Materijalni i procesni uslovi za zasnivanje odnosa roditelja i deteta u savremenom porodičnom pravu
AuthorMilošević, Milena S.
Committee membersVlašković, Veljko
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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.