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Attempts to violate the protection of life and family: Ordo Iuris intervenes before the Tribunal in Strasbourg

Published: 27.09.2019

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The Ordo Iuris Institute intervenes as an amicus curiae in leading cases heard by the European Tribunal of Human Rights in Strasbourg. Their resolution may have a significant influence on the legal systems of the member states of the Council of Europe, including Poland. The proceedings in which the Institute submitted an amicus curiae brief focus on the protection of human life, marriage and family.

In a case brought against Germany, a transsexual woman gave birth to a child conceived in vitro and demanded to be registered as the child's father. The German registry office refused to do so and registered her as the child's mother. The woman brought a complaint, on her own behalf and that of her child, before the European Tribunal of Human Rights, claiming that the German authorities had subjected them to discrimination and torture and had violated her right to privacy and family life.

The Ordo Iuris Institute presented the Tribunal with an amicus curiae brief, noting that the gist of the problem lies in the legal definition of mother. If law defines mother as a woman who gave birth to a child (in recognition of a biological fact), then the natural consequence of such a definition is that a woman cannot be registered as the father even if she considers herself a man. The European Convention of Human Rights does not give the biological mother "the right to be named father."

Another case, against Austria, concerns a female homosexual couple who raise a child together and requested to be named "mothers" in the birth certificate. The first woman is the biological mother of the child and the other woman, her co-habiting partner, has adopted the child. The Austrian law stipulates, however, that a birth certificate should include such sections as "mother/parent" and "father/parent." A non-biological parent who has adopted a child may be designated solely as a parent. Both women brought a complaint, on their own behalf and that of their child, before the European Tribunal of Human Rights, making allegations of discrimination and violation of their right to privacy and family life. They believe that a birth certificate containing such wordings reveals a piece of private information about who is the biological parent and the adoptive parent.

The Ordo Iuris Institute prepared an amicus curia brief also in this case, indicating again that the European Convention of Human Rights does not give non-biological parents the "right to be called mother" or "the right to be called father." Keeping state birth records is supposed to ensure a credible source of information about the origin, date and place of birth of a child. It would be pointless to keep such a record if it contained fictitious information reflecting only the subjective desires of the child carers. A birth certificate should include accurate information about a child's parents so that in the future he or she will be able to exercise the right to know their own roots (biological identity), one of the human rights according to the Tribunal in Strasbourg. Designating an adoptive parent as a "parent", and not a "mother" or "father", in a birth certificate does not violate his or her right to privacy because birth certificates are not public and access to them is, as a rule, limited.

The proceedings against Belgium concern a man who was not notified by the hospital about his depressed mother's intention to commit an assisted suicide (so-called euthanasia). He learnt about his mother's death only after the fact. The man lodged a complaint with the Tribunal in Strasbourg, asserting that his mother's right to life was violated, just as his own right to respect for family life, because the hospital deprived him of the right to meet his mother for the last time by not having notified him of her intention.

In an amicus curiae brief, the Ordo Iuris Institute reminds that, in the light of Article 2 of the European Convention of Human Rights, the member states have the obligation to protect their citizens against any threats to life. The Convention explicitly stipulates that the intentional deprivation of life is admissible solely is strictly defined cases, i.e. for justifiable defense, arrest or preventing the escape of someone lawfully detained and for lawful action taken to quell a riot or an insurrection. A situation when a person suffering from a psychological or physical disease demands that a doctor or another third party kill them (e.g. by injecting a lethal substance) or provide assistance in suicide (e.g. by giving a prescription for a poison) cannot be an exception releasing any state from the obligation to protect human life. Neither the perpetrator's motivation (compassion for a suffering person) nor the victim's consent (request to be killed) justifies a failure to protect human life.

"The Ordo Iuris Institute has emphasised that if a state decides to allow euthanasia despite the aforementioned counterindications, as was the case with Belgium, it should enable the closest family to meet the patient before death and express their opinion to possibly persuade the patient to change their mind and, in case of a failure to do so, to say goodbye to the patient," underlined Magdalena Olek, a deputy director of the Ordo Iuris International Law Centre.

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