Ključne reči: anonimni porođaj, prava deteta, prava majke, Sud u Strazburu, Srbija Uvod Od druge polovine 20. veka sve je prisutnija ideja prema kojoj konstrukcija ličnog identiteta nije samo privatno pitanje, intimno i psihološko, već ima i socijalnu dimenziju i obuhvata pravo svakog lica da zna svoje poreklo. Zahtev da se sazna lična prošlost nije samo sredstvo za dobijanje određene koristi, statusa, nasledstva, itd, već se može shvatiti i kao cilj: potpuno poznavanje i izgradnja sopstvene ličnosti. U ovom smislu, nečije pravo da ne bude ograničen u poznavanju svog identiteta počinje time da ne sme biti sprečavan da upozna deo sopstvene prošlosti (Gomar, 2003). 1 Ovim se promovišu značajne zajedničke opšte vrednosti, a ne samo individualni interes. Zahtevi za otkrivanjem porekla, treba istaći, ne uključuju nužno uspostavljanje srodstva, kao pravne veze, što je Katedra za građansko pravo, Pravni fakultet Univerziteta u Kragujevcu (Srbija); email: zponjavic@jura.kg.ac.rs. 1 "Naša istorija nije stvorena od strane pojedinaca rođenih od nepoznatih roditelja i umrlih bez dece", napisao je Renan (Gomar, 2003).
This paper analyses the legal and medical aspects of the work of ethics committees on abortion. According to the legislation of the Republic of Serbia, these committees are competent to determine justifiable terms for abortion after the twentieth week of the fetus. It is well known that abortion is not only a medical but a legal, ethic, social and demographic problem as well. A liberal solution in view of abortion in the first trimester has been accepted in most European countries, as by the legislature of the Republic of Serbia. Since prenatal diagnosis cannot always determine the fetus state with certainty but at times may do so at a later stage, abortion is then required when the child is already capable of extrauterine life. The necessity for performing abortion in the third trimester is thus a result of good knowledge of techno-medicine but also from the limited information it provides. In such situations, the physician needs confirmation and justification of his standpoint with respect to abortion through a legal formulation which should contain "minimum moral". Society has found a way to protect and help him through moral and ethic forms of prevention without anybody?s emotions being affected. Ethics committees should thus help the physician in view of determining the terms for performing late abortion, since the rules of doctor?s ethics are not sufficient in this case. The article especially analyses the work of the Ethics Committee of the Clinical Center in Kragujevac in the period 2000-2010. It is stated that the largest number of cases referred to determined diseases or fetus anomalies while only a negligible number (11.29%) to the illness of the mother. There were no requests for abortions due to legal reasons (pregnancies from criminal offences). A significant number (40.28%) of requests submitted to the Ethics Committee related to pregnancies under the 24th week of pregnancy. Since a pregnancy of 24 weeks represents a boundary line between a miscarriage and preterm birth, the paper proposes a shift in the boundary line of pregnancies which must be terminated according to the Ethics committee, from 20 weeks of gestation to 24 weeks of gestation. At the same time, the requirement for narrowing legal conditions for abortion in later phases of pregnancies is pointed out as well as abolition of legal indications.
In spite of ratified international documents, the protection of persons with mental health problems, intellectual or physical disabilities in the legal system of the Republic of Serbia is still enforced by legal institutes such as deprivation of the legal capacity and a placing of these persons under guardianship. These legal solutions especially does not resolve a question of exercising personal rights that can be done by their holders exclusively in case they are capable of it. Since the guardian is not entitled to enforce them, it emerges that these rights do not exist for persons deprived of legal capacity. This paper endeavors to address an issue on abilities of these persons to make legally binding decisions concerning these rights. Possible solutions to the matter can be found in establishing natural capacity of these persons and through their participation in decision making to the extent that their mental and psychical condition allows. In case that these persons do not have even a minimum of capacity for decision making, the guardian must take a legally binding decision on behalf of a person deprived of legal capacity either on his own or upon the consent of a guardianship authority. Thereby certain criteria have to be taken into account so that the decision is in the best interest of the person represented.
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