The feminist law theory is considered partly a law legal political program and partly a social policy theory. Its backgrounds dated back to the feminist movements launched in the early 19[th] century that successfully fought and argued for the emancipation of women in Europe and North America.[1]
Certain societies in the course of history have exceptionally admired women as mothers and wives yet placed in an unquestionably disadvantageous situation in terms of law are compared to a men being the head of the families. (On the other hand, women have also had privileges, e.g. they have not been obliged for military service until the modern ages.) There have been several areas of law where women have suffered disadvantages: property law, exercising parental custody, marital law and, in general, in-family relations.
Having become stronger as of the turn of the century, the emancipationist and feminist movements have, by the late 20[th] century, attained equal rights for women in most parts of the world. It has gained proper attention and has been incorporated in the texts of the major international declarations and conventions thus obliging the member states for terminating the legally disadvantageous situation that has been prevailing up to then.
The Preamble of the Universal Declaration of Human Rights[2] also acknowledged the equal rights of men and women. It concretely declares the equal rights of the spouses by saying that men and women have the same rights during marriage and at its dissolution.[3] This principle is confirmed by Article 23 of the International Covenant on Civil and Political Rights[4] . Finally but without aiming at completeness, the Convention on the Elimination of All Forms of Discrimination against Women, Article 16 of which involves almost every family law principle.[5] The Republic of Hungary published the Convention, singed at Rome in 1950, for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, relatively late only with Act XXXI of 1993. Article 8, 12 and 14 as well as Article 5 of the Protocol No. 7 of Rome Convention contain observations significant for our topic.
Naturally, the acknowledgement of the equal rights of men and women is au unquestionable fundamental provision of the constitutions of civil societies also declared by the Hungarian Constitution: The Republic of Hungary shall ensure the equality of men and women in all civil, political, economic, social and cultural rights.[6]
The equal rights for men and women is a constitutional principle which was assigned various independent reasons and interpretations with different contents by the different fields of law. The equal rights of men and women in family law relations is a basic principle of family law... On the other hand, family law can only provide for legal emancipation but the legal measures can neither provide for or ensure the actual success of equal rights in marital and family lives.[7]
For me, the question arises whether the equal rights of men that seem or are considered to be invulnerable really succeeds in the fields of legislation (protection of embryos, adoption, bearing a name) and law enforcement (bearing a name by the child, emplacement of children). Is the exercising of the father's rights not pushed in the background in or, at least, some situations?
First, let us discuss the position of the woman not living in wedlock (mother) during her pregnancy and at its abortion. It must be accepted that such woman has, due to her right of self-determination, the right to decide alone whether or not to abort her non-desired pregnancy by signing a statement that there is a situation of serious crisis since the law provides the possibility for her.[8]
We agree with the position that the term "serious crisis" can cover even a future situation where the mother would be compelled to raise her child among unsuitable circumstances or even alone. According to the Act on Foetal Life, a "serious crisis" is which causes physical or mental shock or social impossibility and thereby endangers the healthy growing of the embryo. The existence of such serious crisis of verified by the pregnant woman by signing a form.[9] Similarly to the Belgian, Norwegian and German Law, a third person or body is not entitled to examine the so verified crisis since it make the nature of the indication unambiguous in itself, namely that the state waives the right to study the crisis situation and makes the abortion subject only to the request of the woman.[10] The same is foreseen by the executive decree which declares that the existence of the conditions specified by Section 12 (6) of the Act of
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Foetal Life are verified by the woman requesting an abortion and the fellow-worker has no right to balance the contents of authenticity of the declaration.[11]
1.1 In the event that the mother gives birth to the baby among the conditions described above in spite of the father's objection (even if it has been an ad hoc relationship on both parent's side and the child some from a single sexual intercourse) the law provides full protection for the child.
A child born out of wedlock and is not yet legally bound to his/her father is especially interested in such protection. The settlement of this relation also affects the diminishing or termination of the discrimination against children born out of wedlock that has been experienced for a long time during history. Legal regulations, even if not alone, are capable of forming the customs, views and attitude of the society.[12]
The Universal Declaration of Human Rights declares that motherhood and childhood are entitled for special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.[13] The International Covenant of Civil and Political Rights emphasizes that every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as required by his status as a minor, on the part of his family, society and the State.[14] The International Covenant of Economic, Social and Cultural Rights declares that the States Parties to the Covenant acknowledge that special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions (Para 3 of Article 10)
It is a tendency of the general development of European law that the settlement of the position of children born out of wedlock has been put on the agenda. In Hungary, the Act XXIX of 1946 provided for the judicial establishment of fatherhood and the wider acknowledgement by a father. A major part of these provisions was adopted by the text of the Act on Family Law of 1952.[15]
The equal rights of children born out of wedlock are realized by being born in wedlock. The law does not distinguish the case where the mother deliberately misleads the man in respect of the circumstances of her becoming pregnant by saying that she is protecting with a proper and safe contraceptive device. It should not be disregarded that the circumstances of the cases involving such deception are mostly hard to prove. The most issue question is that the child who is born can do nothing about what were his parents' intentions prior to his conception.
1.2 As regards to those living in family, it can be established that Section 1 (1) of the Family Law Act (hereinafter: FLA) declares in accordance with those described above that the purpose of the Act on marriage, family and tutorage is to regulate and protect, in accordance with the Constitution of the Republic of Hungary, the institution of marriage and family and to provide equal rights for the spouses in their marriage and family life...........Section 23 (1) and (2) of the FLA contains more precise provisions of the equal rights of the spouses by declaring that the spouses shall have equal rights and obligations and they shall decide on the affairs of their wedlock together but individually in affairs affecting their person only although the interests of the family must also be considered.
The norm defined on Section 23 of the FLA is a right and obligation at the same time and a Janus-faced requirement. It is supposed to ensure the autonomy of the spouses and the unity of the family. Fine-tuning the two requirements is not an easy task and if the balance is overturned to any direction it may lead to the dissolution of the marriage.[16] For me, the issue of undertaking or not undertaking a child by spouses living in wedlock is one if not the most important issue of a wedlock. Therefore, this issue should not be put on the side of autonomy but to the center of the joint decision-making mechanism of the spouses since this issue concerns the essence of the family as legal institute. Section 24 of the FLA mentions separately the obligation of faithfulness in Section 24[17] that is based on that the strongest human relationship of a spouse is the one to his/her spouse. Faithfulness, in a narrower scope, means sexual faithfulness to the spouse; the sexual connection and the sexual exclusivity are fundamental characteristics of a marriage. The thousand-year-old postulation of faithfulness has practical grounds: the wife's faithfulness ensures that the blood-father of the child is the husband while that of the husband ensures that the husband has no children another than his wife's children.[18]
From this "casual" connection we may arrive at the conclusion that if the spouses plan to have a child after getting married then they must raise jointly, either together or separately, the child conceived and born from their sexual intercourse. Should the mother make up her mind until the 12[th] week (of her pregnancy) she has the possibility to exclude this issue from the scope of the issues of the wedlock and make it the individual "problem" of the mother only not even giving the father the opportunity to amicably convince her. This means nothing else but that the undertaking of a child planned and conceived in wedlock legally leads to abortion without the knowledge of the father/husband.
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The essence of equal rights can be expressed as being equally ranked and equal rights extend to every field of the spouses' relationship including personal and property rights and the parent-child relationship.[19]
The principle of equal rights of the spouses requires that equal chances be provided also in the solution of conflicts... It is another issue, though, that the actual equality of chances in conflicts does not totally come true primarily due to reason beyond law.[20]
1.3 As already mentioned earlier, the Court of Constitution has established that Section 12 (6) of the Act on Foetal Life and Section 9 (3) of the Decree No. 32/1992. (XII. 23.) NM issued for the execution of the Act were unconstitutional and, therefore, abolished these provision with the effective date of June 30, 2000. Consequent to the abolishment of Section 12 (6) of the Act on Foetal Life, the "serious crisis" defined as a circumstance facilitating abortion by Section 6 (1) d) cannot be constitutionally applied as long as the term "serious crisis" is not defined by law and the legislator does not create the additional provisions that, depending on the definition of the "serious crisis" and its inspection, provide for the constitutional balance between the mother's right to self-determination and the state's obligation to protect the embryo's life.[21] It would be favorable in this respect if the legislator would grant the husband/father the possibility or obligation to participate in passing a decision concerning such issues of wedlock not only with a positive but also with a negative vote. On the other hand, I know that it is not an easy legal task in practice to realize this requirement. However, it could be a guideline that the legislator should try to create the additional legal provisions that could provide for the constitutional balance between the right to self-determination (autonomy) of the mother/wife and the equal rights of the father/husband regarding the joint decision-making if the affairs of the wedlock.
The emphasizing of balance between the spouses should not be interpreted as equal right in respect of abortion. Equal rights in respect of abortion would formally and absurdly mean that a husband could oblige his wife not only for keeping the embryo but also for abortion by reason of the lack of approval. A spouse must not be force to give birth to a child and this method would increase the danger of illegal surgical interventions. I propose that the hearing of the husband be required.
In addition, a change of approach would be needed, namely that every man, living both in and out of wedlock, should and could consider contraception, pregnancy, children and abortion joint issues. This would exclude the possibility for the wife to have abortion without the husband's knowledge and, on the other hand, enable the husband to use this fact later (during the dissolution of the marriage or the emplacement of the child) in the course of taking evidence (e.g. the wife had two abortions during the husband's prolonged foreign study tour although the spouses have not met in this period).
My proposal is supported by the Convention on the Elimination of All Forms of Discrimination against Women: States Parties shall ... ensure, on the basis of equality of men and women, the same rights to decide freely and responsibly the number and spacing of their children and have access to the information, education and means to enable them to exercise these rights.[22]
According to the definition of Tibor Pap, adoption is a legal institute facilitating the establishment of kinship-like relationship between persons that have no ties of blood with each other.[23] Jenő Bacsó emphasizes that the adoption is a legal institute long been existing not only in the Hungarian law but also in most foreign laws that has become, from a contract maintaining the kin and uniting the property in one hand, an effective instrument of the raising and nursing of children.[24] According to the Hungarian Family Law Act, the purpose of adoption is to establish kinship between the adoptive parent, his relatives and the adopted person as well as to provide for the raising in family of minors whose parents are not alive or cannot properly nurse them (Section 46 of the FLA).
The purpose and institutional forms of adoption have gone through various changed during history. The process was not closed by the passing of the 1952 Family Law Act that brought significant and fundamental amendments. For example: it terminated the adoptability of persons of age and the adoption with not overall effect. This latter provision meant that it could no longer be stipulated that parental custody remained with the blood parents and the adoption established only an inheritance relationship between the adoptive parent and the adopted child.
Several amendments have been made to the regulation of adoption (in (1960, 1977, 1986, 1990, 1995 and 1997). The publication of the Convention of the Rights of the Child, New York, November 20, 1989 (published with Act No. LXIV of 1991) was a milestone in this process and that of the Convention on the International Adoption of Children, The Hague, 1993, could also be such a milestone.[25]
The Convention defines the minimum pre-condi-
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tions of international adoption on the one hand and the tasks of the countries of origin and destination in providing such pre-conditions.[26]
The Hungarian Constitution declares that in the Republic of Hungary all children have the right to receive the protection and care of their family, and of the State and society, which is necessary for their satisfactory physical, mental and moral development.[27] By virtue of this provision, it is the fundamental right of the child and the fundamental obligation of the family, the state and the society to provide all children with the protection and care which is necessary for their satisfactory physical, mental and moral development.
2.1 In accordance with the New York Convention providing that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents[28] , it is the primary interest of the child to know and be cared by his or her parents and adoption may take place only if such possibilities are exhausted or non-existent.
The Supreme Court, in Part IV: Emplacement of the Child at a Third Person of its Directive 17 on the Emplacement of the Child, takes mention of that as long as any of the child's parents or his/her environment is capable of nursing the child may not generally be emplaced at a third person if no special circumstances prevail.
I believe that the parent's status could or should be filled in as follows (the mother's status is presumed to be filled in on the basis of the fact of the birth):
2.1.1 in case of blood parent(s),
- the legal basis of the fatherhood is that the child is born from wedlock or the father acknowledges the child together with a marriage concluded consequently [Sections 35 (1) and 39 of the FLA];
- the father of the child born out of wedlock is the man who acknowledges the child with a statement having full effect or the whose fatherhood is established by the final judgment of the court [Sections 37 (1) and 38 (1) of the FLA];
- if the man who participated in a special process for human reproduction together with the mother under the provisions of a separate act (hereinafter: reproduction process) and the child is the result of the reproduction process. [Section 36 d) of the FLA],
- the father's status of the child born out of wedlock is not filled in and a fictitious father is registered in the register of births [Section 41 (1) of the FLA];
2.1.2 in case of adoptive parent(s) (naturally, if the additional conditions foreseen by law are prevailing), if
- the parents (or parent) of the child have con-
sented to the adoption in a statement [Section 48 (2) of the FLA];
- the mother consented to secret adoption in a statement (provided that the father's status is not filled in or the father also consented to the adoption) [Section 48 (3) of the FLA];
- without the consenting statement of the parent(s) (if the parent is staying at an unknown place, or is incapable, or her right of custody was terminated by the court or the court of guardians declared the child adoptable).
2.2 In the following I will address the issue of a special form of secret adoption. The parent may give her consent to the adoption in a way that she is not aware of the person and personal data of the adoptive parent. Such statement can be made prior to the birth of the child. The parent may withdraw her statement until the child turns two month old. The mother must be warned of this. Consequent to the statement, the court of guardians emplaces the child primarily at another person, nursing parent or, should this be impossible, in a children's home or other institution providing day-and-night accommodation. A child who has turned two months old is taken by the court of guardians in permanent custody provided that the child cannot be temporarily emplaced at the prospective adoptive parent and the parent's right of custody ceases.[29]
Secret adoption enables the mother to give birth to an undesired child and the child to be nursed by an adoptive parent or in the family of adoptive parent who love the child. The statement on waiver is usually made a mother giving birth to a child out of wedlock who does not want to or, due to her circumstances, cannot nurse her child. It cannot be excluded, either, that the mother of the child is living in wedlock. If so, the father must also make this statement. (This is the case when the mother of the child is not living in wedlock but the father has acknowledged the fatherhood or the fatherhood has been established by the court prior to making the statement on adoption.)[30]
In my view, family law regulation must represent various interests:
- the interest of the child, his or her constitutional right [Section 67 (1) of the Constitution] for receiving the proper care from his or her family, the state and the society necessary to his or her nursing and the possibility to know and being nursed by his or her parents under Article 7.1 of the New York Convention;
- the possibility of the parent to consent to the adoption of the child in a statement already during her pregnancy which statement may be withdrawn until the child turns two months old; and
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- the father's right regarding his child being declared by the Convention on the Elimination of All Forms of Discrimination against Women under which the States Parties shall ...ensure, on a basis of equality of men and women, ... the same rights and responsibilities as parents in matters relating to their children irrespective of their marital status...[31]
It is the interest of the child to know and being nursed by his or her parents. Naturally, if the same cannot be realized, it is expedient to fill in the parents' status in a very short period of time and to transfer the parents' right of custody to the adoptive parent(s). In my opinion, this means that a certain order must be established in the child's interest where the parents' status must be filled in primarily by the blood-parents of the child. In the event of a secret adoption where the unmarried mother (hereinafter: mother) unilateral "waiver" quasi commences the adoption procedure, the common-law husband or ad hoc partner (the potential father) should be given real chance to become aware of this. Finally, the court of guardians should approve the adoption of the child only thereafter, already being in possession of the required statements and upon the existence of the additional conditions.
According to the law being in force, the mother has the opportunity to make a statement during her pregnancy on consenting to the adoption of her child to be born (the statement becomes effective when the child is born alive). I agree that the child's age of two months is an optimal point in time until when the mother may reconsider or even withdraw her earlier statement. I also agree that it is the interest of the child having turned two months old to have, as soon as possible, a final and successful solution with his or her adoption that can significantly define his or her childhood and adult life.
However, we have in the meantime forgotten about the father. We have forgotten when we give the possibility "exclusively" to the mother on making a statement regarding the adoption of the child (if the father's status is not filled in); we have forgotten when nobody obliged the mother to name the father when making her statement; and also when there is no forum for taking measures to search the father until the child turns two months old; and, finally, when there is nobody who would inform the father on that he, as a blood-parent, or his family could nurse the child instead of adoptive parent(s) by filling in the father's position.
Since there is no legal provision on commencing the settlement of the child's status prior to starting the adoption procedure, the practice of the courts of guardians is not uniform.
The law currently being in force does not unam-
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biguously provide the possibility for the potential father[32] to have the adoption procedure suspended by making a statement on the acknowledgement of fatherhood or by having the fatherhood established by court or even by a concluding a marriage (or by starting any of these procedures) consequent to that the mother has already made her statement on consenting to the adoption of the child after having the physician's report verifying the term of her pregnancy.
I believe that it would serve the interest of the father and the child if in cases like this it was not be the mother's statement only that would emplace the child in a children's home or, in more favorable cases, at nursing parents or capable adoptive parents but the father should be given the opportunity to become aware of the birth of his child and information on his legal possibilities concerning his child.
I believe that only this would provide equal parental rights and obligations for both the father and the mother in respect of the affairs of their children - irrespective of their marital status.
2.4 Finally, concerning the last sentence of the family law rule discussed above providing for that the court of guardians takes the child having turned two months old into permanent nursing if the child cannot be emplaced temporarily at the prospective parents and the mother's child custody ceases, I would consider it more expedient if the parent's right of custody would cease not in the child's age of two months but only upon the entering into force of the decision approving the adoption. There seem to be two reasons for this. One is that the basis of the obligation to provide alimony is kinship since maintaining the child is the obligation also of the parent whose right of parental custody is in intermission (e.g. nursing fee payable for temporary nursing).[33] Accordingly, even if the parent's social situation does not justify not to contribute to the maintenance of the child until his or her adoption then why would this obligation be totally shifted to the state?
The other reason is that by virtue of Section 92 (3) of the FLA, the parent whose right of parental custody has been terminated by the court or whose right of parental custody has ceased under Section 48 (3) of the FLA can, in exceptional cases and in the interest of the child, be also authorized for keeping contact with the child provided that no adoption has taken place yet. If the parent was given the right in respect of his child why would not he be "given" the obligation for maintaining his child? ■
NOTES
[1] Source: Jogi lexikon, Budapest 1999. p. 206.
[2] New York 1948
[3] Article 16 (1)
[4] New York 1966
[5] New York 1979. Article 16: "States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution..."
[6] Section 66 of the Constitution
[7] Weiss E. (co-author): Explanation of the act on family law I. Közgazdasági és Jogi Könyvkiadó, Budapest 1988. p. 25.
[8] Section 6 (1) of the Act LXXIX of 1992 on the Protection of Foetal Life (hereinafter: Act on Foetal Life): "A pregnancy may be aborted until its 12[th] week if
a) it is justified by a reason seriously endangering the health of the pregnant woman;
b) the embryo is likely to suffer from serious deficiency or other impairment as evidenced by a physician;
c) the pregnancy is the result of a crime, or
d) the pregnant woman is in a serious crisis."
[9] By virtue of Section 12 (6): "A serious crisis is which causes physical or mental shock or social impossibility and thereby endangers the healthy growing of the embryo. The existence of such serious crisis of verified by the pregnant woman by signing a form."
[10] Decision No. 48/1998. (IX. 23.) AB of the Court of Constitution
[11] Please note that the Court of Constitution has established that Section 12 (6) of the Act on Foetal Life and Section 9 (3) of the No. 32/1992. (XII. 23.) NM issued for the execution thereof are unconstitutional.
[12] Csiky-Filó: Family Law I. Pécs 2000. p. 276.
[13] Article 25 (2)
[14] Article 24.1
[15] Csiky, O.: Family status (A Manual to Family Law, HVG-Orac, Budapest 2000. p.277.)
[16] Csiky-Filó: Family Law I. Pécs 1999. p. 57.
[17] Section 24 of the FLA: The spouses shall be faithful to and support each other.
[18] Jobbágyi-Heinerné Barzó: Family Law. Miskolc 1997. p. 61-62.
[19] Csiky-Filó: Family Law I. Pécs loc. cit. p. 14
[20] Loc. cit. p. 15
[21] Decision No. 48/1998. (XI. 23.) AB of the Court of Constitution
[22] New York 1979. Article 16 d)
[23] Pap T.: Hungarian Family Law. Tankönyvkiadó, Budapest 1979. p. 255. (rewritten by E. Filó)
[24] Encyclopedia, p. 604.
[25] Weiss E.: Some social and legal questions of adoption. Magyar Tudomány, Budapest 1997/2.
[26] Katonáné Pehr E.: Adoption and adoption procedure. HVG Orac, Budapest 1999. p. 100.
[27] Section 67 (1) of the Constitution
[28] Article 7.1
[29] Somfai: Family Law, Budapest-Pécs 2003. p. 80.
[30] Csiky-Filó: Family Law II. Budapest 2003. p. 207.
[31] Article 16 d)
[32] Family law and adoption law samples. Budapest 1998. p. 190-191. Sample No. 9 on taking the parent's consenting statement under Section 48 (3) of the FLA: "...[The mother] does not wish to name the father of the child named Bernadett Simon (born in Bodrog, on January 25, 1998) born from her common-law relationship.. "
[33] Csiky-Filó: Family Law II. Pécs 2003. p. 239.
Lábjegyzetek:
[1] The Author is a senior lecturer.
Visszaugrás
