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Recent Polish Case Law on the Application of the Ordre Public Exception in Case of Transcription (Registration) of Foreign Birth Certificates into the Domestic Register of Civil Status

100%
Wasielewicz A.
Problemy Prawa Prywatnego Międzynarodowego
|
2021
|
vol. 28
163-195
EN
This article is an overview of the recent Polish case law on the application of the ordre public exeption in case of transcription of foreign birth certificates in Poland. In recent times, the ordre public exception was applied to prevent the transcription of birth certificates that indicate same-sex couples as parents of a child and birth certificates of children born by surrogacy. Simultaneously, it was commonly assumed that the transcription is obligatory in order to obtain Polish identity documents. For that reason, the refusal of transcription meant in fact i.a. the inability to obtain Polish identity documents. It caused not only practical complications in everyday life but it was also a serious breach of rights.This article outlines the evolution of the transcription case law in Poland. Initially, the administrative authorities and the courts had been refusing the transcription due to its inconsistency with fundamental principles of the legal order. Subsequently, however, transcription was found admissible on the basis of the principle of the best interests of the child. Due to the divergence in the case law, the issue of transcription was the subject of the resolution of seven judges of the Supreme Administrative Court of 2 December 2019 (ref. no. II OPS 1/19). The resolution states that the transcription is contrary to the fundamental principles of the legal order. However, the resolution also underlines that the fact that a child is a Polish citizen may be confirmed solely by a foreign birth certificate so there is no need for transcription in order to obtain Polish identity documents.
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Mater semper certa est? : kilka uwag o skutkach zagranicznego macierzyństwa zastępczego z perspektywy stosowania klauzuli porządku publicznego

67%
Pilich M.
Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego
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2018
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vol. 16
7-37
EN
The issue of gestational surrogacy is a serious challenge to Polish and foreign law. The present paper deals with the difficult questions of the assumptions, and the scope of application, of the public policy exception in cases before the Polish courts and authorities - especially in the procedure of the transcription of foreign birth certificates and certifying the Polish nationality acquired by a child born of a surrogate mother and genetically related to his or her sociological parents. Numerous inconsistencies of reasoning in Polish case law and the doctrine of international family law rise doubts about the correctness of the application of the 'ordre public' in most cases of recent years.
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