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Lecture 4 kort
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Lecture 4 – ParentageThe law on parentage determines who are the parents of the child for legal purposes (e.g.
maintenance, inheritance, nationality, adoption, name): the legal parents. The interests at
stake in the law on parentage are shifting. Traditionally, the main question was whether a
child was legitimate or natural. That question was relevant, since the status of natural
children was inferior in comparison with the status of legitimate children. Nowadays, in most
European countries discrimination of children on the basis of the parents’ marital status (or
discrimination on the basis of birth, as it is also called) has almost completely disappeared.
However, the law on parentage faces a new challenge: the bio-medical revolution. Who
should be the parent of the child who is born as a result of donor insemination, embryo
transfer and surrogacy?
In this lecture we will focus firstly on the legal relationship between parents and children -
parenthood - from an international perspective. Furthermore, we will deal with the question,
which law is applicable on the establishment of a family relationship and the recognition of
decisions on parentage made in other States. Are there relevant international treaties? Has
the EU already undertaken legislative action?
Literature
● J. M. Scherpe, European Family Law Volume III, Chapters
6 and 7
See chapter 7 in tutorial 4.
Given the central role of the welfare of the child as a legal concept across
Europe, the question of whether this approach is compliant with the
requirements of human rights instruments are of the highest importance. If
there were an inherent incompatibility between this core legal approach
and the right to respect for private and family life, there would be an
urgent need to re-think domestic child laws across the Council of Europe
member states.
However, the suggestion from this chapter is that such a reassessment
is not in fact required. While there are still clearly issues to clarify – such as whether
explicit discussion of individual factors within the decision-
making process is required or whether, conversely, an overall assessment
is adequate – the ECtHR’s approach now seems to suggest that a best
interests analysis that prioritizes a child’s welfare within a full assessment
of the overall family situation will be compliant with article 8. The bigger
challenge for states across Europe, to judge by those cases that succeed
in the ECtHR, may be in ensuring that the procedural requirements of
article 8 are complied with, and that the court is in a position in fact to
undertake this wide-ranging assessment of the individual family’s situation.
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