Autonomy versus absolute truth in comparative law on family status of the child

Abstract

The development of biology and medicine enables that legal and biological maternity and paternity coincide completely, owing to biomedical analysis, in particular to DNA analysis. On the other hand, development of biology and medicine causes discrepancy in legal and biological maternity and paternity in the situation of biomedically assisted conception if donor genetic material is used. Thus, autonomy of the parties gain in importance, legal parental relations are based on the will of the parties, so principle of biological truth looses importance. Legal parents would be persons who participated in the process of biomedically assisted conception in order to get the child. Autonomy of the mother could be extended to allow for anonymous birth. Acknowledgement of the paternity depends almost entirely on the will of the parties concerned. If the man acknowledges his paternity and the requisite consent is given, the man is considered to be the father. The biological truth is not examined. On the other hand, in proceedings for establishing and contesting maternity and paternity, the court is obliged to determine the biological truth, which may be based on DNA and other biomedical evidence. It could be said that the autonomy of the parties is limited by the requirement that maternity and paternity in such cases be established based on the biological facts.

Keywords

• autonomy of the parties
• absolute truth
• maternity
• paternity
• establishing
• contesting
• biomedically assisted conception