Orzeczenie: X, Y i Z p-ko Wlk. Brytanii
Komentarz autorstwa Marthe Aastad Brøndbo (w j. angielskim) dot. wyroku ETPCz w sprawie osoby transseksualnej (K/M), której odmówiono możliwości zarejestrowania w aktach stanu cywilnego jako ojca dziecka swojej wieloletniej partnerki. Dziecko zostało poczęte w wyniku sztucznego zapłodnienia.
The case concerns X, who is a female-to-male transsexual that has lived in a permanent union with Y since 1979. In 1992, Y gave birth to Z as a result of artificial insemination by a donor. X was born with a female body, but has felt like a sexual misfit from the age of four. He underwent gender reassignment surgery in 1979 and has lived as a man since.
The main hospital in Norway, located in Oslo, has been treating transsexuals since 1979. Every year, between 50 and 70 patients apply for analysis, and approximately 20 people are diagnosed as trenssexuals. About 15 people are sent to further surgical intervention on a yearly basis. To be allowed gender correctional surgery one has to go through series of tests to assure health personel that one is truly conscious about ones wishes, and the treatment normally takes between 2 and 4 years.
After being granted the necessary treatment, X was asked to acknowledge himself to be the father of the child within the meaning of the Human Fertility and Embryology Act 1990. But after the birth of the child, X was not permitted to be registered as the father and the Minister of Health replied that only a biological man could be regarded as a father for the purposes of registration.
In Norway, a person who has corrected his or her gender gets a new identification number. We follow a system where the third number in a group of five indicates the sex of the holder. He who is a man has an odd number, while the women has an even. So if someone goes from one sex to another and gets a new identificational number, it will no longer be possible to see in this person´s papers that he/she used to be the opposite sex.
The European Court of Human Rights recall that the notion of «family life» in Article 8 of the convention is not confined only to families that are based on marriage, but that in can also regard other de facto realtionships. A number of factors may be relevant when deciding upon wheter a relationship is to be concidered «famlily life» in the constitutions notion of the word.
In the developed world of today, it is difficult to define the term «family». When earlier, this was understood as a husband, his wife and their common children, today the term is a lot less clear. Gay couples are allowed to become parents, many are raising children on their own both with known and unknown second parents, and there is nothing strange in having «mine, yours and our» children living under the same roof. This makes the use of «family life» vague and the term is always open for discussion.
The most relevant definition of family is today that it is an institution or a household that consists of individuals tied together throuh inheritance from common ancestors, marriage, partnership or adoption.
The core family still consists of parents and their children, but the blood lines are no longer so significant. There are several different compilations of families, and many argue that there are several concepts that are central views upon family life besides blood and common genes.
The first Brittish occasion of same-sex parents to jointly sign the birth certificate for their daughter found place earlier this year. This proves that there has been some changes in the UK since the relevant case. Goverments and law-makers are more liberal and the need for alternative statutes are recognised to a large extent.
The Court of the case observes that there is no common European standard concerning transsexual´s parental rights. In this case, one also has to figure out the social relationship between a person playing the role of father and a child conceived by AID.
Transsexual people challenge our familiar believes about gender, gender identity and gender expression. This group is very exposed for violence, harassment and discrimination.
The Norwegian government has recognized the problems of the transsexuals to quite large extents over the last ten years. They want to end the discrimination of these people and to increase their quality, and general circumstances of life. Norway is a supporter of the Yogyakarta, and hence the state tries to secure the rights of those who are discriminated on behalf of their gender identity. Protection against discrimination of transsexuals are today interpreted under the law on equal treatment, but there has been questioned why a more specific protection of transgender rights is not yet implemented in the law.
The Court came to the conclusion that the case of X, Y and Z v. UK was not a breach of Article 8 because a state should not be obliged to recognise a man as a father of a child when he in fact is not the biological father. The Court found that the disadvantages suffered by the applicants were not severe, since none of them couldn´t be solved in additional ways other than to make X the father on the child´s birth certificate.
1) http://www.tidsskriftet.no/?seks_id=1948436
2) http://www.advocate.com/News/Daily_News/2010/04/19/First_Same_Sex_Parents_Jointly_Sign_Birth_Certificate/
3) http://www.regjeringen.no/nn/dep/bld/dok/nouer/2009/nou-2009-14/14/5.html?id=568885
The main hospital in Norway, located in Oslo, has been treating transsexuals since 1979. Every year, between 50 and 70 patients apply for analysis, and approximately 20 people are diagnosed as trenssexuals. About 15 people are sent to further surgical intervention on a yearly basis. To be allowed gender correctional surgery one has to go through series of tests to assure health personel that one is truly conscious about ones wishes, and the treatment normally takes between 2 and 4 years.
After being granted the necessary treatment, X was asked to acknowledge himself to be the father of the child within the meaning of the Human Fertility and Embryology Act 1990. But after the birth of the child, X was not permitted to be registered as the father and the Minister of Health replied that only a biological man could be regarded as a father for the purposes of registration.
In Norway, a person who has corrected his or her gender gets a new identification number. We follow a system where the third number in a group of five indicates the sex of the holder. He who is a man has an odd number, while the women has an even. So if someone goes from one sex to another and gets a new identificational number, it will no longer be possible to see in this person´s papers that he/she used to be the opposite sex.
The European Court of Human Rights recall that the notion of «family life» in Article 8 of the convention is not confined only to families that are based on marriage, but that in can also regard other de facto realtionships. A number of factors may be relevant when deciding upon wheter a relationship is to be concidered «famlily life» in the constitutions notion of the word.
In the developed world of today, it is difficult to define the term «family». When earlier, this was understood as a husband, his wife and their common children, today the term is a lot less clear. Gay couples are allowed to become parents, many are raising children on their own both with known and unknown second parents, and there is nothing strange in having «mine, yours and our» children living under the same roof. This makes the use of «family life» vague and the term is always open for discussion.
The most relevant definition of family is today that it is an institution or a household that consists of individuals tied together throuh inheritance from common ancestors, marriage, partnership or adoption.
The core family still consists of parents and their children, but the blood lines are no longer so significant. There are several different compilations of families, and many argue that there are several concepts that are central views upon family life besides blood and common genes.
The first Brittish occasion of same-sex parents to jointly sign the birth certificate for their daughter found place earlier this year. This proves that there has been some changes in the UK since the relevant case. Goverments and law-makers are more liberal and the need for alternative statutes are recognised to a large extent.
The Court of the case observes that there is no common European standard concerning transsexual´s parental rights. In this case, one also has to figure out the social relationship between a person playing the role of father and a child conceived by AID.
Transsexual people challenge our familiar believes about gender, gender identity and gender expression. This group is very exposed for violence, harassment and discrimination.
The Norwegian government has recognized the problems of the transsexuals to quite large extents over the last ten years. They want to end the discrimination of these people and to increase their quality, and general circumstances of life. Norway is a supporter of the Yogyakarta, and hence the state tries to secure the rights of those who are discriminated on behalf of their gender identity. Protection against discrimination of transsexuals are today interpreted under the law on equal treatment, but there has been questioned why a more specific protection of transgender rights is not yet implemented in the law.
The Court came to the conclusion that the case of X, Y and Z v. UK was not a breach of Article 8 because a state should not be obliged to recognise a man as a father of a child when he in fact is not the biological father. The Court found that the disadvantages suffered by the applicants were not severe, since none of them couldn´t be solved in additional ways other than to make X the father on the child´s birth certificate.
1) http://www.tidsskriftet.no/?seks_id=1948436
2) http://www.advocate.com/News/Daily_News/2010/04/19/First_Same_Sex_Parents_Jointly_Sign_Birth_Certificate/
3) http://www.regjeringen.no/nn/dep/bld/dok/nouer/2009/nou-2009-14/14/5.html?id=568885
Pliki do pobrania:
Dodaj komentarz
Dodano: 2011-02-08 12:33:11
©2008 Wydział Prawa i Administracji UW. Wszelkie prawa zastrzeżone :: system CMS: MG
