is out of the question. This comment will investigate the possibility of same-sex civil union partners acquiring shared parental responsibility in respect of a child or children born through adoption and artificial fertilisation. Since the children cannot be described as being legitimate or “born from the marriage” between the same-sex civil unionpartners, they will be referred to as children “planned” by the partners themselves. In this way the civil union partners are seen as the intentional parents of the children, that is, the persons who intend to become the legal parents of the child(ren) at birth. The acquisition of parental responsibility by one civil union partner in respect of children born from a previous (heterosexual) marriage or relationship of the other same-sex civil union partner will also briefly be canvassed.

Recognition of LGBTQI+ parent families across European borders

The legal recognition of LGBTQI+ parent families differs considerably across Europe and is a matter that is largely outside of the remit of EU law. This creates difficulties for LGBTQI+ parent families who cross European borders as legal parent-child relationships established in one Member State may not be recognized in another, resulting in limping legal parentage. In the case of V.M.A. v. Stolichna obshtina, the CJEU found that where one EU Member State recognizes the legal parentage of same-sex parents, all other EU Member States must also recognize those parent-child relationships for the purpose of free movement. This article examines the significance and limitations of the decision.

Protection of Children’s Rights and Interests in Transnational Surrogacy -- From the Perspective of Parent-Child Relationship

The development of artificial reproductive technology and the legal difference of surrogacy lead to a large number of transnational surrogacy children and many disputes about the legal parent status of transnational surrogacy children. The main reasons for the difficulty in identifying the parental relationship of the present transnational surrogacy children are the different identification of the surrogacy agreement and the parent-child relationship in different countries, the emergence of the "lame parental right" caused by the application of the principle of public order, and the reflect to recognize the transnational surrogacy parent-child relationship on the grounds of legal evasion.Based on the analysis of the reasons for the difficulty in identifying the parent-child relationship and the experience of determining the surrogate parent-child relationship in various countries, the exploration of the path to determine the parent-child relationship of the transnational surrogacy children mainly includes establishing the parent-child relationship according to the surrogacy agreement, establishing the adoption relationship to establish the parent-child relationship, and redefining the parent-child relationship according to the conflict norms of the country where the intended parents are located.At present, there is no basic law to regulate surrogacy in China. In practice, the legal parents of surrogacy children are established in the way of confirming the parentage of factual support. On the premise of balancing the best interests of children and social public order, we should protect the right of identity of transnational surrogacy children by perfecting laws and regulations, and maximize the function of technology to benefit mankind.

Division of Care and Leave Arrangements in Gay Father Families in Sweden

IntroductionThis study analyses the division of parental leave and the income development in gay father families through surrogacy in Sweden, seen as one of the most family-friendly and egalitarian countries in the world.MethodsBased on longitudinal population register data, descriptive and bivariate regression models are estimated to analyse the parental leave uptake and income development of married partners becoming (first-time) parents in 2006–2015 (in total 53 couples). Retrospective in-depth interviews with 23 gay men in 12 couples, conducted in 2010 and 2018 are analysed thematically to study how fathers discussed and decided how to divide the leave.ResultsThe process of establishing legal parenthood delays the fathers’ access to reimbursed parental leave. Despite this, the fathers’ earnings were not considerably affected by the addition of a child to the family. Once the fathers had access to reimbursed leave, they generally shared this equally, with a tendency for the genetic father to take leave first and for a slightly longer period.ConclusionsThe fathers becoming parents via surrogacy arrangements are a well-off group, able to counter the negative financial consequences of becoming parents. Swedish family policies enable parents to share the leave equally. Less impacted by gender and parenthood norms creating difference between parents, gay father families are in a better position to realise ideals of shared care and sameness.Policy ImplicationsThe delayed access to reimbursed parental leave structures the ability of gay couples to become parents and contributes to class inequalities in the transition to parenthood.

The Identification of Legal Parentage in International Surrogacy

The Identification of Legal Parentage in International Surrogacy

Law as Anti-Kinship: The Colonial Present in Global Surrogacy

Law and regulation are often seen as the panacea for the ills of science and markets: regulation minimizes risks by setting out clear rules, calls out abuses when those rules are not obeyed, and disciplines actors, institutions, and states to behave according to collectively agreed upon principles. In this article I challenge this liberal narrative of regulation by looking at how cross-border surrogacy arrangements are currently debated in private international law. I first demonstrate that technosciences are intimately linked to regulatory and legal frameworks. Here, recombinant knowledge has led to new formations of legal parenthood while obscuring other forms of kinship in quite paradoxical ways. Second, the liberal story of law and regulation erodes the history and political economy in which law has come to represent itself as universal and moveable. I examine how a gendered, racialized, and (post)colonial context of global fertility chains is lost in the legal instruments designed to protect the people involved in international surrogacy arrangements, preferring instead neoliberal forms of kinship. Finally, the liberal story of law also embraces the story of individualism. I show the conflicts that arise when such individualist forms of law are transplanted to non-individualist contexts, both in non-Western and Western contexts. I argue that by subjecting non-liberal others (across the Global North-South divide) to bioethical frameworks that intervene in kinship ontologies, private international law runs the risk of prolonging the logic of colonial and imperial thinking.

Maternal–Fetal Microchimerism and Genetic Origins: Some Socio-legal Implications

What are the implications of microchimerism in sociocultural and ethico-legal contexts, particularly as they relate to the destabilization of genetic origins? Conventional biomedicine and related law have been reluctant to acknowledge microchimerism—the existence of unassimilated traces of genetic material that result in some cells in the body coding differently from the dominant DNA—despite it becoming increasingly evident that microchimerism is ubiquitous in the human population. One exception is maternal–fetal microchimerism which has long been recognized, albeit with little consideration of the nonmedical implications. Most immediate issues concern the ongoing biomedical debate around whether microchimerism is beneficial in terms of enhancing the body’s range of immunological responses, harmful in provoking autoimmune diseases, or simply neutral with respect to subsequent health. That controversy remains unresolved, but whichever way it develops, I want to extend consideration by insisting that changing biological concerns cannot be separated from sociocultural and ethico-legal effects. Once the diversity of DNA coding in a singular body has been established, relations of kinship, the identification of legal parenthood, and the operation of surrogacy laws are of direct interest. The overriding problematic asks whether our ethical and legal apparatus is able to address such newly emerging questions.

SURROGACY LAWS IN INDIA: THE SURROGACY (REGULATION) ACT 2021 & THE ASSISTED EPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021 – AN ANALYSIS

'Mother' is a word that every married woman wants to hear. But due to physical disability in the couple, some are not able to get this happiness. Due to which, along with mental stress, under social pressure, the married woman starts seeing this disability as an emotional and social stigma. In surrogacy, an agreement is made between a woman and a couple seeking a child. Under this, the legal parents of the child born out of this pregnancy are only those couples who have done surrogacy. The surrogate mother is given money to take care of herself during pregnancy and for medical needs so that she can take care of herself during pregnancy. There was no law regulating Surrogacy and Assisted Reproductive Technology and it was regulated through guidelines. Through this research paper, you will get the answer of all the questions related to laws in India relating to surrogacy.

Transgenerational concordance in parent-to-child transmission of suicidal behaviour: a retrospective, nationwide, register-based cohort study of 4 419 642 individuals in Denmark

Suicidal behaviour runs in families, but the nature of transgenerational concordance needs elucidation. The aim of this study was to examine parent-to-child transmission by investigating whether presence and nature of parental suicidal behaviour was associated with suicidal behaviour in children. We did a retrospective, nationwide, register-based cohort study in Demark using register data. We included all individuals born after 1953 who were 10 years or older and who were recorded as living in Denmark at some point between Jan 1, 1980, and Dec 31, 2016. Adults listed as living with their child at first registration in the Civil Registration System were considered as parents; later records of different legal parents allowed identification of potential step-parents. Self-reported ethnicity data were not available. Exposure to parental suicide attempt and suicide was identified using information from hospital contacts and causes of death from national registers. The examined outcomes were suicide attempt and death by suicide. We calculated incidence rate ratios (IRRs) and cumulative hazards for children's suicide attempt and suicide, taking into account type of parental suicidal behaviour, child's age of exposure, and sex. In total, 4 419 642 individuals aged 10-63 years were observed during 1980-2016. Of these individuals, 150 222 (3·4%) were exposed to one or more parents with a suicide attempt, 31 564 (0·7%) to at least one parent who died by suicide, and 12 834 (0·3%) to both events. Individuals exposed to parental suicide attempt had higher rates of suicide attempt (IRR 2·72 [95% CI 2·33-3·17]) than individuals exposed to parental suicide (1·77 [1·50-2·09]) when compared with unexposed individuals. Higher rates of suicide were found for individuals exposed to parental suicide (IRR 3·18 [95% CI 2·84-3·58]) than for those exposed to parental suicide attempt (2·37 [2·19-2·57]). The cumulative hazard of suicide attempt was 0·07 for individuals exposed to parental suicide attempt, and the cumulative hazard of suicide was 0·009 for individuals exposed to parental suicide. Individuals exposed to parental suicide had higher odds of violent suicidal methods than those exposed to suicide attempt alone (odds ratio 2·0 [95% CI 1·7-2·3]). A concordant pattern of higher rates of the same type of suicidal behaviour as the one of the parents was observed, including type of suicide method. Preventive, family-oriented interventions are warranted to mitigate familial transmission of risk, as are clinical considerations of familial exposure in risk assessment of patients. Mental Health Services, Capital Region of Denmark.

What makes a Parent? Challenging the Importance of a Genetic Link for Legal Parenthood in International Surrogacy Arrangements

Abstract This article advocates for consistent application of the best interests of children in recognition of legal parenthood of children born out of international surrogacy arrangements (ISAs) and opposes its differential application to surrogate children who do not have a genetic link to their intending parents (IPs). Owing to the lack of European consensus and specialized legal instruments regulating recognition of legal parenthood in ISAs, the European Court of Human Rights (ECtHR/the Court) via interpretation of Article 8 obligates prohibitionist home states of IPs to recognize legal parenthood coming out of such international arrangements only in instances where there is genetic link with one or both IPs. This leaves surrogate children with no genetic link to their IPs with no benefits stemming out of recognition of legal parentage often leaving them parentless and stateless. This work challenges the necessity for such limitations through analysis of two ECtHR cases, the Mennesson v. France and the Paradiso and Campanelli v. Italy, where differential consideration of the best interests of children was based on presence or lack of genetic link respectively. It concludes that non-recognition of parenthood is a disproportionate measure to protect legitimate aims of prohibitionist home states and advocates for expansion of their implied positive obligations to protect the best interests of surrogate children with no genetic link to their IPs.

UK surrogates’ characteristics, experiences, and views on surrogacy law reform

Abstract What are surrogates’ views on their experience with surrogacy, their understanding of the law, and views on legal reform? We conducted an online retrospective survey of women who underwent treatment as gestational surrogates in two UK-regulated IVF centres between March 2014 and October 2021. Forty-seven surrogates responded outlining their experiences with surrogacy in the England/Wales legal context, their understandings of the law, and thoughts on potential law reform. The surrogates ranged in age, occupation, and household income. Most surrogates were white, British women. While almost half were family members or friends of the intended parents, the largest category met the intended parents through a non-profit surrogacy organization. Two-thirds of the respondents had given birth to a baby as a surrogate. Surrogates generally do not view themselves as the mother of the child that they carry and support proposals for reforms that would recognize the intended parents as legal parents from birth. More ambivalence is apparent in relation to expenses and payments, though advertising is generally supported. Draft new legislation is expected to be introduced in the UK in 2023, and the results of this study could inform public and parliamentary debates to come in the UK and elsewhere. Moreover, the results from this survey can assist the development of good practice models for care on the surrogate pathway.

Recognising Legal Parenthood in Chinese Same-sex Families: Obstacles, Conflicts, and Possible Resolutions

Abstract Thousands of children are born to and raised by same-sex parents in China every year. However, Chinese law has not yet recognised the legitimacy of this new form of parent–child relationship. This article provides a comprehensive analysis of the legal obstacles and conflicts that same-sex parents are facing under Chinese law. The conclusion is that the missing connection of marital relationship, the impossibility of procreation in the natural way and the strong stance on public interests have created formidable barriers for same-sex parents to claim parenthood in China. The legal disconnect between intended parents and children is argued to be detrimental to children’s welfare and psychological health. In the end, solutions to alleviate the incongruence between social needs and the legal position are proposed for Chinese law to adopt.

The French Law on Bioethics and its Limitations: Challenges for the Future from a Comparative Perspective

Abstract On 4 August 2021 LOI n° 2021-1017 du 2 août 2021 relative à la bioéthique, a French law on bioethics, came into force. Among the most noteworthy legislative developments are: access to reproductive treatments for all women regardless of sexual orientation; the incorporation of a new way of determining legal parenthood with respect to pregnant women’s female partners via acknowledgment, and the abolition of donor anonymity. With this reform, the French legal system has aligned itself with many others in Europe with respect to reproductive rights and the right of children conceived by these means to know their biological origins. However, there are also a number of controversial issues that French lawmakers decided not to address, and this article aims to comment on these. Some of the reflections here are comparative and refer especially to (i) the possibility of post-mortem fertilization; (ii) access to certain techniques such as the ROPA method, and finally (iii) transgender persons’ potential access to reproductive techniques. The conclusions are that all these aspects should have been included in the legislative reform.

Surrogacy and Parenthood: A European Saga of Genetic Essentialism and Gender Discrimination

This paper tells a story of shifting normativities, from tradition to modernity and back, regarding the recognition of legal parenthood in non-traditional families created through crossborder surrogacy. The cross-border nature of the surrogacy is often forced as most domestic legal frameworks in Europe still restrict the creation of non-traditional families through assisted reproductive technologies. Once back home, these families struggle to have birth certificates recognized and establish legal parenthood. The disjuncture between social reality and domestic law creates a situation of legal limbo. In its recent case law, the European Court of Human Rights has pushed for domestic authorities to rectify this situation but, at the same time, has filled the legal limbo with genetic essentialism and allowed for gender discrimination when recognizing legal parenthood. While giving full effect to a genetic father’s foreign birth certificate based on identity and best interests arguments, the Court accepts that a genetic mother must adopt to establish a legal parent-child relationship. The paper critically addresses this intriguing imbalance. It deconstructs the Court’s genetic essentialism encouraging a biologically determined view of parenting, which sidelines the social (i.e., non-genetically related) parent and contradicts the purpose of assisted reproduction to overcome biological barriers. The paper concludes by rejecting the gender-discriminatory element of power and control over legal motherhood imposed by the procedural step of adoption.

The Boundaries of Multi-Parentage

Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in assisted reproductive technology have made it possible for a greater number of parties to play a role in a child’s conception. At the same time, the law has expanded both the categories of individuals who are eligible to establish parentage and the mechanisms through which parentage can be established. While the trend in favor of multi-parentage recognition is clear, the boundaries of multi-parentage remain largely unsettled. It is imperative that in drafting their multi-parentage laws, states carefully consider how to address a number of important questions. These questions include, for example, whether each of the child’s existing legal parents must consent to the establishment of multi-parentage, what (if any) cap should be set on the number of individuals who can establish legal parentage, and how to avoid imposing a hetero- and bionormative family structure on LGBTQ+ families. After providing a detailed analysis of the complex issues involved in each of these questions, the Article sets forth a number of proposals regarding how states should address these critical questions within their multi-parentage laws.

The Rights of the Child at Risk

Mainly thanks to the United Nations Convention on the Rights of the Child, its philosophy, ideas and principles, the Czech legal order was changed in early ´90 and later on, in connection with the Civil Code in 2012. The child is no longer conceived as a passive object of his or her parents´ activities, their parental responsibility, but as an active subject with legally guaranteed rights. However, not only ‘law in books’ is relevant. There is still ‘bad practice’ connected with anonymous or hidden child delivery, abandoning new born children in ‘baby-boxes’ and older children in institutional care, although the state has attempted remedies. Besides, the number of divorces has increased in the Czech Republic over the last couple of decades, while in the last few years there are more marriages, and the divorce rate is no longer so alarming. However, the statistics reveal that minor children have not been an ‘obstacle’ to a ‘radical termination’ of the matrimonial bond.
 The article aims at finding an answer to the question whether abandoning an unregistered child or applying for hidden identity by his or her mother makes the ‘way’ of the child to a substitute family by adoption easier. Further, an attention is paid to surrogate motherhood. These topics are linked to the right of the child to know his or her origin. As the harmony between biological, social and legal parentage and the model of ‘continuing’ parenting are values, the well-balanced rights and duties of both the child parents and the best interest of the child are stressed. The final words are focused on alternative measures and interdisciplinary collaboration, besides public law instruments.

Blood is Thicker Than Water, but is It Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-conceived child. However, if a sperm donor or his family members bring an application in terms of section 23 or 24, they cannot rely on their genetic link with the donor-conceived child. Secondly, sperm donor agreements are in principle legal and enforceable, but the court is not bound to enforce provisions dealing with parental responsibilities and rights if it is of the opinion that such provisions are not in the best interests of the child. A sperm donor agreement may, however, be informative regarding the parties’ intentions. Criticism is expressed about the way in which the court dealt with the issues of the locus standi of donors and the psychological evaluation of donors and recepients where known donors are used.