Wyniki wyszukiwania - Biblioteka Nauki

1

O żądaniach wpisu w polskim rejestrze stanu cywilnego zagranicznej fikcji prawnej pochodzenia dziecka od „rodziców jednopłciowych”

100%

Mostowik P.

Forum Prawnicze

|

2019

|

nr 6 (56)

3–29

EN

Polish administrative courts were in 2018 requested to register in Polish birth records the child’s origin from “same-sex parents” (de facto – homosexual couples). The author discusses the national legal provisions. In the matters of civil status in question there is no harmonization of law at the international level, and the European Union has no competence in the field of substantive personal and family law. Such issues and – being their reflexes – the registration of civil status (filiation or marriage) are subject to the internal legislation of each state. Legal systems differ manifestly in the world. The author emphasizes that there is no possibility of transferring to the domestic register of civil status (birth records) a foreign document incompatible with the fundamental principles of forum’s law, which is justified in particular by the need to protect the effectiveness of the principles of the Polish ordre public, which are declared in the Constitution (Art. 18). They include i.a. the understanding of the principle of filiation or marital status, and the registration system should be compatible with the legal fundaments of the state. The proposed solution does not mean, however, that it is not possible to settle a detailed administrative case residing abroad, e.g. to obtain an identity card by the child living abroad. For the purpose of such separate administrative proceedings, a foreign document or a part of it may be treated as confirmation of the status of parents (i.e. a man and a woman who gave birth to a child) being Polish citizens.

2

Problem obywatelstwa dziecka prawdopodobnie pochodzącego od obywatela polskiego niebędącego mężem surrogate mother : uwagi aprobujące wyroki NSA z 6 maja 2015 r. (II OSK 2372/13 oraz II OSK 2419/13)

100%

Mostowik P.

Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego

|

2018

|

tom 16

55-75

EN

The matter of these remarks are judgments of the Supreme Administrative Court of May 6, 2015, in which decisions on refusal to confirm the Polish citizenship of a child in similar, unusual circumstances, were given. A child who lives in the United States under the care of a couple of men, was born by a woman referred to in foreign law as "surrogate mother". In the performance of the contract this woman - nota bene married - became pregnant, gave birth to a child and gave it to the ordering (intending) party, i.e. a man of Polish citizenship and a second man with a homosexual relationship with him. Polish private law was applicable in this case, because according to the conflict-of-law rules on the origin of a child, the law of the state of citizenships applies. Administrative authorities and courts refused to confirm citizenship. The justification of the judgments indicated that the request did not find support in the collected documents and evidence. The courts and administrative bodies did not have the basic substantive premise to allow a different ruling to be issued. The author presents the position that Polish law in general could allow proving the paternity of the applicant, for which it would be necessary to initiate other domestic procedures confirming that the child comes from the applicant. Since they were not instituted, the authorities or courts in the proceedings in which the judgments were handed down did not have the basic data that would allow a different ruling to be issued. By the way, the author presents a few more general reflections on the current differences between legal systems. States that have legally introduced "surrogate motherhood" operations may not require other (most countries in the world) that the latter automatically recognize their effects of foreign law. Intensive globalization since the beginning of the 21st century also shows the free flow of information about the different legal systems. In the area of family law, differences have recently become diametrical and have a scale unprecedented by thousands of years of law development. No state in the world can expect (and does not expect) that any application of its law will have effects also abroad (i.e. from perspective of anther legal orders abroad). In the circumstance that underlie the decisions and judgments discussed, it would be helpful if American authorities and courts issued an additional document that would abroad accurately describe the woman who gave birth to the child and, moreover, that the particular man is the child's genetic father (what can be of great importance abroad). In the case of submitting such information, the evidence collected in the case would give the Polish authorities and courts a different answer in the discussed proceeding and other proceedings.

3

IMPLICATIONS OF THE ECJ 'LUGANO II' OPINION FOR EUROPEAN UNION'S EXTERNAL ACTIONS CONCERNING PRIVATE INTERNATIONAL LAW

63%

Niedzwiedz M. , Mostowik P.

Yearbook of Polish European Studies

|

2010

|

tom 13

129-148

EN

The remarkable 'Lugano II' opinion, given by the Court of Justice of the European Union in 2006 (case 1/03), has had the implications going far beyond the specific matter it decided, namely the competence of the EC to conclude the second Lugano Convention. Following 'Lugano II' numerous international agreements have been concluded with direct or indirect reference to the Court's opinion as justification for the EU's exclusive competence in a given area. This refers, among others, to the Hague Convention on the Choice of Court Agreements of 30 June 2005, the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, and the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. Therefore the Court of Justice, by its flexible reading of the so-called ERTA doctrine regarding the EU's implied external competence to conclude international agreements, has created a powerful instrument for the unification of sources of private international law sensu largo (especially rules concerning conflict of laws) and the undertaking by the EU of external actions in other areas of EU law.