Bridging the Gap Between Legal Trends and Natural Foundations in Western Countries

Bridging the Gap Between Legal Trends and Natural Foundations in Western Countries Presented by: Prof. Dr. Aixendri Date: 23 February 2024 Introduction - In the political agendas of many countries the family is no longer the fundamental unit for individual development and social progress. - There is a growing disconnection between Family Law and its natural foundations, which are tied to biology and human nature. - Family law has become a collection of incoherent norms lacking in many cases of a unified foundation and purpose. The Roots Of Family Law - "The family is the specific place for the humanization of the person, through full intersubjective reciprocity between the sexes and between generations, not replaceable by other social forms" (P. Donati). - Family law revolves around two foundational institutions (marriage and filiation), supported by three fundamental principles: • a) Marriage as a stable commitment between a man and a woman. • b) Marriage as an institution oriented towards procreation. • c) Family relationships based on natural and biological bonds.  Adoption relationships, created in the image and likeness of natural filiation to provide a family for the child who does not have one. Main Trends In The Evolution Of Family Law - Horizontal axis: Marriage • Marriage is the founding institution of the family, providing it with stability. • Marriage has progressively lost value in family law through two ways:  The possibility of divorce. From fault-based divorce, there has been a shift towards unilateral no-fault divorce.  b) The equivalence of marriage to any form of cohabitation. • Even though we know that:  Marriage is a much more functional institution than alternative models.  Divorce has detrimental consequences for both children and the spouses themselves, both in personal and financial aspects. - Vertical axis: Filiation • Basic principles  Biological parentage determines legal parentage: paternity testing and legal mechanisms to align legal and biological parentage.  Cases where there was no alignment between biological and legal parentage were considered anomalous.  Adoptive filiation is a creation of the law imitating nature, as a way to provide a family for those who could not obtain one through ordinary means.  The best interest of the child is at the heart of filiation law. This is particularly evident in the case of adoptive filiation, where the judge establishes the legal relationship as a form of child protection. • An important disruption in filiation law: Assisted reproductive techniques • Originally developed to address infertility now evolved into a lucrative industry. • Initially only open to the biological parents. Gradually opened up to donors outside the couple, allowing up to 5 different people to be involved in the generation of a child. • Significant consequences without reflection on their long-term personal and social implications:  a) Denial of the right to know one's biological origin (ECtHR case Odiêvre v. France)  b) Lack of control of suitability of those who will be recognized as legal parents. - Surrogacy: safeguarding human dignity • International surrogacy is now a true industry, clearly governed by the logic of financial contracts. • Exploitation of the gestational mother, contrary to her dignity. • No less offensive to the dignity of the child, who is treated as a commodity assigned in exchange for money. • Movements seeking to legitimize these contracts and others who promote their total international abolition (Casablanca Declaration, March 5th 2023). The Keys Of The New Paradigm - 1. Debiologization of family law: Biological and irreversible bonds are replaced by purely psycho-social bonds, based on will or desire. - 2. Oversized role of individual freedom and desires. - 3. Submission of law to technologies (technocracy): Legislation enacted in various countries has been accommodating to biotechnological possibilities and has merely followed and formalized what reproductive medicine demanded. - 4. Adult-centrism: legislation has been focused on the interests and desires of adults and not in the child's best. - 5. The teleological sense of Family Law has been lost. This is especially clear in filiation. Consequences For Demographics - Statistical data suggest a connection between the evolution of family law regulation and the decline in fertility. - Family instability makes the decision to have children more difficult. - Several studies indicate that many people choose not to have children because they fear repeating the mistakes of their parents. - Young people are increasingly fearful of the future. This lack of confidence prevents them from investing in future endeavors, such as having children - The "glass generation" acknowledge that they do not want to take on responsibilities. They prefer to spend money on traveling rather than raising a child. Realigning Family Law - How to reconstruct family law? How to regain consensus on such a complex issue? - Listening to the voice of nature and escaping the technocratic trap (Roszak, Pope Frances) and the progress trap (O'Leary). - "Ecological culture cannot simply be a set of reactions to immediate environmental issues. We require a distinct perspective, encompassing ways of thinking, policies, educational initiatives, lifestyles, and spirituality, all of which collectively resist the prevailing technocratic paradigm" (Laudato Si' 111). - It is not impossible: health policies for tobacco; responsible consumption… - Reconstruction of family law: prevalence of the best interest of the child; value of biological bonds. - The ecological sensitivity should be carried to its ultimate consequences, as suggested by Pope Francis in Laudato Si': "everything is connected". - Cultural challenge (education, spirituality, styles of life): regain trust in the family as a natural institution which is key to the survival of humanity.