The relationship between parents and the child is a relation defined as the rela-tion of kinship. From such a basic - source - family and legal relarela-tion arise, among oth-ers; the relationship of parental authority, the maintenance relationship, the right to contact the child, the right to surname after parents, as well as many other rights and obligations, the indication of which in this place is not advisable. It should be remem-bered at this point that the sole proof for the existence of paternity and motherhood is the birth certificate of a child in the light of art. 4 of the Law on Civil Status Records.
In other words, until the father or mother is revealed in the child's birth certificate as the child's parent, from the point of view of the law of any rights and obligations of the parents towards the child, and vice versa, there can be no question.
According to the Latin paroemia - mater sepmer certa est. This truth is con-firmed by the regulation of art. 619 of the Family and Guardianship Code - according to which: The mother of the child is the woman who gave birth to it. The legislator could not, however, ignore such situations, when the mother of the child is unknown, or in a birth certificate, there is a woman who is actually not the mother. The practice knows many such cases, among others:
o in situations of abandoned children (in the so-called windows of life or in trashcans, etc.),
o in situations of intentional misleading of the head of a registrar's office, when another woman reported birth and pretended to be a mother (e.g. to circumvent the adoption regulations),
o or in situations of confusing children in the hospital.
In the indicated examples, it is necessary for the Family and Guardianship Code to introduce a regulation concerning, firstly, the establishment of motherhood, and sec-ondly, the denial of motherhood.
The determination of motherhood occurs in two modes;
a) ordinary mode. In the event that the child is actually born and the child's birth certificate is not prepared, motherhood is determined in the ordi-nary mode. It essentially consists in the fact that the head of the registry of-fice draws up the birth certificate after receiving a written notification about the birth of a child issued by a doctor, midwife or a health care unit (art. 40 of the Law on Civil Status Records). As reported by M. Nazar; the necessary condition for preparing the birth certificate in the above way is to show the fact of birth (delivery). It is not enough, therefore, to show kinship, because a woman claiming to be a mother could actually be only a gamete female giver, and the same birth took place by another woman (in the light of art. 619 of the Family and Guardianship Code the child's mother is the woman who gave birth to it).
b) proper mode. It is a case regulated in art. 6110 §1 of the Family and Guardianship Code, according to which:
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o if a birth certificate of the child of unknown parents was established (i.e. with the use of fictitious names and surnames),
o or the motherhood of a woman inscribed (so far) in the birth certificate of a child as his mother has been denied,
it is then possible to demand that the mother be established in court. This will also concern further considerations. The principle is therefore simple, to determine motherhood, one must first deny the motherhood of the woman entered in the birth certificate of the child (if it is entered).
The action for establishing motherhood is performed;
o a child against the mother, and if the mother is dead, against the guardian ap-pointed by the guardianship court (art. 6110 § 2 of the Family and Guardianship Code),
o mother against child (art. 6110 § 3 of the Family and Guardianship Code).
o prosecutor - (if the good of the child requires it or protection of the public in-terest) against the mother of the child, and when she is dead against the proba-tion officer appointed by the court. (art. 6116 of the Family and Guardianship Code and art. 454 of the Civil Procedure Code). By prosecution, the prosecutor indicates as a plaintiff the child for whom the suit is performed.
o deadlines for bringing an action for the determination of motherhood;
o the child is not bound by any dates, (if the child has filed a lawsuit for estab-lishing motherhood during his lifetime, after his death, the descent of his de-scendants' motherhood can be claimed within 6 months from the date of the decision to suspend the motherhood proceedings)
o the mother of the child is connected with the date when the child reaches the age of majority,
o prosecutor - he is not bound by any deadlines, he can also bring an action even after the child's death.
According to the generally accepted view, it is not possible to demand the estab-lishment of motherhood before the birth of a child (art. 619 of the Family and Guardian-ship Code).
Determining motherhood combines the matter of denial of motherhood, which in accordance with art. 6112 §1 of the Family and Guardianship Code follows; If the birth certificate of a child is entered as a mother, a woman who has not given birth to a child (...). In the light of art. 619 of the Family and Guardianship Code it is not permissible to deny maternity of a surrogate mother. The indicated provision clearly states that; The mother of the child is the woman who gave birth to it. In connection with the above, a substitute mother, colloquially referred to as a surrogate, is treated equally with the biological mother when making an entry in the child's birth certificate. The fact that another woman, i.e. the genetic mother gave her female gametes, does not really matter.
In practice, there are occasional surrogate offers for services consisting in receiving an in vitro fertilized ovum of a woman into a female uterus of another woman who can not become pregnant herself or can not report her pregnancy. The role of a surrogate mother
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comes down to reporting pregnancy, childbirth and giving it to parents. Of course, if, according to the "agreement", the substitute mother renounces parental authority over the born child problem basically does not exist and everything takes place "in private"
between the parties. The situation becomes more complicated when a surrogate mother senses a maternal instinct and changes her mind - not willing to give up her child. In this case, the genetic mother can not rely on a previously concluded civil law contract in this regard, because such a contract could be recognized on the grounds of art. 5 of the Civil Code as an abuse of subjective right.
An action for denial of motherhood can be filed by:
o a child against a woman inscribed in the birth certificate as his mother, and when she is dead, this is against a probation officer appointed by the court (art. 6112§2 of the Family and Guardianship Code),
o the biological mother of a child against a woman inscribed in the birth certificate of a child as his mother and against a child, and if that woman is dead - against a child (art. 6112 §3 of the Family and Guardianship Code),
o A woman entered on the birth certificate of a child as his mother against a child (art. 6112 §4 of the Family and Guardianship Code),
o a man entered in the birth certificate as a father, (i.e. the husband of a woman en-tered on the birth certificate as a mother or her partner, who recognized the child or in relation to whom the paternity was judged) against the child and the wom-an, and if she is dead - against the child (art. 6112 §5 of the Family and Guardian-ship Code),
o a prosecutor - (if the child's good or protection of the social interest so requires) against a woman inscribed in the birth certificate as a child's mother and against a man whose paternity was established with regard to motherhood, and if they are not alive, against the court appointed curator (art. 6112 of the Family and Guardianship Code and 454 of the Civil Procedure Code).
o Deadlines for bringing an action for denial of motherhood;
o a child within 3 years of reaching the age of majority (art. 6114 of the Family and Guardianship Code)
o a biological mother of a child or a woman entered on the birth certificate as the mother of a child within 6 months of the date of birth of a child (6113 §1of the Guardianship Code),
o a man entered on the birth certificate of a child within six months from the day on which he learned that a woman enrolled in the child's birth certificate is not the child's mother but no later than the child reaches the age of majority (art.
6113§2 of the Family and Guardianship Code),
o prosecutor - he is not bound by any dates other than the fact that he can not bring an action for denying motherhood after the death of a child (art. 6116 of the Fami-ly and Guardianship Code).
By way of interpretation, it is unacceptable to deny motherhood before the birth of a child.