The subject of this paper are, primarily, the methods of
determining and disputing maternity and paternity, regulated by the
Family law on the Republic of Serbia. In order to shed light on them
in a comprehensive way, we will divide the work into four logical
units, ie. four chapters. In the first chapter, we will present general
concepts about the parent-child relationship, its basic manifestations
and legal phenomena that are directly related to it. In the next chapter,
we will deal with the material and procedural aspects of the child's
family status, trying to clarify its characteristics in the domestic and
the rights of individual European countries (France, Germany,
Austria, Montenegro, Croatia, Russia). Therefore, we will research
the methods for determining maternity in domestic and comparative
law, pointing out that in some countries it can be based on
recognition, and not only on the entry of data on the mother in the
birth register and, possibly, on the verdict. In the spher...e of paternity
rules, we will distinguish between marital and extramarital paternity,
so we will underline the different conditions that must be met in
certain countries in order for the (ex)husband of the mother to be
considered the father of the child. We will also present the different
conditions for challenging marital paternity and the practice of the
ECHR on this issue. In the domain of extramarital paternity, we will
compare domestic and foreign rules on the conditions for his
recognition and on the possibilities of oppugning him. In the
procedural part of the paper, we will pay special attention to actively
legitimized persons for initiating litigation to determine and challenge
maternity and paternity, and to the deadlines prescribed in domestic
and analyzed foreign laws.
The third chapter will be dedicated to the issue of
establishing parenthood with biomedical assistance, and in it we will
present the general rules on these procedures in domestic and
comparative law, the types of these procedures and their disputable
elements. We will pay special attention to surrogacy, from the point
of view of existing proposals in domestic law and positive solutions
from comparative law. Given the importance of this institution, in this
part of the research we will deal with the rights of those countries that
we have not studied in the course of work so far, and in which
surrogacy is allowed, such as Greece, Canada, Ukraine, Macedonia,
Great Britain and the USA. We will deal with the conditions under
which it is allowed, its types (commercial and non-commercial,
complete and incomplete subrogation, posthumous insemination of a
surrogate mother), ways and conditions of using the services of a
surrogate mother, contractual rights and obligations of intended
parents and surrogate mother, status of the child surrogate mother. We
will also analyze the characteristic decisions of the ECHR concerning
surrogacy, which may be a kind of roadmap for the Serbian legislator.
In the last chapter, researching the rules on adoption, we
will deal with its concept, historical development, functions, material
and formal conditions for its establishment, types, effect and methods
and consequences of its termination. As the Preliminary draft
proposes a return to incomplete adoption, which was not so long ago
present in Serbian family law, we will also express our opinion on it.
Considering that the biggest differences between domestic and certain
foreign laws are manifested in the sphere of the age difference
between adopters and adoptees, we will deal with it in particular, in
order to draw a conclusion about the one that best suits natural laws
and modern needs. We will point out the importance of the best
interest of the child as a condition for establishing adoption, both in
domestic and comparative law, and in the practice of the ECHR.
