One of significant legal innovations brought by the new domestic Law on Medically Assisted Reproduction involves widening the concept of reproductive autonomy in case of single woman as a user of medically assisted reproduction services. Thus, the new Serbian legislation in this field adopts quite liberal approach which largely relieves single woman to engage in medically assisted reproduction procedure. Firstly, the right of a single woman to access the medically assisted reproduction is not formulated as an exemption from the rule that such right belongs primarily to marriage couples and cohabitants. In this way, medically assisted reproduction is permitted under same conditions to single woman as for the spouses and cohabitants. Even more, new Serbian legislation in this field has abolished the principle of medically necessity in case of a single woman as a user of medically assisted reproduction. Thus, she has been given even bigger reproductive autonomy in domain of medically assisted reproduction comparing to those of marriage couples or cohabitants. Such unchecked and overwhelming reproductive autonomy significantly impairs the balance among the interests of participants in medically assisted reproduction procedures endangering the public interests, as well as the best interests of the prospective child.
In the context of current aspirations in terms of drafting and adopting a regulation that would finally legalize same-sex unions in Serbia, particularly important issue relates to the effect of same-sex union on the legal position of a child in such unity. The recently published text of the Draft Law on Same-Sex Unions undoubtedly opens the space for considering certain solutions related to the rights and obligations of a same-sex partner of a parent of the child, which is of direct importance in terms of exercising rights of the child in family relations. Based on these provisions, the authors seek to analyze legal possibilities and restrictions regarding the regulation of parental duties and rights of the child in the context of same-sex unions in Serbia. In these efforts, the authors commence from the relevant legal framework that regulates family relations, and thereby indicate some possible solutions.
The right of the child to freedom of religion belongs to a group of child's participation rights that is of exceptional importance both in terms of child's development and in the context of the identity of a child. However, this right has less legal and practical scope than other child's participation rights. The basic reason for limited range of the child's right to freedom of religion is that the mentioned right is primarily exercised within the legal space in which parents exercise the right to raise and provide education to a child. Simultaneously, the right of the child to freedom of religion has external limitations set by the rights and interests of third parties, as well as the interests of wider social environment. The child's right to freedom of religion comprises two distinctive elements which may be referred as internal and external element of the right. Thus, the internal element of the right includes freedom to have or to adopt a religion or belief of his/her choice. On the other hand, the external component of this right involves freedom to manifest his/her religion or belief in worship, observance, practice and teaching. The United Nations Convention on the Rights of the Child explicitly recognises only external element of the child's right to freedom of religion. That is why the content of this right should be primarily determined in the line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol No. 1 to this Convention and International Covenant on Civil and Political Rights that offer more complete approach to the right to freedom of religion. Generally, The UN Committee on the Rights of the Child is more reluctant to suggest stronger application of the child's right to freedom of religion at the expense of parental responsibility comparing to cases when other participation rights of a child are at stake. To be more precisely, the closer determination of this right is left to national legislations. Therefore, three different approaches to the scope of a child's rights to freedom of religion may be distinguished in terms of national laws. The first approach may be designated as paternalistic one since the child's right to freedom of religion is primarily subordinated to parental rights to raise and provide education to a child. Unlike this approach, dogmatic standpoint implies the existence of official and dominant religion where parents are obliged to raise their child in accordance with religious rules. From the child rights-based aspect, the most adequate standpoint is to adopt participatory approach where the child of certain age is empowered to fully exercise the right to freedom of religion. Concerning parental rights to provide religious education to their children, it is important to consider case law of the European Court of Human Rights in respect to state interference with the one's right to manifest his/her religion or belief. It may be concluded that a state does not have a duty to provide educational program that will correspond to each and every parent's desire.
Since the beginning of October 2017, Serbia has faced with measles virus infection outbreak which proved once more the necessity of children compulsory immunisation against that highly infectious disease. Serbia adopted law on mandatory vaccination against measles for all children of certain age, as well as measures of recommended passive immunisation of the individual child in case of measles clinical indications. Rules on compulsory active immunisation for children against measles are in accordance with the public health interests and the child's right to life, survival and development. Simultaneously, children mandatory vaccination amounts to an interference with the child's right to private life, but such interference pursues legitimate aim in terms of the European Convention on Human Rights and case law of the Strasbourg Court. Furthermore, the interference is also justified from the aspects of parent's right to family life since it is necessary for protection of public health interests and rights and freedoms of others, which was also affirmed by the decision of the Constitutional Court of Serbia. Regarding the recommended passive immunisation of a child, parental consent to this medical treatment should be considered as making decision on issues that seriously affect the life of a child in terms of family legislation. That is why it is necessary to have explicit consent of both parents to their child passive immunisation in cases when a child is under the age of 15, or in situations when a child who reached this age having sufficient mental capacity did not consent to medical treatment of passive immunisation.
Parental consent on undertaking the child's major medical treatments constitutes the issues that significantly affect the life of the child. In that sense, undergoing such medical treatments demands explicit and written consent of both parents, encompassing even the cases of sole exercise of parental responsibility in domestic legislation. Firstly, the author tries to define the concept of major medical treatments taking into account rules of the Law on the Rights of Patients. It has been found that this concept involves exceptional diagnostic and therapeutic invasive medical measures that may have significant effect on the child' right to life, survival and development. Furthermore, special attention is paid to the child's autonomy enforcement in the context of parental consent to the child's major medical treatments. It has been shown that applying the principle of the best interests of the patient in the domain of medical service provision requires bigger involvement of paternalistic elements reducing even the autonomy of the competent child. Finally, this paper suggests legal mechanisms that can be used for overcoming the problems of parental disagreement on undertaking child's major medical treatments. These mechanisms differ in their compliance to the concept of urgent medical measures
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