The Right of a Child to a Family: Surrogate Mother or Genetic Parents? Moral and Legal Perspective

REVISTARQUIS ◽  
2016 ◽  
Vol 5 (2) ◽  
Author(s):  
Erick Solano Coto

ResumenEn Costa Rica, durante el siglo XX, tanto la ordenación territorial como las políticas ambientales y sus respectivos instrumentos de implementación resultaron ineficientes o insuficientes para evitar, o cuando menos reducir, los impactos negativos que generan, sobre el ambiente, las diversas actividades desarrolladas por el ser humano. Sin embargo, durante las últimas dos décadas -principalmente, a partir de la reforma al artículo 50 de la Constitución Política, en 1994, que consagró el derecho a un ambiente sano y ecológicamente equilibrado- encontramos esfuerzos legislativos, administrativos y comunitarios, encausados a lograr una adecuada armonía entre las actividades humanas, la protección del ambiente y el crecimiento ordenado de las ciudades. Sin lugar a dudas, el elemento ambiental ha adquirido una creciente relevancia en el país, a lo largo de los últimos veinte años, que se ha visto reflejadaen la promulgación de leyes y reglamentos, que buscan tanto consagrar la protección ambiental, como suplir la ausencia, ya se directa o indirectamente, de normas jurídicas de naturaleza urbanística.Determinar con mayor precisión, desde la perspectiva jurídica, la incidencia del elemento ambiental en la ordenación territorial y la planificación urbana, a través de las acotadas normas y a su vez, de las políticas públicas y sus instrumentos de implementación, se convierte en el objetivo del presente artículo; buscando, a su vez, ofrecer un análisis sobre las resoluciones, tanto adminstrativas como judiciales, que permita identificar sus alcances y afectación -positiva o no- sobre las Administraciones Públicas y los ciudadanos. Lo anterior, con la finalidad de reconocer sus efectos y definir, de cara al futuro, cuáles aspectos se pueden y deben mejorar, en aras de lograr la consecución de una cohesión socioeconómica y un desarrollo sostenible pleno, que repercuta en una mejor calidad de vida para la población costarricense. AbstractDuring the twentieth century in Costa Rica, spatial planning and environmental policies, as well as their implementation tools, proved they have been inefficient or insufficient to avoid, or at least, to reduce, the negative impacts produced over the environment by the multiple activities developed by humans. However, during the past two decades -mainly, since article 50 of the Constitution was modified in 1994, enabling the right to enjoy an ecologically balanced and wholesome environment- we can find legislative, administrative and communitarian efforts, looking forward to an adequate harmony amid human activities, environmental protection and cities organized development. Without a doubt, the environmental factor has acquired an increasing relevance in the country during the last twenty years. This has been materialized by the enactment of laws and bylaws, trying to achieve not only environmental protection, but also support - direct or indirectly - the absence of urbanistic laws and regulations.To determine with accurate precision, from a legal perspective, the incidence of the environmental factor in spatial and urban planning, through the mentioned laws and bylaws, the public policies and their implementation tools, is the purpose of this paper; and also, to offer an analysis about the administrative and judicial decisions, that may allow the identification of the results - positive or not- over the Public Administrations and the citizens. The later, with the aim to recognize their effects, and define towards the future, which bearings may and must be improved. This in order to conquer a social economic cohesion and a plain sustainable development that will positively affect citizens’ quality of life.


2020 ◽  
pp. 76-81
Author(s):  
M.M. Novytska ◽  
A.V. Kozhushko

The article is devoted to the study of the legislation of Ukraine regulating the procedure of surrogacy and the main legal gaps in this area. In addition, a legal analysis and comparison of the legislation in the field of surrogacy in such foreign countries as Belarus, Kazakhstan, the Czech Republic, Israel, Sweden, the Netherlands, Nigeria, Finland, some US states. The main legal cases arising in Ukraine during and after the use of the surrogacy procedure, their causes and consequences are highlighted. The case law of national courts is given and analyzed. In particular, the procedure for legal regulation of the mechanism of registration and registration of a child born as a result of surrogacy needs to be improved in order to avoid the possibility of a surrogate mother entering information about herself as a child’s mother in the state register of civil status and further challenging maternity in court. A comparative analysis of the experience of foreign legal regulation of the institution of surrogacy and focused on their pros and cons. The basic provisions and principles which can be borrowed from experience of realization by foreign countries of procedure of surrogacy are offered. When creating regulations, a number of guarantee norms should be taken into account, which will be the basis for avoiding potential conflicts and negative situations. In particular, they include: the refusal of a surrogate mother to give the child to biological parents; the refusal of the biological parents to pick up the newborn child; cases of birth of two or more children; birth of a dead / sick child; the desire of the surrogate mother to terminate the pregnancy, the refusal of the genetic parents to perform their duties in terms of paying for the services of the surrogate mother. The conclusion about the necessity of the Ukrainian legislation in legal regulation and rationing of surrogacy by creation of the uniform profile regulatory act is carried out.


2017 ◽  
pp. 18-48 ◽  
Author(s):  
Ebru Demir

The right to internal self-determination offers a legal ‘checklist’ for the UN to provide both legitimacy and sustainability to peacebuilding processes. The right both clarifies the actors of post-conflict reconstruction and also concretises to what extent these actors should be incorporated into peacebuilding processes. Although the concept of local ownership has become an often-cited concept in peacebuilding literature, the legal ground of the concept (i.e. the right to internal self-determination) has been disregarded. This paper aims to reveal the legal aspect of the concept of local ownership and thus, attaches the right to internal self-determination with local ownership.


Author(s):  
Kreß Claus ◽  
Nußberger Benjamin K

In 1976, Israel conducted a successful, but highly controversial military rescue operation in Entebbe, Uganda, to save its nationals taken hostage on Ugandan territory by members of the ‘Popular Front of Liberation of Palestine’. From an international legal perspective, this case revolves around the existence of a right of a state to take military action to protect its nationals abroad in mortal danger. Following an extensive legal debate in the Security Council on the incident, it appears safe to conclude that a rescue operation such as conducted in Entebbe passes the threshold for a use of force within the meaning of Article 2(4) UN Charter. In light of the ambiguous justification, however, it appears that an Entebbe-type situation falls within a grey area of the prohibition of the use of force. Still, the incident suggests that if states are willing to support the legality of a military rescue operation only the right of self-defence can conceivably justify such a use of force, and only in a case where the local state does not itself deal with the threat in good faith, and under strict conditions of proportionality.


2012 ◽  
pp. 137-160
Author(s):  
Amedeo Santosuosso ◽  
Valentina Sellaroli

In recent decades informed consent has become simply the expression of the fundamental rights of individuals despite the fact that some signs of its ambiguous nature still remain. This means that the idea of informed consent is very much influenced by external values, by the specific cultural context or by the laws in force in a certain historical period. The great amount of national and international legal references lead us to believe that, in this matter, there is a common constitutional sense, whose conceptual core is shared by the whole society and which consists of fundamental rights to self determination and to health as defined thanks to recent medical and scientific innovations. In this contribution, we shall address issues relating to individual liberty rights, examine a number of Italian and European judicial decisions concerning the right to life and self determination and consider the relationship between civil and criminal principles in matters of self determination in the light of constitutional principles deriving from the conclusion that the concept of individual from a legal perspective differs from the concept of individual from a biological perspective and that the biological boundary itself of any individual may be modified in several personal ways.


2019 ◽  
Vol 48 (1-2) ◽  
pp. 15-38
Author(s):  
Paula Giliker

In June 2016, the United Kingdom voted in a referendum to leave the European Union (EU). The consequences of Brexit are wide-ranging, but, from a legal perspective, it will entail the repeal of the European Communities Act 1972. The UK government does not intend to repeal EU law which is in existence on exit day, but, in terms of the interpretation of retained law, decisions of the Court of Justice of the European Union (CJEU) will no longer be binding after Brexit. Nevertheless, s. 6(2) of the EU (Withdrawal) Act 2018 does allow the UK courts to continue to pay regard to EU law and decisions of the CJEU ‘so far as it is relevant to any matter before the court’. This article will consider the meaning of the phrase ‘ may have regard to anything…so far as it is relevant’. In empowering the courts to consider post-Brexit CJEU authority subject to the undefined criterion of relevancy, how is this power likely to be exercised? A comparison will be drawn with the treatment of Privy Council and the UK case law in Commonwealth courts following the abolition of the right of appeal to the Privy Council, with particular reference to the example of Australia. It will be argued that guidance may be obtained from the common law legal family which can help us predict the future relevance and persuasiveness of CJEU case law in the interpretation of retained EU private law.


2019 ◽  
Vol 11 (3) ◽  
pp. 900 ◽  
Author(s):  
Miao He

Access to justice is an irreplaceable complementary right. Without enforcement, environmental law would be ‘toothless’ in practice. Recently, China has made some significant progress in protecting the relevant parties’ right to access to justice in environmental matters. However, there are still some problems and challenges in the protection of this right in theory and in practice. To effectively realize this right, it is necessary to analyze the present situations and problems of the right in China from a legal perspective. This is done by introducing and analyzing the laws, regulations, policies, and practice concerning the right to access to justice in environmental matters in China. Specifically, this paper discusses the present situations of this right from several aspects. Based thereon, a brief problems analysis will be made. Some possible suggestions on how to better protect the right in China will be proposed from the perspectives of engaging, effectiveness and efficiency. These suggestions include empowering various parties with more capacity and possibilities; establishing a legal aid system and special fund; improving the exemption system and attorney fee transfer system; establishing a pre-litigation examination mechanism; and stimulating various parties’ potential roles.


2021 ◽  
Vol 22 (5) ◽  
pp. 691-702
Author(s):  
Boris Burghardt ◽  
Leonie Steinl

AbstractIn recent years, no area of criminal law has received more public attention than the laws on sexual violence. Discussions about the need for reforms have exhibited a mobilizing force extending far beyond the legal community. From a legal perspective, these discussions concern intricate normative questions regarding the content of the right to sexual autonomy and the suitability of the consent paradigm to establish the limitations of its protection under criminal law. At the same time, they ultimately concern the question of gender-related societal power hierarchies. Acknowledging these broader socio-political dimensions allows us to comprehend the highly contentious manner in which this debate is often conducted. This Special Issue attempts to analyze from a transnational perspective both the fundamental legal and socio-political questions in the current discussions on sexual violence and criminal justice. A recurring theme is the question as to whether criminal law can be used not only as an instrument of repressive social control, but also as a means of power-critical – even emancipatory – social policy.


2020 ◽  
Vol 9 (2) ◽  
pp. 227
Author(s):  
Putu Eva Ditayani Antari ◽  
Dewa Ayu Yeni Asmari

<p><em>Surrogate Mother is a method used by infertility couples to have offspring who still have a genetic relationship. This method is usually carried out by married couples who cannot have offspring through the IVF method. The implementation of Surrogate Mother is generally based on agreement. This agreement is an agreement that grows and develops in the community so that it is not yet known in the Penal Code. So this agreement is included in the new innominaat agreement. In Indonesia, until now there has been no legal umbrella related to Surrogate Mother. The existence of this agreement is inseparable from the principle of freedom of contract which gives freedom for everyone to make any agreement and with anyone. With the Surrogate Mother agreement, the right to continue descendants which are human rights (civil and political rights) which cannot be reduced under any circumstances can be fulfilled. In the implementation of Surrogate Mother, we also pay attention to certain restrictions as regulated in IVF regulation, including those conducted by a legitimate married couple and in a state of infertility. Therefore, the type of Surrogate Mother that can be done is Gestational Surrogate or Intrafamillie Surrogate by implanting the results of fertilization of a legitimate husband and wife into the womb of a Surrogate Mother</em>.</p>


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