Some Statements Concerning the "Right to be Born"

2022

Self Cite

The paper examines the current gender aspects of legislation regulating relations with the family element (mainly from the family legal space), the practice of its application by the courts. The provisions of the legal doctrine, primarily civil and civil procedure, on this issue are summarized and analyzed. Meanwhile, the author intentionally leaves civil law out of the field of research, since civil law norms are specified by family and administrative legislation and are gender neutral. The gender contexts of the institution of marriage (its heterosexual legal attitudes, the legal consequences of sex change in marriage, the problem of same-sex marriage, de facto marriage, gender prohibitions in the divorce procedure), the institute of parenthood (presumption of paternity, the influence of gender stereotypes on the legislation on the establishment of extramarital paternity, the law enforcement presumption of the mother’s preferential right to leave her young child, the rights of fathers, same-sex parenthood and its consequences), the institute of surrogacy (gender differentiation the subject composition of the program participants, controversial administrative and judicial practice in cases of the legal consequences of the use of assisted reproductive technologies). Other gender aspects of Russian family legislation are analyzed (for example, gender neutralization of norms on alimony obligations). In the argumentation of his position on these issues, the author not only relies on the analysis of legal norms, court decisions and provisions of legal doctrine, but also refers to the sociological meanings of gender practices. The author notes that the proposed approaches to the classical and modern gender contexts of family and related legislation indicate the actualization of both the problem as a whole and the need to answer questions on its individual components.

Gender in Law and Family Values: In Search of a Balance

2022

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Age as a Legal Fact in the Family Sphere: Temptations and Conventionality of the Number of Years

2022

The paper examines the meanings of an age as an independent legal fact or an element of a complex legal and factual structure in the family legal sphere. The author states that the legal significance of a person’s age is diverse and ambiguous. At the same time, legislative decisions are based on various factors: conventions of the digital designation of the age report point, respect for national and cultural traditions, including legal ones, considerations about medical and psychological characteristics more or less corresponding to a particular age, subjective preferences or mistakes, purely political (ideological) motives. As a result, the combination of these factors leads to justified or, to varying degrees, unjustified approaches that are extremely approximate in digital terms. The paper criticizes family law provisions concerning regional diversity and regulating the issue of reducing the age of marriage, which does not always reflect the real national and cultural characteristics of the territories and excessively localizes the concept of legal capacity. The author analyzes the differentiation of the child’s age capabilities as a subject of family law, including the context of interaction with relevant decisions in other branches of Russian law (constitutional, municipal, administrative, civil, labor, civil procedure). The absence of a system in this matter is stated. It is proposed to adjust the legislation in terms of systematization of «launch points» of partial legal capacity of minors. The author emphasizes a psychological context of the problem of a legal age for the child. The paper demonstartes other values of age for the family law sphere, namely: invalidity of marriage, alimony obligations, custody and guardianship, adoption (adoption).

Family Values under the Auspices of Law: The New in Tradition and Tradition in the New

2023

The paper analyzes prerequisites for the formation, content, types, methods of ensuring and protecting traditional family values that have been consolidated at the constitutional level with their subsequent implementation in the principles of family legislation, as well as in its key institutions and structures, namely: marriage, family, parenthood, childhood. Within each of them, the author determines gaps, unsettled relations, as well as decisions that do not meet the meaning of the latest constitutional amendments. The paper provides an assessment of typical and atypical doctrinal approaches to the diversity of significant family values, in particular the idea of auxiliary (peripheral) elements, including elements that are located in the «gray zone». Particular attention is paid to the compliance of the normative-legal structure of marriage and the family union related to it (actual marriage), parenthood, and the status of the child. The latter, taking into account the constitutional provision on the need to educate children in respect for elders, explicitly requires the addition of its content with elements of their duty (duties) under family law. It is suggested that there is a need to return to the idea of judicial specialization in family cases based on the actualization of attention to family problems, the state’s attitude to system protection and protection of its interests. The paper examines the problems of implementing the principle of family autonomy, protecting its sovereignty from arbitrary interference, ensuring the possibility of self-regulation, and emphasizes the need to maintain harmony between the independence of the family union and public control (prevention of deviant family development and response to factors and actions that destroy it).