O caso Valdís Fjölnisdóttir and Others c. Iceland é a mais recente decisão do Tribunal Europeu dos Direitos Humanos (TEDH) relativamente à gestação de substituição e o seu comentário é o pretexto ...para voltarmos a este tema. O caso envolve o reconhecimento do vínculo de filiação na Islândia de uma criança nascida através da gestação de substituição nos Estados-Unidos. Para análise da decisão do TEDH, faremos uma breve visita pelo conceito de direito ao respeito pela vida privada e familiar, estabelecido no art. 8º da Convenção Europeia dos Direitos Humanos (CEDH), e pela jurisprudência do TEDH em relação à gestação de substituição.
Riassunto Il presente lavoro, dopo aver rintracciato storicamente le fonti sovranazionali a tutela del fanciullo, si occupa dell’analisi del concetto di best interest così come risultante dalle ...pronunce più rilevanti della Corte Europea dei diritti dell’uomo in tema di crisi dell’unione coniugale. Ciò ha permesso l’ulteriore riflessione intorno al principio di bigenitorialità e alla sua operatività nelle decisioni delle Corti nazionali.
The interpretation that the ECHR gives to the right to respect for private and family life of the art. 8
of the European Convention, includes different dimensions of this concept would have for the ...Spanish jurist, in the
light of art. 18 of the Spanish Constitution, showing how, despite the decades since its adoption, the Convention is
an adaptable and useful living instrument to the challenges of today’s society.
La interpretación que el TEDH da al “derecho al respeto a la vida privada y familiar” del art. 8 CEDH
comprende dimensiones diferentes de las que, a la luz del art. 18 de la Constitución española, tendría este concepto
para el jurista español, poniendo de manifiesto como, pese a las décadas transcurridas desde su aprobación, el
Convenio es un instrumento vivo, adaptable y útil a las desafíos de la sociedad actual.
L’encadrement juridique du don de corps à la science apparaît relativement lacunaire. Fondé sur le principe de liberté des funérailles, le don de corps à la science est règlementé par l’article R. ...2213-13 du code général des collectivités territoriales. Ce texte exige en amont le consentement du donateur sous une forme olographe, et réglemente en aval les questions de transport des corps et de frais d’inhumation ou de crémation. D’autres questions importantes sont en revanche ignorées par le droit. Tel est le cas en particulier de la délicate question de la remise des cendres aux familles. Notre article se propose d’analyser l’opération de don de corps sous cet angle.
Interference in family life is a particular form of threat to poor families, especially when the only impetus for state action in the form of an interference in the right to privacy is the poor ...material situation of the family. The article reflects on the possible threats to the realisation of family life within the framework of the right to privacy established under public international law, in particular the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European Convention on Human Rights (ECHR). In the view of the Human Rights Committee, the family should be oriented towards enabling the child to remain in the care of his or her parents or to return to their care or to other family members. The Committee on the Rights of the Child points out that the implementation of the right to privacy prohibits the recognition of material poverty as a basis and justification for taking a child out of parental care and into foster care. The European Court of Human Rights case law presented in the article confirms that children from poor families are at risk of being taken away from their parents and placed in foster care due to the financial status of the family, which may constitute a violation of the Article 8 of the ECHR. The fact that state authorities wrongly equate the lack of sufficient resources to support the family with child neglect poses a threat to the family life of poor individuals. Victims of violations of family bonds through harm to the private lives of family members should be protected under the human rights system. The following analysis makes it possible to identify the relevant problems from the point of view of the impoverished person or/and family, such as the questioning of parental capacity as a consequence of the erroneous equation of poverty with child neglect, or the withdrawal of the right to material assistance, all of which affect the realisation of family life, and further enables the identification of legal remedies for protection.
Nowadays, the right to abortion has inevitably become not only a legal, but also a political and religious issue, which has been the subject of numerous discussions for years, both in terms of its ...moral character and legal treatment. Unfortunately, the fact is that no consensus has yet been reached on the right to abortion, which is also emphasized by the advocates of the "pro-life" and "pro-choice" movements. Analyzing international documents as well as court practice, the author expresses her concern about the current situation in certain countries, which, due to the restrictive interpretation of the right to abortion, leave women without adequate and complete legal protection.
The article presents an account of the use of human rights litigation in the employment context through the lens of the Turkish Constitutional Court's (TCC) case law, focusing on the two core human ...rights of freedom of expression and the right to respect for private and family life under the individual application remedy. The main argument of the article is that the elevation of employees’ free speech and privacy concerns in employment relations, from an understanding and examination based on the employment contract to a constitutional level of review due to the availability of the individual application procedure, allows employees to confront employer-imposed restrictions that may infringe their constitutionally protected human rights. Direct access to the TCC potentially provides greater safeguards for employees' enjoyment of core human rights at work and beyond. At the same time, it is crucial not to magnify the role of individual applications in providing constitutional human rights protection to employees mainly because of procedural requirements.
This paper reviews the issue of surrogacy. The author analyzes surrogacy and continues by conducting a comparative overview of two legal systems with different approaches to surrogacy. The analysis ...first looks at the legal system of Russia, as it represents a country that allows all forms of surrogacy, and then that of Germany, as a country with norms prohibiting all forms of surrogacy. In turn, the author reviews Serbian legal provisions, which also forbid all forms of surrogacy. The paper further explores whether there is justification for such legal provisions, i.e., it pinpoints potential problems that could arise if the legal provisions were to be changed. It is concluded that the Serbian legislator has decided to remain silent on this issue, most probably due to the fact that any amendments could raise questions that, at least for the time being, have no clear answers.
The purpose of this paper is to analyse how the term “mother” is defined in the English legal system. This question has recently been raised in English courts due to the McConnel case; where a woman, ...who had undergone a gender transition and acquired full legal recognition as a male, gave birth to a child and asked to be registered as the father of his child. In the first part of the paper, I will study the legal frame and the main decisions of the English courts. In the second part, I will analyse the decisions of the European Court of Human Rights and the consequences of the McConnel case in English family law. And finally, I will explain the role that the principle of the best interests of the child plays in this context.
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