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Problem obywatelstwa dziecka prawdopodobnie pochodzącego od obywatela polskiego niebędącego mężem surrogate mother : uwagi aprobujące wyroki NSA z 6 maja 2015 r. (II OSK 2372/13 oraz II OSK 2419/13)

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Mostowik P.

Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego

2018

vol. 16

55-75

The matter of these remarks are judgments of the Supreme Administrative Court of May 6, 2015, in which decisions on refusal to confirm the Polish citizenship of a child in similar, unusual circumstances, were given. A child who lives in the United States under the care of a couple of men, was born by a woman referred to in foreign law as "surrogate mother". In the performance of the contract this woman - nota bene married - became pregnant, gave birth to a child and gave it to the ordering (intending) party, i.e. a man of Polish citizenship and a second man with a homosexual relationship with him. Polish private law was applicable in this case, because according to the conflict-of-law rules on the origin of a child, the law of the state of citizenships applies. Administrative authorities and courts refused to confirm citizenship. The justification of the judgments indicated that the request did not find support in the collected documents and evidence. The courts and administrative bodies did not have the basic substantive premise to allow a different ruling to be issued. The author presents the position that Polish law in general could allow proving the paternity of the applicant, for which it would be necessary to initiate other domestic procedures confirming that the child comes from the applicant. Since they were not instituted, the authorities or courts in the proceedings in which the judgments were handed down did not have the basic data that would allow a different ruling to be issued. By the way, the author presents a few more general reflections on the current differences between legal systems. States that have legally introduced "surrogate motherhood" operations may not require other (most countries in the world) that the latter automatically recognize their effects of foreign law. Intensive globalization since the beginning of the 21st century also shows the free flow of information about the different legal systems. In the area of family law, differences have recently become diametrical and have a scale unprecedented by thousands of years of law development. No state in the world can expect (and does not expect) that any application of its law will have effects also abroad (i.e. from perspective of anther legal orders abroad). In the circumstance that underlie the decisions and judgments discussed, it would be helpful if American authorities and courts issued an additional document that would abroad accurately describe the woman who gave birth to the child and, moreover, that the particular man is the child's genetic father (what can be of great importance abroad). In the case of submitting such information, the evidence collected in the case would give the Polish authorities and courts a different answer in the discussed proceeding and other proceedings.

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1 Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego

1 2018

1 Mostowik P.

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Problem obywatelstwa dziecka prawdopodobnie pochodzącego od obywatela polskiego niebędącego mężem surrogate mother : uwagi aprobujące wyroki NSA z 6 maja 2015 r. (II OSK 2372/13 oraz II OSK 2419/13)