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Recognising Children Born Out of Surrogacy: A Review of the EU Draft Regulation on Cross-Border Parenthood
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 353-390
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Summary
ABSTRACT
Th is contribution critically reviews the European Commission's Proposal for a Regulation on the Recognition of Parenthood between Member States, adopted at the end of 2022. The contribution focuses on how the draft text deals with the cross-border recognition of children born out of surrogacy, linking human rights perspectives with a private international law analysis. By doing so, the contribution provides an overview of the relevant provisions of the Proposal, highlights problematic aspects with regard to surrogacy and children's rights, and tries to offer discussion points for the ongoing legislative procedure.
INTRODUCTION
In December 2022, the European Commission adopted a Proposal for a Regulation aimed at harmonising the rules of private international law related to parenthood within the European Union (EU). Parenthood established in one Member State would have to be recognised in all the other Member States. In addition to enhancing freedom of movement, the declared objective of the Proposal is to strengthen the protection of children's fundamental rights in cross-border situations, safeguarding, in particular, their right to an identity, and to family life. For these purposes, the Proposal sets out common rules on jurisdiction, applicable law and the recognition of decisions and authentic instruments, and introduces a European Certificate of Parenthood . What the Commission ultimately wants to achieve is to turn Commission President Ursula von der Leyen's famous statement into reality: ‘If you are parent in one country, you are parent in every country.’
Whether the statement also applies to surrogate-born children remains to be seen. Currently, parents who resorted to using surrogates in foreign countries are not only oft en confronted with burdensome and costly procedures when they try to have their parenthood status recognised in their country of origin, but might also have to face legal uncertainty. The situation is complicated by the different stands Member States have taken with regard to surrogacy. Some European countries do, under certain conditions, allow people (‘intended parents’ or ‘commissioning parents’) to engage a woman (‘surrogate’) for the delivery of a child. Others recognise children born out of surrogacy in relatively uncomplicated ways, even if the practice took place in a third country. Still other Member States are more reluctant when it comes to recognising parent-child relationships in surrogacy cases.
The Increasing Recognition of Child Rights by European Constitutions and its Relevance for the Criminal Regulation of Sexting
- Edited by Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak, Gerd Oberleitner
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- Book:
- European Yearbook on Human Rights 2020
- Published by:
- Intersentia
- Published online:
- 11 February 2021
- Print publication:
- 01 December 2020, pp 349-390
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ABSTRACT
While the United Nations (UN) Convention on the Rights of the Child (CRC) does not require states to elevate children's rights to constitutional status, in recent years various European countries have discussed whether to include specific child rights in their constitutions. This contribution illustrates the remarkably different approach towards the constitutionalisation of the rights of the child shown by Austria, Germany and Italy. Against this background, this contribution explores how these different constitutional perspectives might impact the criminal regulation of ‘sexting’, that is, the consensual exchange of sexual content via information and communications technology. This emerging issue, at the crossroads of the recognition of children's right to privacy and the need to protect them from sexual abuse and child pornography, provides an intriguing setting in which to examine the actual influence of children's human rights. Drawing on this analysis, this contribution argues that a clear constitutional recognition of children's rights may advance their actual implementation in legislation. Furthermore, it elaborates on some key requirements that a rights-based criminal regulation of consensual sexting should fulfil. Child participation in particular is needed in order for the legislator to appreciate the children's situation in full and acknowledge children as full rights-holders. Linking constitutional and criminal law, this contribution provides a thorough analysis of the three countries’ stances towards the rights of the child, as well as their actual relevance as regards a highly sensitive issue with which most legislatures are currently struggling.
INTRODUCTION
While almost all global states have ratified the UN Convention on the Rights of the Child (CRC, the Convention), there is less consensus whether children's rights should be acknowledged by domestic constitutional law. The recognition of children's rights at the constitutional level has been the subject of sparse but pivotal pieces of research. is contribution will qualitatively analyse how the Convention has had constitutional implementation in selected European countries, stimulating normative changes or nourishing a scholarly discussion. To this end, it will take a closer look at Austria, Germany and Italy. While these countries are clearly not representative of the various national stances within Europe, they show a remarkably different constitutional approach in this regard.
Unaccompanied Asylum-Seeking Children as Rights Holders: Theory and Reality in the EU Legal System
- Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
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- Book:
- Safeguarding Children's Rights in Immigration Law
- Published by:
- Intersentia
- Published online:
- 30 April 2020
- Print publication:
- 01 January 2020, pp 41-66
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INTRODUCTION
In the past, the understanding of children being ‘rights holders’ has been widely criticised. The recognition that children have rights on their own, and that they should have the opportunity to – at least, partially – exercise them, was far from obvious. Indeed, children have long been treated as objects of protection rather than as subjects of rights. In the meantime, the idea of children as rights holders has been incorporated into the European legal order, following the example of the 1989 United Nations Convention on the Rights of the Child (UNCRC). Especially the right to be heard is one of the pivotal components of the idea of the child as a rights holder.
However, the practical implementation of this principle is open to criticism. Children are frequently not asked for their views or their consent in the performance of crucial acts and the taking of fundamental decisions affecting their lives. Migrant children – especially if unaccompanied – are particularly affected in this regard. To illustrate this by means of examples: in almost half of the Member States of the European Union medical examinations for age assessment may be carried out without asking the child to consent. Moreover, 14 states do not allow children to lodge an asylum application in their own right, requesting the child's legal representative to provide for it. However, legal representatives are often not appointed in a timely manner, while important deadlines are linked to the moment of the lodging of the asylum application. As a result, the child's access to crucial services such as the education system is gravely postponed.
This contribution deals with the practical implementation of the principle of children as rights holders in the field of migration. It will especially draw on the two mentioned aspects: the child's consent in the framework of medical tests for age assessment, as well as the subject(s) in charge of lodging the asylum application. While both topics are of critical relevance for most child applicants, the European acquis leaves a certain margin of appreciation to the Member States in this regard. After a brief exposition of the legal framework in which the principle of children as rights holders is enshrined (section 2) and of the relevant EU provisions affecting child migrants in this connection (section 3), this chapter will take a closer look at the migrant child's right to be heard (section 4).