scholarly journals La inseguridad jurídica derivada de la insuficiente regulación de la gestación subrogada en España = Legal insecurity arising from the insufficient regulation of surrogacy in Spain

2019 ◽  
Vol 11 (2) ◽  
pp. 815
Author(s):  
Silvia Vilar González
Keyword(s):  
Best Interests ◽  
Birth Registration ◽  
Legal Situation ◽  
Child Autonomy ◽  
Legislative Framework ◽  
The Will ◽  
Legal Uncertainty ◽  
Personal Interests

Resumen: La regulación legal española de la gestación subrogada, por la que cualquier acuerdo que la tenga por objeto será declarado nulo de pleno derecho, no evita que las familias españolas recurran a ella en países extranjeros donde su práctica es legal, para hacer realidad su voluntad procreativa. Los mecanismos legales que, de forma parcial y cambiante, se han ido implementando en nuestro país para, en determinadas circunstancias, permitir la inscripción del nacimiento y filiación de los niños nacidos en el extranjero a favor de sus padres intencionales, suponen una grave inseguridad jurídica y una clara incongruencia de nuestro marco legislativo. Por ello, resulta extremadamente necesario crear las instituciones adecuadas que otorguen respuesta a las nuevas necesidades planteadas y protejan los intereses personales en juego.Palabras clave: gestación por sustitución, filiación, interés superior del menor, autonomía de la voluntad, inseguridad jurídica.Abstract: The current legal situation on surrogacy in Spain, prescribing that any agreement aimed at such process shall be declared null and void, does not prevent Spanish families from going abroad to fulfil their procreation will through this technique. The partial and changing legal mechanisms that have been implemented in our country to allow, in certain circumstances, the birth registration as well as the filiation of the child born abroad through surrogacy in favour of the intended parents, leads to a serious legal uncertainty and to a clear incongruence of our legislative framework. Thus, it is extremely necessary to create the appropriate institutions that may give response to the new stated needs and protect the personal interests affected.Keywords: surrogacy, filiation, best interests of the child, autonomy of the will, legal uncertainty. 

scholarly journals Mothers and others: Transgender birth, birth registration and the rights of the child, with a focus on the United Kingdom and South Africa

2020 ◽  
Vol 20 (4) ◽  
pp. 203-223
Author(s):  
Julia SlothNielsen ◽  
Rachel SlothNielsen
Keyword(s):  
South Africa ◽  
United Kingdom ◽  
Gender Identity ◽  
Birth Certificate ◽  
Best Interests ◽  
Birth Registration ◽  
The United Kingdom ◽  
Rights Of The Child ◽  
Legal Situation ◽  
The Right

The review concerns the position of the identification as ‘mother’ or ‘father’ of trans persons who give birth. This matter has occupied courts in the United Kingdom, Germany, Brazil and Sweden recently, and could well arise in South Africa, our country of origin. The first part of the discussion relates to a claim of a trans man who gave birth to be registered as the father of the child. The legal situation in South Africa and the United Kingdom is compared, and particular focus is placed on the meaning of ‘mother’. A second issue for discussion relates to the right of the child born to a trans person to birth registration, notably, what the child’s interests are in relation to his or her parent’s identification details on his or her birth certificate. We conclude that the gender identity of the trans parent must be the primary factor determining his or her registration as a parent on the birth certificate, and that this solution also better serves the child’s best interests.

scholarly journals Glosa do postanowienia Sądu Najwyższego z dnia 15 stycznia 2019 r. (V CSK 298/18)

2019 ◽  
Vol 28 (4) ◽  
pp. 177
Author(s):  
Radosław Pastuszko
Keyword(s):  
Legal Situation ◽  
The Will ◽  
The Law ◽  
Legal Character

<p>The decision deals with the issue of the use of the institution of witness exclusion in relation to a person referred to a notarial act (drawing up a will) as a trusted person pursuant to Article 87 § 1 (3) of the Law on Notary. The author presented the legal situation of the witness of the will and the person trusted in the preparation of the notarial deed, as well as the legal character of the documentation in the notarial testament of the presence of the trusted person.</p>

scholarly journals The Legal Characteristics of the Patient’s «Living Will»: Doctrine and Jurisprudence

Medicne pravo ◽  
2021 ◽  
pp. 52-68
Author(s):  
A. A. Lytvynenko
Keyword(s):  
Living Will ◽  
Best Interests ◽  
Legal Capacity ◽  
Undue Influence ◽  
Witness Testimony ◽  
Substituted Judgment ◽  
Civil Proceedings ◽  
Legal Document ◽  
Life Sustaining Treatment ◽  
The Will

The advance of medical technologies since the mid-20th century has enabled to prolong a patient’s life in critical situations, though not all patients would tolerate to undergo such treatment. Therefore, the legal question encompass- ing the problem was to resolve the issue of a patient’s refusal of life-sustaining treatment. Since most of such patients are usually irresponsive and lack legal capacity, a solution featuring a legal document akin to a testament or trust has been proposed in the early 70s. Upon the gist of this document, a patient having full legal capacity would anticipate his/her further incapacitation and command to conduct or refuse medical treatment. His/her will, which is reflected in a «living will» has to be notarized, and upon the jurisprudence of various countries worldwide, though not omnipresently, affirmed by a court in order to avoid fraud and satisfaction of the illegitimate interests of third parties. Despite being introduced in the 1970s, living wills are still seldomly drafted by patients. In such case, when the patient lacking a living will falls incapaci- tated, his/her legal representatives and/or the healthcare institution commence civil proceedings so as to define the future fate of the patient using the concept of a substituted judgment, constructed by the courts upon the evidence of the past beliefs and habits of the said person, which requires extensive witness testimony. Resolving the presumed will of the patient is a very complicated issue, and in terms of lack of evidence, courts are not likely to authorize ter- minating the patient’s treatment, acting with a «negative» presumption to rule so. However, courts still may rule that futile treatment is not of the best interests of the patient (which is frequent in respect with minor patients who were born with major congenital ailments). Therefore, a living will, if legitimately drafted, is considered as a firm evidence of the will of the incapacitated person to continue, or to terminate treatment. The «living will» is an entirely voluntary-drafted document and is void upon the fact of undue influence, like an ordinary testament. The intro- duction of such document into the national legislation requires adopting vari- ous legislative acts, and such document is not legally valid unless provided by appropriate legislation. A living will reflects the will of the patient, not his/her legal representatives, and may not be drafted by them. In rare exemptions, the patient, unable of writing, may dictate the will’s content to a duly authorized person (e.g., a guardianship judge, like in Italy). Thus, the approval of the living will execution is the compliance with the will of the patient concerned: his/her guardian expresses his/her will, and the court affirms it. The control- ling function of the courts is hereby apparent. All in all, the «living will» is a considerable institute of private law, enacted in various countries worldwide and has its legal prospects in Ukraine, as well.

scholarly journals AN ANALYSIS OF THE DIRECTORS’ DECISION-MAKING FUNCTION THROUGH THE LENS OF THE BUSINESS-JUDGMENT RULE

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Jan-Louis van Tonder
Keyword(s):  
Decision Making ◽  
The State ◽  
Corporate Law ◽  
Company Law ◽  
Best Interests ◽  
Duty Of Care ◽  
Business Judgment Rule ◽  
Managerial Authority ◽  
Court Interpreting ◽  
Legislative Framework

The main purpose of this article is to examine the standard of conduct required from a director in the exercise of his decision-making function, through the lens of the business-judgment rule. The business-judgment rule provides the circumstances in which the duty to act in the best interests of the company and the duty of care, skill and diligence will be satisfied by a director. In order to achieve the stated goal the board’s statutory managerial authority, the standard of director’s conduct required to discharge the duty of care, skill and diligence as provided for in section 76(3)(c), and the features and functions of the business-judgment rule will also be examined. Section 5(2) of the Act provides that, to the extent appropriate, a court interpreting or applying the provisions of the Act may consider foreign-company law. This is complementary to section 5(1) which directs that the Act must be interpreted and applied in a manner that gives effect to the purpose of section 7. The article will refer to the highly developed corporate law in the State of Delaware to assist the research in examining the content and meaning of the decision-making function as a standard of director’s conduct. For this reason, the corporate legislative framework of the State of Delaware will also be discussed.

THE LEGAL SITUATION OF PEOPLE WITH DISABILITIES IN LATVIA

2018 ◽  
Vol 3 ◽  
pp. 107-116
Author(s):  
Judīte Kulačkovska
Keyword(s):  
Everyday Life ◽  
Personal Experience ◽  
People With Disabilities ◽  
Legal Framework ◽  
Actual Situation ◽  
Functional Disorders ◽  
Disabled Children ◽  
Disabled People ◽  
Legal Situation ◽  
Legislative Framework

Each year the number of people with disabilities in Latvia increases. More and more children are born with congenital problems. Many opportunities are not used to integrate disabled people in the society. The study aims to evaluate the legal situation in Latvia of both children and adults with disabilities. People with functional disorders are an integral part of society and the legislative framework should prevent their discrimination. While carrying out the analysis of legal framework defining documents, as well as the reflection of personal experience, it was found that the actual situation in the country does not entirely meet with the legal framework. People with special needs in both Latvian statutes and everyday life are still denoted with a term ’invalid’. In assessing the dynamics of the number of disabled children, it was found that the number of such children is increasing.

scholarly journals Childhood sexual abuse: disclosure and mandatory reporting – ethical and clinical implications

2018 ◽  
Vol 24 (2) ◽  
pp. 141-144
Author(s):  
William Burbridge-James
Keyword(s):  
Sexual Abuse ◽  
Child Protection ◽  
Mandatory Reporting ◽  
Best Interests ◽  
Clinical Implications ◽  
List Type ◽  
The Public ◽  
High Profile ◽  
Legislative Framework ◽  
Abuse Disclosure

SUMMARYThe widespread nature of child sexual abuse is increasingly recognised and in the public domain following high-profile cases. Children and vulnerable people need protecting from such abuse. At the heart of the dilemma facing clinicians is the need to feel supported by the legislative framework to maintain confidentiality and use their clinical discretion in the best interests of their patients, ensuring that they receive the help they need, but also protecting others at risk. There are compelling arguments both for and against strengthening legislation to improve child protection.LEARNING OBJECTIVES•To understand the context for the potential introduction of mandatory reporting.•To understand the arguments for and against mandatory reporting of childhood, including historic, sexual abuse.•To reflect on the implications of mandatory reporting of childhood, including historic, sexual abuse for readers clinical practice.DECLARATION OF INTERESTNone.

scholarly journals Ablehnungs- und Umsetzungsraten von Organtransplantationen – mögliche Ursachen und denkbare Auswege

10.38107/017 ◽  
2021 ◽  
Author(s):  
Monika Pfyffer von Altishofen
Keyword(s):  
Organ Donation ◽  
Retrospective Analysis ◽  
Living Wills ◽  
Organ Donors ◽  
Post Mortem ◽  
Legal Situation ◽  
Cantonal Hospital ◽  
Organ Donations ◽  
The Will ◽  
Observation Period

The work deals intensively with the very complex topic of post-mortem organ donation and the question of why it is that not all organs of potential organ donors are considered in transplantation. It covers central questions of the legally and ethically required handling of dying and death. In addition to a presentation of the relevant legal situation, the statistical findings on organ transplants performed in Switzerland during the observation period, the relatively high rates of rejection and low rates of conversion of organ donations by means of retrospective analysis of the data of all in 2013 at their then place of work, the Cantonal Hospital of St. Gallen are made and their results compared with those of the national SwissPOD study. The "primary desirable goal" of the measures taken to promote organ donation appears to the author to be less the "increase in available organs, but rather reflection on dying and one's own death", which is why she would welcome an increase in the number of living wills and organ donation cards available, in order to thereby reduce the emotionally stressful proxy decisions - regardless of the will specified therein.

scholarly journals Consent to the Use of Artificial Reproduction and its Legal Significance for Establishing the Origin of the Child

Lex Russica ◽  
2020 ◽  
pp. 21-31
Author(s):  
D. A. Belova
Keyword(s):  
Legal Status ◽  
Assisted Reproductive Technologies ◽  
Legal Aspect ◽  
Reproductive Technologies ◽  
Legal Regulation ◽  
Best Interests ◽  
Artificial Reproduction ◽  
Legal Information ◽  
The Status ◽  
The Will

The paper is devoted to the study of problems related to the establishment of the origin of children born as a result of artificial fertilization in the comparative legal aspect. It is noted that the principles laid down as the basis of the rules governing the order of the child’s origin vary significantly depending on whether it is a matter of natural or artificial reproduction. In the case of assisted reproductive technologies (ART), the value of blood (genetic, biological) kinship is leveled, and its substituted by the will of the person to acquire parental rights and obligations with regard to the child. A person’s will to become a child’s parent is expressed before the child is born in a written permission to use the ART. It is noted that the absence of normative rules regulating the order of expression of consent and conditions of its validity is an obvious gap in the legal regulation of the ART application. It is proposed to treat consent as informed consent if the person applying for the use of ART is provided not only medical but also legal information concerning the legal status of the person participating in the ART program and the legal implications of such participation. The author investigates requirements applied to mutual consent and voluntary consent, its substantive and revocable nature, as well as inadmissibility of representation when expressing the will to use the ART. The author argues that the will to acquire the status of a parent should be expressed in a separate document describing the content of the will and verified by the notary. In order to ensure the best interests of the child in parental care, it is proposed to impose statutory restrictions on the free will to apply the ART.

scholarly journals CONSENT TO TREATMENT AND OTHER MEDICAL INTERVENTIONS: LEGISLATIVE AND SCIENTIFIC APPROACHES

2020 ◽  
Vol 73 (12) ◽  
pp. 2816-2820
Author(s):  
Natalia D. Kogut ◽  
Serhii Y. Petriaiev
Keyword(s):  
Best Interests ◽  
Next Of Kin ◽  
Human Right ◽  
Mentally Disabled ◽  
Medical Interventions ◽  
Consent To Treatment ◽  
The Usa ◽  
The Right ◽  
Medical Articles ◽  
Personal Interests

The aim: To research approaches to maintaining balance between social and personal interests in the sphere of human right to consent to medical interventions. Materials and methods: The research is conducted with help of both general and special juridical methods of investigation. The empirical basis: an international legal acts; domestic laws of EU countries, the USA and other states; courts' decisions; statistics; juridical and medical articles. Conclusions: Consent to medical interventions is an absolute right of mentally capable adults and restriction of this right is never too necessary for social interest except for limiting measures due to pandemic or psychiatric disorders threaten. Next of kin or guardian has the right to consent for minors or mentally disabled in their best interests.

scholarly journals PARENTAL CHILD ABDUCTION CASES: PREVENTION IS BETTER THAN CURE

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Frans M Mahlobogwane
Keyword(s):  
South African ◽  
Hague Convention ◽  
Best Interests ◽  
Child Abduction ◽  
The Past ◽  
International Child ◽  
Legislative Framework ◽  
The Hague ◽  
The Hague Convention ◽  
Better Than

The past few decades have witnessed an unprecedented growth of child abduction cases that has generated the need for legislative framework governing such cases. This happened, after a period of uncertainty on how the courts should deal with abduction cases, as a result our South African legislature incorporated the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996. The Act came into operation on the 01 October 1997, making the Hague Conventionapplicable in South Africa. This paper will look into the issue of prevention of parental child abduction and whether such prevention will promote the child's best interests in such cases.

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