CYIL vol. 11 (2020)

MONIKA FOREJTOVÁ – PAVLA BURIÁNOVÁ – VLADISLAV VNENK CYIL 11 (2020) from the ordering couple. That is why, the woman from the ordering couple has the only possibility of how to become the child’s mother, which is a voluntary consent to adoption granted by the surrogate mother, because the possibility of determination of the motherhood pursuant to provisions of Section 426, or Section 417 et seq. of the Act no. 292/2013 Coll., on special court proceedings (hereinafter referred to as Special Court Proceedings Act ), will not serve for her benefit due to the mater semper certa est principle. 30 Another issue consists in the possibility of withdrawing the consent granted, in accordance with provisions of Section 817 of the Civil Code. According to these legal provisions it is possible to withdraw the consent to adoption within three months from the time when the consent was granted and after the lapsing of three months from the day when the consent was given provided that the child being adopted has not yet been handed over into the adoptive parent’s care before adoption or if the child being adopted is, according to the court decision issued upon the motion of the parents, released by the person to whose care the child was entrusted, because it is in accordance with the child’s interest that the child should stay with his or her parents. The same applies also to withdrawal of the consent by the child’s father, or by the man who made a declaration of consent before the vital statistics authority, confirming that he is the father of the child. If the consent is granted, the last step will follow, and this step is the process of actual adoption, through the filing of a motion to the court. In order that the future mother can file such a motion, it is necessary for her to be married with the child’s father, 31 otherwise adoption is only possible on an absolutely exceptional basis, and in the case of an unmarried couple the matter concerns very complicated and uncertain steps leading to a possibility of a successful adoption. 32 Pursuant to provisions of Section 833 of the Civil Code, the relationship between the adopted child and his or her original family ceases to exist on the adoption of the child, and so do the rights and obligations implying from such a relationship. Thus, all legal relations of the surrogate mother with the child cease to exist as well. It is, however, appropriate to add that adoption can be cancelled pursuant to provisions of Sections 840 –842 of the Civil Code within 3 years from the decision about adoption, if there are important reasons for such a step, and the adoption can only be cancelled upon the motion filed by the adopter or the adoptee. After the lapsing of three years, adoption becomes non-cancellable and with regard to t he fact that the time period of three years may be rather long in certain cases, it applies, pursuant to provisions of Section 844 of the Civil Code that if it is in accordance with the child’s interests, the court may decide, upon the adopter’s motion, even before the 30 Cf. KRÁLÍČKOVÁ, Zdeňka. Mater semper certa est! On surrogate and limping motherhood . Právní rozhledy 21/2015, C. H. Beck, p. 725.: “ While determining motherhood, it is important to prove with sureness that a woman has delivered, on a certain day, the child who is identical with the child that is subject to the proceedings (positive petit). As far as denial of motherhood is concerned, it is necessary to prove the fact that the woman who is registered in vital statistics as the child’s mother either did not give birth at all at the time in question (negative petit), or that she delivered at that time a child who is different from the one that is subject to the proceedings .” 31 According to the current legislation it is possible, within the framework of the surrogacy, to make an adoption only by a married couple, not by registered partners, i.e. only one of them can adopt, and as far as biological children of one of registered partners are concerned, there is not currently any possibility for the other partner to adopt them. – At a detailed level: HODINOVÁ, A. Adoption of children by registered partners. Proměny ústavy a evropského práva (Development of the Constitution and European Law) . Plzeň: Polypress s.r.o., 2018, p. 155. 32 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.


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