In the paper ?Availability of the assisted reproductive technologies in the region of former Yugoslav countries?, author analyzes laws in: Serbia, Montenegro, Macedonia, Croatia and Slovenia. There are two elements with the impact to availability of ART: who the subjects are (spouses, heterosexual partners, same-sex partners, woman without partner) and which procedures are regulated. For instance, surrogate motherhood is regulated only in Macedonia in present time. In addition, author analyzes regulation of the donation of the genetic material (sperm, ova, embryo) and posthumous fertilization in all mentioned countries.
In this paper, the author analyzes family status of the child conceived by artificial reproduction technologies using the following treatments: homologues artificial insemination, heterologus artificial insemination (artificial insemination by donor), ovum donation, embryo donation and surrogate motherhood. One specific situation of homologues artificial insemination is posthumous insemination, insemination after the death of the husband/partner. This procedure is allowed in, for instance, United Kingdom, but not allowed in France, Switzerland, and Italy. Considering genetics elements in this situation there is no doubt on fatherhood - father is a man whose sperm is used for insemination, regardless of the fact if frozen sperm or frozen embryo is used in the procedure. Nevertheless, until 2008 in United Kingdom, the husband/partner was not considered as legal father, because of the fact that the child was born after his death. Heterologous artificial insemination could be used in three different situations. First, when subjects are spouses or unmarried partners of different sexes. Second, when subjects are spouses or unmarried partners of the same sex and the third if a single woman is an only subject. Most recent procedure is the one in which subjects are spouses or unmarried partners of the same sex, specifically two women. This procedure is allowed in the United Kingdom and Sweden. In these legislatures, there is a rule that the woman who delivers the child is legal mother, and her spouse/partner is a second parent of the child. The most recent procedure of egg donation is a donation of only a part of an egg, mitochondrial DNA. In this case, there are in fact three genetic parents of the child: two genetic mothers and a father. Legally, the child has one mother (the woman who delivers a child) and a father. One of potential outcomes of the recent research is the ability to create human embryo without any male genetic contribution - by transferring the nucleus of a somatic cell from one woman into an enucleated egg of another. In that case, the child would not have genetic father at all. Bearing in mind the new artificial reproduction technologies and their influence to legal rules of establishment of the family status of the child, it could be said that the legal principle of the autonomy of the parties is widened in comparison to material truth. People who wish to be parents become legal parents although they are not generic parents. Sometimes they cannot be genetic parents due to their infertility and sometimes because they are of the same sex. As a result of artificial reproduction technologies, a child could have a genetic link with one of the parents, only with a mother - in the heterologous insemination, only a father - as in egg donation and genetic surrogacy. The child could have genetic link with both of the parents - as in the gestational surrogacy, or it could have no genetic links with his/her legal parents - as in embryo donation. According to some European legislatures, it is possible for the child to have a mother and the other female parent, or a father and the other male parent. Surrogate mother, as well as donors of the genetic material, are not considered as parents. Radical change in social and individual perception of parenthood could accept the fact the child could have more than two parents with different roles (biological - genetic parents, gestational mother, social - legal parents).
In Serbia, Biomedically Assisted Fertilization is regulated by the Act on Treatment of Infertility with Biomedically Assisted Fertilization Procedures from 2009, and by the Family Act from 2005, the provisions on the family status of the child. In European context, the principles of the application of biology and medicine are regulated by the Council of Europe Convention from 1997 for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine). In this paper, Serbian law is compared with European law as well as the stands of Christian Orthodox Church which represents the dominant religion in Serbia. Comparison of principles stipulated in the Act and the Convention with the stands of the Christian Orthodox Church shows that domestic law, European law and stands of Christian Orthodox Church are based on similar grounds. It is the protection of human being, human dignity, and application of principle of medical justification. However, there is great difference of opinions when the question of acceptable and allowed procedures is raised. For example, there is an opinion that donor insemination is not in compliance with Christian Orthodox stands. On the contrary, positive law accepts donor insemination, both sperm and egg donations. As regards the surrogate motherhood, this is unacceptable for Orthodox Church and it is still not allowed in Serbia, but de lege ferenda it might be permitted in Serbia, as the Draft of Civil Code proposes that surrogate motherhood should be permitted and regulated by a new law.
Surrogate motherhood is an arrangement in which a woman agrees to carry and deliver a child for another couple who ordered the pregnancy. This procedure is applied today in Great Britain, Holland (although without legal regulations), Israel, Greece, Ukraine, Armenia, Georgia, the USA and Australia, and it is forbidden in France, Austria, Spain, Germany, Switzerland and Slovenia. There are two types of surrogacy, one when the woman gives birth to a child who is genetically her own ("partial", genetic surrogacy), and the other where the surrogate mother only carries and gives birth to a child, whereby the child is genetically from the couple that wanted the child, or the fertilized egg is from a third woman (donor), or the embryo was donated ("full", "total", gestational surrogacy). In these cases two women take part in conception and birth of the child while in the last case there is a third woman who will raise the child. Biologically observed, the woman whose egg has been fertilized may be called the genetic mother, while the woman who carried the pregnancy and gave birth to the child - the gestational carrier. Taking into consideration that the Preliminary Draft of the Serbian Civil Law anticipates the introduction of surrogate motherhood into domestic law, we believe restrictive solutions should first be taken into consideration. This would mean that only full surrogating should be allowed, namely the egg should be from the woman who wants the child and not the surrogate mother. In domestic conditions, genetic surrogation should not be allowed as it leads to confusion in family relations, and kinships still have an important social and legal significance in our country. The surrogate mother should be a woman who has already given birth, because in that way any possible shocks which might arise after birth when the woman who has to handover the child to the intended couple would be avoided. The next condition would be that persons involved in this procedure should have usual residency in Serbia so as to prevent any international complications or problems. As far as compensation is concerned, only compensation of so-called reasonable expenses which the surrogate mother would incur should be allowed. The surrogate contract should be approved by a court judge, who would have the obligation to determine if all legal conditions have been fulfilled for surrogate motherhood, and to explain the contract effects to the contracting parties. Apart from that, psycho-social counselling of all persons involved in the procedure should be anticipated.
Free access to biomedically assisted conception for the couples of less than 40 years of age has been introduced in Serbia recently, while in 2009 the Act on curing infertility by biomedically assisted conception was adopted. In this paper the following issues are discussed: notion of biomedically assisted conception, participants in the process, donors, motherhood and fatherhood, status of spare embryos. The author concludes that even though Serbia is one of the last European countries to adopt the Act on biomedically assisted conception and there was an opportunity to use the experiences of other countries in this field and to adopt an act which would be theoretically meaningful and clear, unfortunately this opportunity was not taken. The author expresses hope that the Act would be changed in a near future, in order to clear the lack of clarity and contradictions and harmonize legal solutions with theoretical legal principles in this field. In this paper the author uses comparative method comparing Serbian legislation and legislation of different European countries. .
In this paper material for a future scientific work is presented. The court cases in parent-child relation from the 1920s and 1930s kept in the Archive of Vojvodina are analyzed. Most cases are maintenance cases, one is a custody case after the parental divorce and one is damage reimbursement from the parent of a minor child who has caused the damage. The maintenance cases are mostly child maintenance claimed from the father of the child, marital or non-marital. In some cases debtor of the maintenance are grandparents of the minor grandchild. In some case the parents claimed mainte?nance from their adult child. As the most important aim of the Project 'Civil Law in Vojvodina' is the significance of the precedent in Civil Law in Vojvodina, the main point of the investigation was to establish which legal sources were used in court practice.
In 2005, Serbia enacted a new Family Act, which is also applied in Vojvodina Regarding family planning, the Family Act has introduced a reform of the provisions on parentage in cases of medically assisted conception. Regarding motherhood, the basic rule is that the mother is considered to be the woman that gave birth to the child, regardless of whether she is the genetic mother or whether the genetic material of another woman has been used. As for fatherhood, the basic rule is that the father is considered to be the husband or cohabiting partner of the mother, if he has given his written consent to artificial insemination. This rule applies both in cases of AIH (artificial insemination with husband/cohabiting partner sperm) and AID (artificial insemination with donor sperm). This paper deals with the issue of surrogate motherhood in European countries, as well. The regulation of the Family Act on parentage in cases of medically assisted conception presupposes the application of certain techniques of medical conception. These are the donation of the egg cell, embryo, AIH and AID. Furthermore, this regulation stipulates that subjects of medically assisted conception can be, besides spouses, heterosexual cohabiting partners. These issues, however, should be addressed by another law that would fully govern the area of medically assisted conception. Unfortunately, in contrast to the majority of European countries, such a law still does not exist in Serbia.
In the jubilee year 2004, Serbia marks the 200th anniversary of The First Serbian Uprising, structuring of modern Serbian state and its legal system comparatively speaking, France marks the 200th anniversary of passing the French Civil Code, one of the most significant civil codifications in the 19th century. It was an occasion to study certain institutions of family law through history and today. The used approach is modern, we studied the ways how the principle of self-determination influenced the family-legal solutions today, and we investigated if one could talk about the effect of this principle in the historical sense, too. The principle of self-determination implies the possibility for the subjects of family-legal relations to arrange their own relations themselves ? both the partner and parent relations. However, this principle undergoes significant limitations in the family law because the family relations are personal relations by character, as well as because of the need to protect the weaker participant, both the weaker partner or a child who needs protection stemming from his/her very status. Within marriage law, the principle of self-determination of the spouses (extramarital partners) is, among other things, made concrete through the possibility for an agreement about the effects of marriage (extramarital union), then through the possibility of agreed divorce, while the procedure of mediation in the marriage litigation contributes to the realization of the mentioned principle. As for the effects of marriage (extramarital union), the paper particularly discusses property relations, that is the marriage property contract, because it is at the moment a current issue in our domestic law. Within the relations between parents and children, the concretization of the principle of self-determination in parental care is significant, particularly in the situations when the relations between the parents were disturbed and resulted in a separation or a divorce with the joint parental care (application of the parental right). All institutions are analyzed in the positive law, in the historical context (solutions from the Serbian Civil Code the former Hungarian Law), and viewed comparatively in the European legal systems of the east and west European countries.
