CYIL vol. 11 (2020)

MONIKA FOREJTOVÁ – PAVLA BURIÁNOVÁ – VLADISLAV VNENK CYIL 11 (2020) to issue a certificate of the child’s nationality. The proceedings were, however, interrupted and the applicants were invited to initiate proceedings before the Supreme Court for recognition of the decision issued by the Californian court. The Supreme Court of the Czech Republic decided at first in such a way that it recognised the first applicant as the child’s father and the mother field remained empty, therefore the applicants recurrently filed a motion for recognition of the judgement of the Californian court in relation to the other applicant. The Supreme Court of the Czech Republic then rejected the second motion because such a decision was in contradiction, in the Court’s view, with public order, because by satisfying the motion the Court would factually establish a situation corresponding to a common adoption of a child by two persons of the same sex, which is a condition not accepted by Czech law, because it categorically excludes, at present, adoption of a minor child by persons who are not spouses. In its expressed finding, the Constitutional Court frequently referred to case law of the ECtHR regarding the notion “family life”, while considering especially the fact that also the other applicant can be the biological father of the child, and also the fact that both the spouses have been living with the child since the child’s birth, and there is family life between them in fact. “ According to the Constitutional Court, it is not possible to compare the parenting of a child acquired through surrogacy to adoption of the child. … Pursuant to Section 794 of the Civil Code, the term “adoption” denotes admission of a foreign person as one’s own. In case of surrogacy, however, the ordering persons become the child’s parents already on the child’s birth. This means that there is not created any new relation to a foreign person. This applies still more in the case when the parent – ordering person – is at the same time a biological parent. On the other hand, parenting of a child with the use of surrogacy cannot be compared to natural parenthood either. This is obviously not such a case because in many cases even at heterosexual couples the purpose of surrogacy is to help to parenthood to couples that cannot become parents in a natural way. … Parenthood with the use of a surrogate mother therefore must be perceived as an institute different from adoption, but also as an institute different from natural parenthood. In this regard it is therefore possible to speak about a third way of how to become a parent. ” The Constitutional Court concluded that: “ The failure to recognise a foreign decision, whereby parenting of a child was determined for two persons of the same sex in a situation when family life has already been between them constituted, factually as well as legally, by way of surrogacy, for the reason that Czech law does not enable parenthood of two persons of the same sex, is in contradiction with the best interest of the child protected by Article 3(1) of the Convention on the Rights of the Child. In the case that family life arising on a legal basis already exists between the persons, it is an obligation of all public power authorities to act in such a way that this relationship can develop, and it is necessary to respect legal guarantees protecting the relations of the child and the child’s parents. ” Nevertheless, the Constitutional Court furthermore emphasised that the matter does not concern any area-wide enabling of parenthood of two persons of the same sex through the institute of adoption, but indicated that in exceptional cases it is possible, in the best interest of the child, to recognise the decision of a foreign country, although in the Czech Republic this situation would not be admissible.

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