Įvaikinimo teisinio reguliavimo problemos Europos Žmogaus Teisių Teismo jurisprudencijoje

Abstract

The article deals with the most important problems of human rights’ protection in regulating adoptions: the right to adopt, the balance between the interests of biological and adoptive parents, the confidentiality of adoption and due process requirements for adoption. The author suggests that national legislator must pay due attention at State’s responsibilities under various international human rights instruments inter alia European Convention on Human Rights. Consequently case – law of the European Court of Human Rights must be monitored permanently and necessary amendments introduced in national law timely.
The author suggests that adoption creates a link between adopted child and adoptive parents which falls within the concept of „family life“ rather than „private life“ under Art. 8 ECHR. This assumption is of primary importance while dealing with the question of legitimacy of adoption. It also should be used while resolving tensions between biological and social parenthood in case of adoption. To avoid social engineering, the State should start searching for a new family only after demonstrating an absolute incapability or reluctance of natuaral parents to look after child.
The second aspect of adoption revealed in this article – due attention to child’s views and wishes during adoption process, starting from decision to put a child on the list of prospective adoptees’ and finishing at the implementation of decision on adoption. This criteria could be deemed as a serious indicator of State decicions’ compatability with the European Convention on Human Rights.
The article also deals with various aspects of eligibility/suitability to adopt as well as with the question of confidentiality of adoption. The most important decisions of the European Court of Human Rights are revealed and discussed here. The conclusion is drawn, that both questions are generally linked to States’ margin of appreciation as far as the State can demonstrate, that it’s decision is based on the best interest of the child. The author suggests, that the margin of appreciation can be narrowed here as the process of harmonisation of adoption laws is gaining momentum in Europe.