The flexibility model

Legal parenthood has to remain the fundamental cornerstone of the legal regulation of adult-child relationships but should be more flexible and reflect the changes in family structures. This could mean, for example, that legal parenthood should be easier to challenge and to reallocate. This could also mean that legal parenthood should be open to homosexual couples and/or to more than two persons.

The diversification model

The law should develop existing alternatives or invent new alternatives to legal parenthood in order to reflect changes in families. This could mean, for example, that there should be another/some other legal status available beside legal parenthood such as a status of ’ genitor ‘or’ procreator ‘or’ social parent ’ that would be associated with a predefined range of rights and duties.

The diffraction model

The law should allow for a wide distribution of the specific rights and obligations traditionally associated with parenthood between several adults (parental responsibility, maintenance, contact rights and information, changing of names, inheritance, welfare benefits and tax law). This could mean, for example, that anyone should be allowed to make an application for parental responsibility, maintenance, contact and/or information in relation to a child, independently of any predefined status, and that the decision should depend on a casuistic balance of the (conflicting) interests at stake.

The hybrid model

A combination of a certain level of flexibility, diversification and diffraction is required to reflect the changes that occur in adult-child relationships in our postmodern societies. This would mean that none of the models proposed above is sufficient to react to the rapid evolution of family realities and that two models (at least) should be combined in order to reconstruct the legal regulation of relationships between adults and children.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

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

3. If any kind of ‘anonymous childbirth’ is recognised, what rights does the

natural mother have in respect of the child?

4. In thesamesituation, what are the child's rights in respect of the natural mother (and her other children)?

B. FATHERS

5. Is paternity automatically established by way of a presumption? If yes, does

the presumption only apply within marriage?

6. If paternity is not established by way of a presumption, how can it be established?

7. If legal paternity is established, can it be challenged, in particular by a man who claims to be the biological father?

8. What rights does a biological father who is not the child's legal father have?

9. What are the rights of the child as regards his or her biological father if the latter is not the child's legal father (and as regards his other children)?

C. CONSEQUENCES OF LEGAL PATERNITY AND MATERNITY

10. What rights and obligations exist between legal parents and their child as an automatic consequence of the establishment of legal paternity/ maternity?

11. Do children have rights in relation to their parents’ intestatesuccession?

Do they have a right tosucceed to a reservedshare of their parents’ estate?

If not, are there other mechanisms in place to protect children's interests?

LEGAL RELATIONSHIPS IN THE ENLARGED FAMILY:

GRANDPARENTS AND SIBLINGS

12. Do people other than the father and mother have rights or duties towards children? What kind of rights and duties?

EMERGENCE AND DEVELOPMENT OF ARTIFICIAL

REPRODUCTIVE TECHNOLOGY

A. AUTHORISED TECHNIQUES

13. Are IVF and egg,sperm or embryo donation authorised?

14. Issurrogacy authorised?

INTENDED PARENTS

15. Who has access to ART (artificial insemination and IVF)? What conditions must be fulfilled beforesuch a process can begin?

16. Who is able to accesssurrogacy? What conditions must be fulfilled?

INTRODUCTION

This part of the book aims at exploring how social and emotional ties that have developed between adults and children may be recognised and protected by law within ‘non-traditional’ families, in three different contexts: (1) adoption; (2) step families; and (3) foster families.

In these different contexts, the relationship between adults and children is sometimes protected via an adoption (general adoption, step-child adoption or foster child adoption) with the objective being to establish a parenthood link between the adult and the child. The relationship can also be protected via measures aiming at protecting the socio-emotional link created between the child and the adult by conferring parental responsibilities on the adult, and/or via measures aiming at protecting the child financially, focusing on the intrafamily financial maintenance of the child, and/or by residence rights or contact rights between the child and the adult.

ADOPTION

Adoption is organised in almost all the reviewed jurisdictions but there are variations as to: (1) the available types of adoptions; (2) the requirements for adoption; and (3) the links maintained with the birth family.

Before reviewing and analysing the diversity of the national approaches, it is important to recall the obvious. On the one hand, adoption may be used as an end to create ex-nihilo a relationship between adults and children, where there is no pre-existing link between the adoptive child and the adoptive parent(s) and when the adoption of an orphan child is contemplated by (an) adult(s) as a way of becoming parent(s). In this case the adoption creates a legal relationship as well as a brand new social and emotional link. On the other hand, adoption may be used as a means of recognising and protecting a pre-existing social and emotional relationship, when the adoption of a child is contemplated, for example, by his/her step-parent(s) or foster parent(s). In this case, adoption only establishes a legal link, which consolidates an already existing socio-affective link.

ADOPTION SCHEMES

Amongst the reviewed jurisdictions, different types of adoption are available. Some offer adoption schemes whereby the adoptive child is fully integrated into the adoptive family. Others offer schemes whereby the adoptive child is not fully integrated and the initial parenthood link is maintained.

Tables in this part of the book show how jurisdictions react to legal issues related to adult/child relationships and should, in principle, be understood in the following way:

— Horizontal lines correspond to different aspects of the legal issue the table concerns and vertical columns correspond to reviewed jurisdictions;

— Several columns may be grouped together to indicate that a larger group of jurisdictions share a globally similar approach to the legal issue at stake;

— Some jurisdictions are in italics, indicating that they are a specifi c type of jurisdiction;

— Inside the tables, the shading of the cells indicates two things:

It should be mentioned that some of the tables slightly depart from this model as it will appear from the context or the explanations surrounding them.