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7719 results in Intersentia

Page 163 of 386

  • Greece

  • from THE REGULATORY APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 147-164

  • Summary

    GENERAL LEGAL FRAMEWORK

    The right to reproduce is guaranteed in Art. 5 para. 1 of the Greek Constitution, as an expression of the right to free development of one's personality. It covers not only natural but also medically assisted reproduction, both homologous and heterologous, and is further concretised though special legal provisions.

    In 2002 a comprehensive law for medically assisted reproduction was enacted, that introduced a special chapter in the Greek Civil Code setting the conditions for medically assisted reproduction, while it also amended accordingly the rules on maternal and paternal descent. The regulatory framework on medically assisted reproduction was complemented three years later by a subsequent law on specific issues of the application of medically assisted reproduction methods, the donation of genetic material and its cryopreservation as well as on the establishment and operation of medical centres on assisted reproduction. The same law provided also for the foundation of the National Authority of Assisted Reproduction, which is an independent authority, the main responsibilities of which lie on the oversight of the implementation of the legal framework on medically assisted reproduction, the issue of regulations on special issues, as well as the submission of proposals for the amendment of the current provisions. In January 2017 the National Authority of Assisted Reproduction issued a Code of Ethics of medically assisted reproduction that includes a set of detailed binding rules on the applicable procedures.

    The abovementioned legal framework includes explicit rules on surrogacy. Namely, gestational, but not traditional, surrogacy is permitted in Greece under specific conditions set by the law. Although the issue has been undoubtedly contentious, the legislator's decision to opt for the permissibility of surrogacy has been driven by pragmatic considerations: As mentioned in the Explanatory Memorandum of the law, a prohibition of surrogacy could never be enforced entirely. On this assumption, the regulation of surrogacy, rather than its prohibition, was thought to serve the best interests of the children that would be born using this method of assisted reproduction. Notwithstanding remote reactions from the Church, the relevant bill passed from the parliament with large majority.

  • Germany

  • from THE PROHIBITIVE APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 35-48

  • Summary

    GENERAL LEGAL FRAMEWORK

    Germany – to start with the result of this report – was correctly placed by the editors of this volume in the group of legal systems which follow a prohibitive approach towards surrogacy. Most of the questions posed in the questionnaire for the national reports have to be answered in the negative: No, there are no specific legal rules dealing with surrogacy, apart from criminal law provisions which ban surrogacy (see below Section 2.1.). No, there is no authority set up to oversee surrogacy in Germany, except the public prosecutor which will start criminal proceedings if he or she finds out that there has been a case of surrogacy in Germany. And no, there is, as far as I can see, no relevant statistical data on the number of surrogate births in Germany or the number of surrogacy arrangements undertaken by German citizens in another jurisdiction. Interestingly, the official annual criminal statistics of the Federal Ministry of the Interior, which counts with German efficiency all criminal offences committed on German soil, do not specifically mention, at least not in the last years, any violations of the provisions banning surrogacy. It appears that criminalising surrogacy has restrained the medical profession from implementing surrogacy arrangements in Germany. Doctors, of course, face losing their medical licence if found violating the provisions against surrogacy, and surrogacy without medical assistance is rather difficult. The surrogacy hostile attitude of German law can mainly be explained by the fact that the pertinent provisions date back to the beginning of the 1990s and reflect the ethical, scientific and political debates of the 1980s.

    SURROGACY ARRANGEMENTS IN GENERAL

    THE ILLEGALITY OF SURROGACY IN GERMANY

    Therefore, the starting point of a report on the German law of surrogacy has to be criminal law. German criminal law tackles surrogacy not directly but rather indirectly from two different angles, outside general criminal law, by special legislation.

    First and foremost, most reproduction techniques required for a successful surrogacy are forbidden by the provisions of the Embryonenschutzgesetz (‘ESchG’), the German Act for the protection of gametes.

  • Surrogacy in a Globalised World: Comparative Analysis and Thoughts on Regulation

  • from PART III - COMPARATIVE PERSPECTIVES ON SURROGACY
    • By Claire Fenton-Glynn, University of Cambridge, England, United Kingdom, Jens M. Scherpe, University of Cambridge, England, United Kingdom; University of Hong Kong, Hong Kong SAR; University of Aalborg, Denmark
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 515-592

  • Summary

    What was said in the introduction to this volume remains valid, as transpires very clearly from every preceding chapter of this volume: the issues arising out of surrogacy are global ones. As the contributions in this book show, there is a huge disparity in the way different jurisdictions deal (or indeed do not deal) with surrogacy. The aim of this final chapter is to examine the different aspects of regulation present in the 21 Eastern and Western jurisdictions discussed in this volume. Sections 1 to 7 therefore first provide a comparison and overview of the features of the various legal frameworks (or lack thereof), identifying similarities and trends. The concluding Section 8 then undertakes a critical analysis of the current state of the law of surrogacy throughout both Eastern and Western jurisdictions, and in doing so addresses the strengths and weaknesses of the current approaches.

    Given the vastly different social, ethical, political, cultural, traditional and legal views on surrogacy, it would be highly inappropriate (to say the very least) to draft firm recommendations or concrete conclusions on what every jurisdiction ought to do, as this would inevitably be coloured by the authors ‘own views, which by necessity are embedded in their own social and legal cultures. Thus the aim of this chapter is not to prescribe adherence to any one framework, but to point out issues that will inevitably have to be dealt with or addressed, and show how other jurisdictions have done this. That said, the chapter concludes by identifying five key features that must define any legal framework for surrogacy and therefore must be considered by any jurisdiction, irrespective of which approach ultimately is taken.

    GENERAL LEGAL FRAMEWORK

    STRUCTURE OF THE REGIME

    The jurisdictions canvassed in this book can be divided into five main categories: prohibitive; tolerant; regulatory; free market; and regulation by the medical profession. While there will of course be some systems that will blur the boundaries between these categories, they hopefully serve to show the different approaches taken by the legislature (or not taken, as the case may be), and how the vastly differing starting positions may affect the ability of the international community to come to a consensus concerning cross-border surrogacy.

  • France

  • from THE PROHIBITIVE APPROACH
    • By Walter Pintens, Catholic University of Leuven, Belgium; Saarland University, Germany
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 17-34

  • Summary

    GENERAL LEGAL FRAMEWORK

    Surrogacy is forbidden in France without any distinction between altruistic or commercial surrogacy, between traditional or gestational surrogacy or between domestic and international surrogacy. When in the 1980s surrogacy became more popular, the legality of agencies and associations dealing with surrogacy was disputed. In 1988 the Conseild'É tat, the highest administrative court of France, confirmed a decision to deny legal registration of those bodies.

    In the same year the French Supreme Court, the Cour de cassation, ruled that those associations were null and void because their object was illegal and that they had to be dissolved. In 1991 the Cour de cassation, sitting in plenary assembly, ruled in a domestic case that surrogacy agreements, even in noncommercial cases, violated public policy and were void because the human body, and the status of a person, could not be seen as commodities. They are both inviolable and inalienable. Changes in the civil status of a person may derive from events, the operation of law, judgments or administrative decisions but not from private arrangements. Furthermore, surrogacy was seen as an instrument to circumvent the adoption procedure. This case law was integrated in the Bioethics Act of 30 July 1994 and later codified in Art. 16-7 of the Civil Code. This article states that any surrogacy agreement is null and void. Such nullity is a matter of public policy (Art. 16-9 of the Civil Code). Since surrogacy agreements are illegal and contrary to public policy, they are not binding and not enforceable.

    Today, the reasons behind this public policy principle still lie in the inalienability of the human body and the civil status of a person as argued by the Cour de cassation. The prohibition is also justified by ethical concerns. It seeks to avoid the situation that the child is treated as merchandise between infertile couples and surrogates. The prohibition aims also to protect the interest of the child which is seen as psychologically at risk in such transactions. The prohibition is also meant to prevent the exploitation of surrogates, as they are mostly from a lower economic status than the commissioning parents. This approach was until recently supported by a majority of the French population. But a recent poll of December 2017 shows that society is changing.

  • Chapter 5 - Internet Search Engines

  • from PART IV - USE CASES
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 511-552

  • Summary

    INTRODUCTION

    1077. INFORMATION LOCATION TOOLS – Internet search engines facilitate the location and retrieval of information. Specifically, they help their users to find relevant content amidst the abundance of content that is available online. Without these services, locating relevant information on the web would often be a challenge. With the help of search engines, however, information on just about any topic can be retrieved with considerable ease.

    1078. BENEFITS – The societal benefits of internet search engines are tremendous. On a daily basis, people all over the world use search engine services for various activities, such as shopping, research and entertainment. People also use search engines to get in touch with new ideas or to stay abreast of global developments. It is fair to say that search engines play a pivotal role in today's information society. They also promote fundamental values such as freedom of expression and access to information. As observed by the Committee of Ministers of the Council of Europe:

    “Search engines enable a worldwide public to seek, receive and impart information and ideas and other content in particular to acquire knowledge, engage in debate and participate in democratic processes.”

    1079. PRIVACY IMPACT – At the same time, internet search engines have also raised numerous privacy concerns. A distinction can be made between two sets of concerns: those relating to (1) the users of search engine services and those relating to (2) search targets. The first set focuses on the privacy interests of people who use internet search engines. Individuals reveal a lot of information about themselves when searching for information online: about their personal interests, their travel plans, their political beliefs, their sexual preferences, their medical conditions, etc. In fact, the data contained in a search-query log can be far more revealing than the contents of a private email or telephone conversation. The second set of concerns focuses on the privacy interests of “search targets”. Internet search engines have made it relatively easy to find out information about just about anyone. By using a search engine, one can easily aggregate personal data which would otherwise remain dispersed across company websites, newspaper articles, social networking pages, blogs, etc. Internet search engines have, in other words, significantly reduced the transaction costs of compiling a comprehensive profile about a specific person. As a result, people have become increasingly concerned with the information to which search engines refer.

  • Australia

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 75-110

  • Summary

    Australia is a federation. The division of powers set out in the Australian Constitution between the federal government and the state and territory governments is such that the legal relationship between adults and children is partly governed by federal law and partly by state law. Broadly speaking, the federal government has exclusive power in relation to the formation of marriage (and de facto relationships), divorce, parenting disputes and all maintenance obligations, with states retaining all residual jurisdiction (e.g. care and protection matters, adoption, surrogacy, artificial reproduction etc.). Having said that, as this chapter shows, there are complex interactions at times between state and federal law.

    CHANGES IN THE TRADITIONAL FAMILY

    A. MOTHERS

    1. Is maternity automatically established by the birth certificate?

    Leaving aside artificial reproductive situations and adoption (which have their own rules and are discussed at Q. 17 and 32), a woman who gives birth to a child is the legal mother of the child in Australia. This is because parenthood is – legally – dependent solely on biology. Under s 69R of the Family Law Act 1975 (Cth) (FLA) a person named on the birth certificate is presumed to be the parent of the child, so in a sense maternity is legally proved by being named on the birth certificate, because being named as a parent on a birth certificate raises a legal presumption of parenthood. However, this is only a presumption, which means that a person seeking to disprove parenthood of a person on the register bears the legal onus of proof. Thus, the birth certificate is relevant from an evidentiary point of view, though of course is regularly provided as proof of parenthood. Each state has its own birth registration legislation.

    The presumption of parenthood can be rebutted by showing through a DNA test that the woman is not biologically the mother.

    If a woman's name is not on the register, she is still legally the mother if she is the biological mother, but she will need to prove it if questioned.

  • Chapter 1 - Introduction

  • from PART IV - USE CASES
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 343-346

  • Summary

    “A functional theory does not necessarily translate into a successful practice”.

    Jonathan Zittrain

    716. PREFACE – For more than 20 years, the controller-processor model has provided the analytical template for the allocation of responsibility and liability among actors involved in the processing of personal data. While the model itself appears conceptually sound, its application in practice has not always been straightforward. The research objective of this Part of the book is to identify the main issues that surround the practical application of the controller-processor model. To this end, a number of real-life use cases will be examined.

    717. SELECTION CRITERIA – Needless to say, it is impossible to document and analyse every possible use case. A selection needs to be made. In social science research, case selection is generally driven by two objectives, namely (1) representativeness (i.e. ensuring that the selected cases are sufficiently representative in light of the research question) and (2) variety (i.e. ensuring useful variation on the dimensions of theoretical interest). A third, sometimes implicit, objective is relevancy (i.e. ensuring that the selected use cases are likely to yield insights which can assist in answering the research question).

    718. RELEVANCY – As the research objective of this Part of the book is to document the issues that arise when applying the controller-processor model in practice, the pool of potentially relevant use cases is limited to instances in which such issues occur. In the first phase of selection, a preliminary literature study was undertaken to identify eligible use cases. The threshold for eligibility was the existence of some indication, either in regulatory guidance or doctrine, that the use case in question challenges either the application of the controller and processor concepts or the associated allocation of responsibility and liability. Each of the retained use cases has been cited by scholars and/or regulators as instances where the application of the controller-processor concepts can be challenging, or where the effective allocation of responsibilities and liability may be undermined.

    719. VARIETY – Once the initial screening for relevancy was completed, a further selection was made with the aim of ensuring a sufficient degree of variety. In practice, the control capabilities of actors involved in the processing of personal data are shaped by the social context in which they operate (e.g. public sector, business-to-business, business-to-consumer, consumer-to-consumer).

  • International Human Rights Law as a Basis for Reconstructing Legal Relationships between Adults and Children

  • from PART III - INTERNATIONAL LAW INSIGHTS
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 675-706

  • Summary

    INTRODUCTION

    The impact of international human rights law (hereafter IHRL) on family law in general and on legal relationships between adults and children in particular cannot be underestimated. Indeed, a wide range of IHRL instruments contribute directly or indirectly to the constant reshaping of the legal regulation of family and relationships between its members. The concept of family is a relative one and accordingly the meaning and significance of the notion of family life is dealt with differently under each protection system. After an overview of the relevant instruments (section 1), this contribution aims at broadly describing how IHRL may influence legal relationships between adults and children in the context of traditional families (section 2), ART families (section 3) and families based on social and emotional ties (section 4).

    OVERVIEW OF THE RELEVANT INSTRUMENTS

    UNIVERSAL INSTRUMENTS

    The most relevant human rights instruments enshrining universal standards for legal relationships between adults and children have been elaborated in the framework of the United Nations.

    The 1948 Universal Declaration of Human Rights set out the principle that ‘family is the natural and fundamental group unit of society and is entitled to protection by society and the State‘. Privacy and family are expressly protected by article 12, whereas articles 25 and 26 directly address the children's right to an adequate standard of living and to education.

    In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both reaffirmed family as the ‘natural and fundamental group unit of society‘. Article 24 of the ICCPR provides children with the general right to ‘such measures of protection as are required by his status as a minor’ and, more specifically, with the right to ‘be registered immediately after birth’ and to have a name as well as a nationality. Article 10 of the ICESCR provides – for its part – 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‘.

Adults and Children in Postmodern Societies
  • A Comparative Law and Multidisciplinary Handbook
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019
  • Adults and Children in Postmodern Societies provides a critical analysis of the different ways in which the law can recognise and protect relationships between adults and children in postmodern societies which are characterised by increasingly diverse family configurations. The book focuses of six fundamental questions:- How does the law deal with the changes occurring in what is still referred to as the 'traditional' family, such as for example anonymous childbirth, paternity disputes, shared custody?- How does the law recognise and protect families conceived with help of assisted reproduction techniques, such as IVF, surrogacy, anonymous or non-anonymous gamete donation?- How does the law recognise and protect families bound by de facto social or emotional ties, particularly in context of step-parents and step-children or foster families?- Which relationships between adults and children should be recognised and protected by law? Should there be restrictions based on couple status, gender or number?- If relationships between adults and children should be protected, which legal tools should be used: legal rules, judicial discretion or contractual freedom?- Which common analytical framework could be used to understand - and face - the legal challenges raised by the transformations of family relationships? These questions are addressed in-depth by an international team of distinguished family law experts of 19 different jurisdictions (Algeria, Argentina, Australia, Belgium, Canada, Democratic Republic of the Congo, England and Wales, France, Germany, Ireland, Italy, Japan, Lithuania, the Netherlands, Romania, Spain, Switzerland, Sweden and the USA), covering the current state of affairs, foreseeable legal developments and thought-provoking reflections. The legal perspective of the national reports is complemented by interdisciplinary perspectives from experts in history, anthropology, psychology and philosophy, making this book a unique and essential source for anyone working in the field. About the editors Jehanne Sosson is a family law expert. She is a professor at the Université catholique de Louvain, a lecturer at the Université Saint-Louis Bruxelles and the Université Paris II Panthéon-Assas and a lawyer at the Brussels Bar. Geoffrey Willems is a professor at the Université catholique de Louvain. His research focuses on interactions between human rights law and family law and privatisation of family law in an international, comparative and interdisciplinary perspective. Gwendoline Motte is a teaching and research assistant at the Université catholique de Louvain. She specialises in family law with a special interest in European and comparative family law. She is also an independent family mediator.

  • Belgium

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 111-148

  • Summary

    CHANGES IN THE TRADITIONAL FAMILY

    A. MOTHERS

    1. Is maternity automatically established by the birth certificate?

    In Belgian law, maternity is established in three different ways that are hierarchically ordered. According to the Act of 31 March 1987, maternity is first of all, and almost always, established by the birth certificate (art. 312, § Belgian Civil Code, hereafter: BCC). The woman whose name is mandatorily mentioned on the birth certificate is assumed to have given birth to the child, and therefore is legally considered to be the child's mother (art. 57, 2 ° 1 and 312, § 1 BCC).

    Secondly, in cases when the mother's name is not mentioned on the birth certificate and/or when the birth certificate is lost, a woman can still establish her maternity on the grounds of legal recognition of the child (art. 313, § 1 BCC).

    Thirdly, if there is still no maternity established, it can be established by a judicial decision which states that the woman gave birth to the child in question (art. 314(1) BCC) (for the procedure see Q. 6).

    2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

    Anonymous childbirth is prohibited in Belgium as a consequence of the mandatory mentioning of the mother's name on the birth certificate (see Q. 1).

    3. If any kind of ‘anonymous childbirth’ is recognised, what rights does the natural mother have in respect of the child?

    We consider this question outside the scope of the Act on medically assisted reproduction and the disposition of supernumerary embryos and gametes of 6 July 2007 (MAP Act) (see Q. 13 and further). In exceptional situations where the name of the mother is not on the birth certificate (foundlings), the biological mother can recognise the child or start a judicial procedure (see Q. 1). She can also exercise a right of personal contact (art. 375 bis BCC). In cases when an agreement cannot be reached with the persons who take care of the child, the natural mother can submit a request to the family court.

  • Private International Law as a Basis for Reconstructing Legal Relationships between Adults and Children: Four Illustrations

  • from PART III - INTERNATIONAL LAW INSIGHTS
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 707-722

  • Summary

    INTRODUCTION

    Private international law is that field of the law that regulates the interaction between the private law systems of different States. It is an often forgotten field of law, also in comparative law projects.

    In the area of family law the European Union (EU) legislator has been very active over the past 15 years. Many aspects of private international law have been unified. There is EU legislation on divorce, parental responsibility, maintenance, matrimonial property, and the property consequences of registered partnerships. On the international level, the Hague Conference on Private International Law has concluded conventions on child protection (including parental responsibility), the civil aspects of international child abduction, inter-country adoption and maintenance.

    The area of the establishment of parenthood is still governed by national private international law rules. As is clear from the national reports in this volume, the rules of substantive law are diverse. Where substantive laws are diverse, it is difficult to agree on common private international rules. Even in the fields where the EU has legislated, the most recent efforts did not result in common private international law instruments throughout the EU, but only in instruments of enhanced cooperation. This is the case for divorce (applicable law), matrimonial property and the property consequences of registered partnerships. The EU has not yet endeavoured to take initiative in the field of parenthood. The International Commission on Civil Status has in the past tackled this issue, but their Conventions deal mainly with children born out of wedlock. They are old and have not been broadly ratified. They do not establish common private international rules, but oblige Contracting States to recognise certain aspects of parenthood from abroad. Since 2015, the Hague Conference on Private International Law has been working on a project on parentage and surrogacy. The work is currently done by an Expert Group and it is as yet unknown what the outcome will be.

  • England and Wales

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 219-248

  • Summary

    This contribution considers the legal framework in England and Wales applicable to the creation, regulation and extinguishment of parenthood. The relevant law applied in other jurisdictions within the United Kingdom, namely Northern Ireland and Scotland, is outside its remit.

    Judges in England and Wales possess a considerable amount of discretion when determining disputes governing children. Foundational principles in the Children Act 1989 and the Adoption and Children Act 2002, such as the welfare principle and parental responsibility, confer a considerable degree of flexibility on the judiciary. However, in relation to the earlier question of the determination of legal parenthood, the rules applicable are predominately statutory, formulaic and designed to provide certainty.

    CHANGES IN THE TRADITIONAL FAMILY

    A. MOTHERS

    1. Is maternity automatically established by the birth certificate?

    As a preliminary point, a key distinction needs to be drawn between parentage (based on the supply of biological material), parenthood (based on who the law deems to be the legal parent) and parental responsibility (based on who possesses the enabling rights and responsibilities in relation to a child).

    Leaving aside developments in the context of in vitro fertilisation and artificial insemination, the foundational principle in English law is that maternity attaches to the woman that gives birth to the child. This historically worked well but now is put under considerable pressure following the advent of new reproductive technologies. Thus, as noted in The Ampthill Peerage case: ‘[m]otherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition’ or mater est quam gestation demonstrant. Proving maternity is rarely an issue.

    Technically, maternity is established as a fact but, under section 2 of the Births and Deaths Registration Act 1953, a mother has an obligation to register the birth of the child within 42 days which provides documented evidence of maternity. Failure to register a birth within that period of time is subject to a fine.

    2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

    Anonymous childbirth is prohibited in England and Wales.

  • Chapter 5 - Conclusion

  • from PART V - RECOMMENDATIONS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 651-654

  • Summary

    1368. MAIN RESEARCH QUESTION – The distinction between controllers and processors is central to EU data protection law. Unfortunately, certain technological and social developments have rendered it increasingly difficult to apply this model in practice, thereby leading to legal uncertainty. The main research question this book set out to answer is whether the allocation of responsibility and liability among actors involved in the processing of personal data could be revised in a manner which increases legal certainty while maintaining at least an equivalent level of data protection. In order to answer this question, four sub-questions helped guide the research, namely:

  • What is the nature and role of the controller and processor concepts under European data protection law?

  • What is the origin of the controller-processor model and how has it evolved over time?

  • What are the types of issues that arise when applying the controllerprocessor model in practice?

  • Which solutions have been proposed to address the issues that arise in practice and to what extent are they capable of addressing the issues?

    • 1369. NATURE AND ROLE OF CONCEPTS – The concept of a controller is a functional concept: it enumerates a set of criteria with a view of allocating responsibilities upon those actors who exercise significant factual influence over the processing. The processor concept likewise serves to allocate responsibility, but is dependent primarily on a decision of a controller to enlist a separate actor to process personal data on its behalf. The primary role of both the controller and processor concepts is to allocate responsibility. In addition, both the controller and processor concepts play an important role in the determination of which law(s) applies (apply) to the processing, and in the determination of what is required in order to comply with certain substantive provisions of European data protection law.

    1370. ORIGIN AND DEVELOPMENT – Before the term “controller” became a term of art, those responsible for ensuring compliance with data protection laws went by many names. Despite notable differences in terminology, two recurring elements can be distinguished. The first element is the element of mastery: the actor designated as being responsible for compliance had the ability to exercise power over the processing, in one form or another.

  • Chapter 4 - Allocation of Responsibility

  • from PART II - STATE OF THE ART
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 47-82

  • Summary

    69. OUTLINE – EU data protection law assigns primary responsibility for compliance with its provisions to the controller(s) of the processing. It also assigns responsibility to the processor(s), as a means to address the situation where a controller enlists another actor to process personal data on its behalf. Given the central importance of these concepts to the research question of this book, it is necessary to analyse the meaning of these concepts in some detail. The following subsections will analyse

  • the key elements of the controller and processor concepts;

  • the legal relationship between controllers and processors; and

  • the legal relationship between joint controllers.

    • KEY ELEMENTS OF THE “CONTROLLER” AND “PROCESSOR” CONCEPTS

    70. PRELIMINARY REMARKS – With the adoption of Directive 95/46, the key principles for allocating responsibility and liability among controllers and processors were established. How these principles were to be applied in practice would be determined by a steadily growing body of materials (opinions, recommendations, enforcement actions) developed by national data protection authorities. For quite some time, only limited EU-wide guidance existed on how to apply the concepts of “controller” and “processor” practice. While the Article 29 Working Party was called upon to interpret these concepts in relation to specific cases, the resulting guidance was generally closely tied to the specific issue at hand.

    71. OPINION 1/2010 – In 2010, the Article 29 Working Party published an Opinion on the concepts of “controller” and “processor”. The main motivation for the Opinion was a desire to promote a consistent and harmonized approach in the interpretation of these concepts among the Member States. Opinion 1/2010 of the Article 29 Working Party represents the most comprehensive attempt to clarify the meaning of the “controller” and “processor” concepts to date. Given the authority enjoyed by WP29 opinions, as well as their strategic importance, Opinion 1/2010 will serve as the main source of reference when analysing the key elements of the controller and processor concepts over the following sections.

    72. CJEU CASE LAW – Since the adoption Opinion 1/2010, the CJEU has been called upon to clarify to interpret the concepts of controller, joint controller and processor in a number of cases. The most important of those cases are Google Spain, Wirtschaft sakademie (or “Fan pages”), Jehovah's witnesses and Fashion ID. Where relevant, reference shall also be made to those judgments of the CJEU and the accompanying AG Opinions.

  • Chapter 3 - Basic Protections

  • from PART II - STATE OF THE ART
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 33-46

  • Summary

    47. OUTLINE – EU data protection law seeks to protect individuals with regard to the processing of their personal data by (1) requiring compliance with a number of key principles; (2) providing individuals with a right to information as well as other data subject rights; (3) imposing an obligation to ensure the confidentiality and security of processing; (4) requiring the establishment, at national level, of supervisory authorities dedicated to monitoring compliance with the substantive provisions of EU data protection law; and (5) requiring controllers to able to demonstrate compliance with these principles.

    KEY PRINCIPLES

    48. LAWFULNESS, FAIRNESS & TRANSPARENCY – Article 5(1)a of the GDPR provides that personal data must be processed “lawfully, fairly and in a transparent manner”. Fairness of processing is considered an overarching principle of data protection law. It is a generic principle which has provided the foundation for other data protection requirements. As such, the fairness principle provides a “lens” through which the other provisions in the Directive should be interpreted. The principle of lawfulness of processing reaffirms that data controllers must stay in line with other legal obligations, even outside of the GDPR, regardless of whether these obligations are general, specific, statutory or contractual. The principle of transparency is in many ways a logical extension of the requirement that personal data shall be processed “fairly and lawfully”. It is based on the idea that even if one doesn't have a say in the matter, an individual should generally at least be informed when his personal data are being processed and/or be in a position to acquire additional information. The transparency principle is given further substance within the context of the data subject's right to information and right of access.

    49. FINALITY – Article 5(1)b of the GDPR dictates that personal data must be “collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes.” This provision embodies the so-called “principle of finality”, which comprises two basic rules. First, it requires controllers to clearly articulate the purposes for which personal data are being collected (purpose specification). Second, it requires controllers to limit their subsequent use of this information to practices compatible with the purposes defined at the moment of collection (use limitation).

  • Chapter 2 - Problem Statement

  • from PART I - INTRODUCTION
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 7-12

  • Summary

    7. OUTLINE – Given the fundamental importance of both the controller and processor concepts, it is essential to be able to determine which role an actor has assumed towards a particular processing operation. Unfortunately, it can be quite difficult to apply the distinction between controller and processors in practice. Over time, data protection authorities and courts have provided guidance to inform the practical application of the controller and processor concepts. Notwithstanding the guidance, however, certain scholars have continued to question the utility of the controller-processor model. The following sections outline three perceived vulnerabilities of the current framework.

    A BROKEN “BINARY”

    8. OVERSIMPLIFICATION? – Perhaps the most common critique of the controller-processor model is that the “binary” distinction between controllers and processors is too simplistic. While the model may be readily applied in certain situations, the complexity of today's processing operations is such that a clear-cut distinction between controllers and processors is seldom possible. As a result, the binary distinction is considered inadequate to accommodate the increasingly collaborative manner in which businesses operate. Nowadays, control relationships are more complex than the “either/or” approach of the controller-processor model; whereby one party (or group of parties) exercises complete control over the processing, and another party (or group of parties) simply executes the tasks it has been given, without exercising any substantial influence as to either the purposes or means of the processing.

    9. EVOLVING PROCESSING PRACTICES – At the time Directive 95/46 was adopted, the distinction between parties who control the processing of personal data (data controllers) and those who simply process the data on behalf of someone else (data processors) was considered to be relatively clear. Today we are confronted with a “growing tendency towards organisational differentiation”. In both the public and private sector

    “there is a growing emphasis on the development of delivery chains or service delivery across organisations and on the use of subcontracting or outsourcing of services in order to benefit from specialisation and possible economies of scale. As a result, there is a growth in various services, offered by service providers, who do not always consider themselves responsible or accountable […].”

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