CYIL vol. 11 (2020)

CYIL 11 (2020) SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS well as socially extremely complex issues of human and social arrangements, and should be understood, at least let us hope for the time being, as a rather backup solution. No exact legislation has been determined in this area yet, but already now it is possible to conclude that it is just a question of time. In the traditional perception of motherhood, which still persists, the Roman-law principle “ mater semper certa est ” applies, i.e. that the children’s mother is the women who gave birth to the child, and motherhood of this woman cannot be called into question, 5 because the matter concerns a cogent norm which cannot be contractually regulated in any manner. Moreover, the concepts of motherhood perceived this way are fully in conformity with Article 2 of the Convention on the Legal Status of Children Born out of Wedlock 6 and then this presumption is foreseen also by the Convention on the Rights of the Child. 7 “ Motherhood is therefore always founded by the fact of the delivery, without any exception, without any declaration of the will on the mother’s part being necessary for this purpose .” 8 It is not possible to disregard traditional family concepts either, which find their support in Art. 16(3) of the Universal Declaration of Human Rights , when the core part of a family is marriage between a man and a woman. With regard to the fact that at present we see important social developments because we find ourselves at the time of formulating new social rules, even this outlived view of families understood especially as a marriage between a man and a woman has changed as well. The notion of a traditional family which is emphasised mainly in confrontation with new family models thus retreats rather to the area of political duels focused on the topic of traditional values of society which need to be protected (against external influences). Nevertheless, from a long-term point of view, this rather protectionist model seems to be hardly sustainable. In any case, one must not forget that the central point of the existing legislation in family issues is still the so-called “best interest of children” on which really fundamental emphasis is placed. At the same time, this criterion of the best interest of the child is the main parameter for assessment of relations in families, in particular if the case is dealt with by national courts, as so-called custodial cases. 9 In this context one cannot help mentioning the very good definition by M. Trávníček, 10 who characterises the best interest of the child as “ a requirement for environment in which the child is to grow, and which would be based on the atmosphere of understanding, love, tolerance, happiness, harmony, stable environment leading to positive development of the child in all directions”. 5 HRUŠÁKOVA, Milana. KRÁLÍČKOVÁ, Zdeňka. WESTPHALOVÁ, Lenka. et al. Civil Code II. Family law (Sections 655-975). 1 st edition. Prague: C. H. Beck, 2014. p. 506-519. available from: . 6 Explanatory Memorandum to the Act no. 89/2012 Coll., New Civil Code, Section 775, available in ASPI. ASPI ID: LIT 38253CZ. 7 ŠÍNOVÁ, Renáta. ŠMÍD, Ondřej. JURÁŠ, Marek et al. Current issues of family-law regulation: Parenthood, upbringing and maintenance of minors . Prague: Leges, 2013, p. 112. 8 FRINTOVÁ, Dita. Section 775 Motherhood. In: ŠVESTKA, Jiří. DVOŘÁK, Jan. FIALA, Josef. ZUKLÍNOVÁ, Michaela and others. Civil Code: Comments, Volume II, (Sections 655-975, Available in the ASPI System. ASPI_ ID KO89_b2012CZ. Wolters Kluwer. ISSN: 2336-517X. 9 cf. General comments of the United Nations Human Rights Committee no. 14 of 29 May 2013 on the rights of a child. Available on: k-nejlepsimu-zajmu-ditete-107820/. 10 See TRÁVNÍČEK, Milan. Shared custody. 1 st edition. Prague: C. H. Beck, 2015, p. 7.


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