THE RIGHT TO ACCESS TO COURT IN PARENTAL PROCEEDINGS FOR CHILDREN OF “UNKNOWN ORIGIN“ IN THE REPUBLIC OF NORTH MACEDONIA

Abstract

The Macedonian Family Law forbids (1) parental proceedings if the parental relationship has been established by adoption (article 75), (2) contestation of fatherhood if the mother has been inseminated by sperm donation following consent by her marital partner (article 71), and (3) establishment of fatherhood if the child has been conceived using artificial insemination (article 62). This is mostly because of the sole relevance of the blood ties for the national Courts, despite the growing importance of the factual family life by the European Court of Human Rights. Nevertheless, these domestic articles infringe the right to a fair trial as stipulated in article 6(1) in conjunction with the right to effective remedy (article 13), and restrict access to examination of the family life of children conceived by gamete donation or adopted (article 8), which in turn is discriminatory on grounds of birth (article 14) of the European Convention on Human Rights (ECHR). The author tackles the national legal (in)consistency with the Convention on the Rights of the Child (CRC), the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights (ECtHR) in the field of recognition and realization of the right to access to identifying information about the genetic origin of adopted children and children conceived by gamete donation as a reason for the breach of their right to access to court in parental proceedings and the right to a fair trial.