Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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Cues tio nes Po lí ti cas
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co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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OIRALITH
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Vol. 39, Nº 68 (Enero - Junio) 2021, 767-776
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/08/2020 Aceptado el 21/12/2020
Legal Regulation of Relations on the
Establishment of the Origin of Children in
the Russian Federation
DOI: https://doi.org/10.46398/cuestpol.3968.49
Leisan Nasovna Khasimova *
Alexey Olegovich Zadvornov **
Abstract
The birth of a person is one of the unforgettable events in the
life of each family, full of vivid emotions. From this moment on,
parents assume new roles, containing moral and legal obligations
in relation to the newborn. In this case, it is not important if the
child’s parents are legal or really married. Based on the analysis
of the current family legislation of the Russian Federation and
the theoretical provisions devoted to the legal regulation of the
establishment of the origin of children, the article examines the mechanism
of the emergence of parental legal relations, as well as a set of problems
associated with their evaluation, interpretation, and application. The
problems of legal regulation in the eld of determining the origin of
children, the prospects for the development of legislation in this area of
relationships, are identied. The general methodological basis was formed
by the scientic method, which allowed to consider the problems of the
development of family legislation in the legal regulation to establish the
origin of children in the Russian Federation. The article presents the
opinions of the authors and analyses the theoretical research of scientists
in this area
Keywords: kinship; rights of the child; establishment of the origin of
children; birth registration; Russian federation.
* Leisan Nasovna Khasimova, Kazan Federal University. ORCID ID: https://orcid.org/0000-0002-
1538-1788. Email: hasimov_l@mail.ru
** Alexey Olegovich Zadvornov, Kazan Federal University. ORCID ID: https://orcid.org/0000-0002-
7829-1667. Email: a.zadvornov11@ya.ru
768
Leisan Nasovna Khasimova y Alexey Olegovich Zadvornov
Legal Regulation of Relations on the Establishment of the Origin of Children in the Russian
Federation
Reglamento jurídico de las relaciones sobre el
establecimiento del origen de los niños en la Federación
de Rusia
Resumen
El nacimiento de una persona es uno de los eventos inolvidables en la
vida de cada familia, lleno de vívidas emociones. A partir de este momento,
los padres asumen nuevas funciones, conteniendo obligaciones morales y
legales en relación con el recién nacido. En este caso, no es importante si los
padres del niño están legal o realmente casados. Basado en el análisis de la
legislación familiar actual de la Federación de Rusia y en las disposiciones
teóricas dedicadas a la regulación legal del establecimiento del origen de
los niños, el artículo examina el mecanismo del surgimiento de relaciones
legales parentales, así como un conjunto de problemas asociados con su
evaluación, interpretación y aplicación. Se identican los problemas de la
regulación jurídica en el campo de la determinación del origen de los niños,
las perspectivas de desarrollo de la legislación en este ámbito de relaciones.
La base metodológica general se formó mediante el método cientíco, que
permitió considerar los problemas del desarrollo de la legislación familiar
en la regulación legal para establecer el origen de los niños en la Federación
de Rusia. El artículo presenta las opiniones de los autores y analiza la
investigación teórica de los cientícos en esta área.
Palabras clave: parentesco; derechos del niño; establecimiento del
origen de los niños; registro de nacimiento; federación
rusa.
Introduction
Establishing the origin of a child is a law-forming legal fact that gives rise
to the child’s personal and property rights and forms his/her legal status.
It is known that a child’s personality develops and improves best in a two-
parent family. Family is the rst and main stage of human socialization.
The family is one of the main objects of study of various sciences, including
legal one. However, at the legislative level, the concept of a family has not
yet been developed.
In accordance with the current domestic legislation, the mutual rights
and obligations of parents and children are based on the origin of children,
certied in accordance with the legally established procedure, on the basis
of the genetic (biological) relationship between a particular child and his/
her parents. We see the legal signicance of the certicate of the child’s
origin in the fact that it acts as a legal guarantee of the protection of the
rights of both the child himself and the rights of his parents, since parental
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Vol. 39 Nº 68 (Enero - Junio 2021): 767-776
legal relations between the child and his biological parents arise at the time
of state registration of the establishment of the child’s origin. Accordingly,
parents can begin to fulll their duties as legal representatives of the child
only after formalizing their relationship with the child in the manner
prescribed by law.
1. Materials and Methods
According to the Civil Registry Ofce of the Cabinet of Ministers of the
Republic of Tatarstan, at the end of 2017, 48,596 newborns were registered
in the Republic of Tatarstan. In Naberezhnye Chelny, the number of birth
certicates was 7377, which is three times less than in Kazan, with 21,888
registered. This situation is explained, in our opinion, by a direct connection
with the birth rate in the country as a whole in the 90s of the XX century,
since today children born at that time become parents. In 2017, the number
of registered births was less than in 2016, however, in general, over the past
10 years, the number of registered births in the capital of Tatarstan has
grown by 42% (Statistical reporting on state registration of vital records in
the Republic of Tatarstan at the end of 2017, 2018).
According to the data from the same source, for 2018 the civil registry
authorities (hereinafter referred to as the registry ofce) of the Republic
of Tatarstan registered 46,793 birth certicates, which is 1,803 less than
in 2017 (Statistical reporting on state registration of vital records in the
Republic of Tatarstan at the end of 2018, 2019).
In 2019, 43,180 birth certicates were registered, which is 3,613 less than
in 2018. There was a 7.7% decrease in births compared to 2018. However,
despite the constant slight decrease in the number of births over the past
three years in the Republic of Tatarstan, it is worth noting that the measures
taken by the state to stimulate the birth rate have proved their effectiveness.
More than 60% of children born in 2019 are the second, third, etc. child in
the family (Statistical reporting on state registration of vital records in the
Republic of Tatarstan at the end of 2019, 2020).
In 2017, the registering authorities drew up 6291 paternity registration
certicates. This is 10.4% less than in 2016. According to the same source,
in 2018 the civil registry ofces drew up 5893 paternity registration
certicates. In 2019 - 5502 certicates.
Modern conditions of development of society have caused a certain
reassessment of views on the traditional family. In this regard, the
legislation in the eld of establishing the origin of children needs further
study and improvement. The importance of studying the problems of legal
regulation of relations associated with establishing the origin of children
is determined by the need to ensure that the interests of the child are met.
770
Leisan Nasovna Khasimova y Alexey Olegovich Zadvornov
Legal Regulation of Relations on the Establishment of the Origin of Children in the Russian
Federation
However, the interests of parents in this matter are no less important. After
all, if a person not involved in the birth of a child carries out his upbringing
and maintenance of the child, then there is a clear implementation of other
people’s parental rights and the fulllment of other people’s duties. And the
de facto parent in this case, if the specied legislation is imperfect, can shift
parental responsibilities to another person.
The procedural aspect of the considered issue also plays an important
role. In a judicial procedure for establishing the origin of children, some
controversial points may arise. Family law requires state registration both
of the fact of birth and the fact of origin. They serve as the basis for the
emergence of rights and obligations between parents and children.
The document conrming the registration of the above facts indicates
information about the parents. Moreover, most often the registration of the
fact of birth and the fact of origin coincide. However, the absence of a legally
registered marriage between parents or other fact that reliably conrms the
fact of paternity will prevent this from happening.
2. Research results
Parental relationship is a set of personal non-property and property
relations between a child on the one hand and his father and mother, on
the other. The rights and obligations of parents associated with proper
maintenance, upbringing, and child care, constitute the content of these
legal relations.
These relationships develop within the family and are difcult to
legalize. They are based on spirituality, love, caring and respect. Each
family builds them according to an individual model, based largely on the
personal qualities of family members. Accordingly, the legislator cannot
establish precise prescriptions for the behavior of participants in family
legal relations, limiting himself only to general principles and principles. It
can be argued that family relationships are the basis of state relations.
Parental relationship should be considered as an independent type
of family relationship. A characteristic feature of parental relationships
is the elemental composition, features of their emergence, development
and termination. Their very name contains the whole essence of parental
relationships - these are the rights and obligations of parents in relation to
children, meanwhile, their content also includes the rights and obligations
of children in relation to parents.
Parents and children are the subjects of these legal relations. The parents
of the child are a woman and a man, recorded in the birth register in the
registry ofce. In a biological sense, these are persons the child genetically
originates from.
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In addition to biological origin, parents and children are interconnected
by a set of mutual rights and obligations enshrined in law. From a legal
standpoint, a legal connection between them arises only after the
implementation of the procedure for certifying the origin of the child from
specic persons.
Recently, along with the category of genetic parenting as the basis for
the emergence of a legal relationship between parents and a child, the
category of social parenting has been justied. This is due to the existence
of such legal institutions as adoption, as well as to the active development
and use of assisted methods of human reproduction. Recently, many states
has shown a tendency to an increase in the use of these methods, which
cannot be ignored by both fertility specialist, geneticists, sociologists, public
gures, and jurists (Tagaeva and Aminova, 2017). As an example, surrogacy
can be mentioned.
The domestic legislation does not provide for any adequate legal
regulation of the mechanism for the use of assisted reproductive technologies
(ART) and the procedure for establishing the origin of a child born with the
use of ART. Only legal relations have been settled on the registration of a
surrogate mother as the mother of a newborn.
The development of reproductive medicine has given rise to certain
problems of legal regulation in this area. Researchers of the legal regulation
of these legal relations began to operate with new categories: “reproductive
travel” (Gürtin, 2011), “fertility tourism”, “reproductive tourism”, “medical
tourism” (Inhorn and Patrizio, 2009; Letherby, 1999; Whittaker and Speier,
2010). As A. Diel rightly notes, at the international level, there are also no
uniform or at least similar legal norms designed to regulate reproductive
tourism that is actively ourishing in many countries (Diel, 2014).
Modern states are ambivalent about ART. In a number of countries, such
as Russia, the USA, Azerbaijan, Armenia, Great Britain, Georgia, India, etc.,
the use of ART is permitted, and surrogacy is especially popular (Dickens
and Cook, 1999). In a number of countries, surrogacy is prohibited. We are
talking about such European countries as Germany, Norway, France, etc. In
this regard, problems arise when using surrogacy complicated by a foreign
element.
In accordance with the family legislation of the Russian Federation,
parental rights and responsibilities are recognized primarily for biological
parents, although there are exceptions.
Registry ofces carry out state registration of the fact of the birth of a
child, simultaneously conrming its origin from a certain man and woman.
But what is it for?
772
Leisan Nasovna Khasimova y Alexey Olegovich Zadvornov
Legal Regulation of Relations on the Establishment of the Origin of Children in the Russian
Federation
In practice, there are cases when the lack of data on the origin of a child
from a particular person may serve as an obstacle to the exercise of the
subjective rights of the mother and child.
Based on the established relationship, the issues of alimony obligations
between parents and children are resolved in court.
Establishment of family ties is necessary when considering certain
categories of cases in the order of administrative proceedings. In one of
the cases, the court found that the citizen did not submit an application for
registration of his newborn daughter at his place of residence within the
time limit established by law, which was recognized as a violation of the
rights of the child and led to administrative liability.
An analysis of judicial practice shows that the legal registration of the
fact of the child’s origin from his/her parents plays a very important role in
the performance of any transactions by the parents in relation to the child’s
property, hence the right to judicial protection of the rights of the child
and his parents. Consequently, the legislator provides for the obligatory
registration of the fact of birth and origin of a child within a specied period.
In the Russian Federation, the requirement established by Article
7 of the Convention on the Rights of the Child of November 20, 1989,
according to which a child must be registered immediately after his/her
birth, conrms his/her origin and the fact of birth. The origin of a child
from specic parents is recognized as a conrmed legal fact only after it has
been certied by a competent authority. With an application for the birth
of a child, parents must contact the registry ofce within a month from the
date of birth of the child, in accordance with the requirements of paragraph
6 of Art. 16 FZ «On vital records”.
Today, in most of the countries of the world, including the Russian
Federation, children born both out and in wedlock have equal rights. This
legal position is of fundamental importance and is established by the 1989
UN Convention «On the Rights of the Child». Also, in order to exercise the
rights of children, to prevent their discrimination in the Russian Federation,
the Federal Law “On the Basic Guarantees of the Rights of the Child in the
Russian Federation” of July 24, 1998 No. 124-FZ was adopted. Chapter 2 of
this law establishes the main directions of ensuring the rights of the child in
the Russian Federation, which include legislative guarantees of the rights
of the child, assistance in their implementation and protection, measures to
promote the comprehensive development of the child, etc.
Despite the legally enshrined principle of equality, in fact, there is
still an inuence of the circumstances of the birth of a child, namely the
presence of a registered marriage between his/her parents. The procedure
for establishing the origin of the child from the father depends on this
circumstance.
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Parental rights and responsibilities do not legally arise by themselves
immediately after the birth of a child. In order to acquire parental rights
and responsibilities, state registration of the fact of the birth of a child
should be carried out (Krasnova, 2016). The establishment of a direct
genetic, biological tie between parents and a newborn can be considered as
the main legal fact within the framework of the actual composition of the
creation of their legal relationship.
We think that the mechanism for establishing the origin of a child
provided for by the legislator is aimed primarily at protecting the rights and
interests of a minor. This mechanism also creates a legal basis for parents
to exercise their rights and fulll their responsibilities for the upbringing
and maintenance of their child. After all, the formal consolidation of family
relations is very important.
Summary
As mentioned above, the emergence of legal relations between a child
and his parents requires two components: rstly, the very birth of the child,
and secondly, the establishment of the fact of the child’s origin from specic
parents.
The birth of a child, as a vital record and as a legal fact of legal signicance,
requires mandatory state registration. As a rule, the registration of the fact
of birth and the establishment of the origin of the child coincide in time,
since after completing this procedure, the parents receive a birth certicate
of the child, which contains information about the parents as well.
The certicate of state registration of birth (hereinafter - the birth
certicate) is an ofcial document of the state standard.
The federal law «On vital records», dening the range of sources,
establishes that the legislation on vital records consists of the Federal
Law based on the provisions of the Civil and Family Codes of the Russian
Federation and the regulatory legal acts of the Russian Federation adopted
in accordance with it. In the cases provided for by this Federal Law, when
registering vital records, the norms established by the laws of the constituent
entities of the Russian Federation adopted in accordance with the FC RF,
in particular, the Family Code of the Republic of Tatarstan (hereinafter
referred to as the FC RT), are considered.
For example, according to Art. 49 FC RT, a child can be assigned a
patronymic based on national traditions. This is another regional feature of
the Republic of Tatarstan, enshrined at the level of the law of the subject of
the Russian Federation.
774
Leisan Nasovna Khasimova y Alexey Olegovich Zadvornov
Legal Regulation of Relations on the Establishment of the Origin of Children in the Russian
Federation
State registration of vital records is also possible at the consular ofces
of the Russian Federation.
The regulatory framework on the basis of which the powers to register
vital records are exercised include administrative regulations adopted by
the authorized federal executive body on the basis of legislation on vital
records. For example, the Order of the Ministry of Justice of Russia «On
Approval of the Administrative Regulations for the Provision of State
Services for State Registration of Vital Records by Bodies Carrying out
State Registration of Vital Records in the Russian Federation» (hereinafter
referred to as the Regulation).
In case parents, for objective reasons, are not able to independently
apply to the registry ofce in order to register the fact of the birth of a child,
in accordance with the Regulations, an authorized person can submit an
application for registration on the basis of a parental power of attorney. An
ofcial of the institution the child is staying was born in has the same right.
The application must be sent within a month from the date of the actual
birth of the child.
The applicant must attach to the application a birth certicate issued by
the medical organization the birth took place in.
The regulations on state registration of vital records also provide for
state registration of the fact of the birth of a child who was born dead.
In accordance with Art. 51 of the Investigative Committee of the Russian
Federation and the aforementioned regulations, the state registration of the
fact of the birth of a child born using articial methods of reproduction,
namely surrogate motherhood, is carried out. Spouses who have expressed
their will in writing to bear and give birth to their child by a surrogate
mother can be recorded as biological parents of the newborn only after
receiving written consent from the surrogate mother.
Conclusion
Recently, the state’s interest in the problems of family law has been
increasing. This is due to the improvement of legal regulation of family legal
relations, and with the increasing attention of the state to the problems of
family, motherhood, fatherhood and childhood, which in turn is due to the
need to solve social problems in society.
Registration of vital records, in general, and registration of the fact of
birth in particular, is an invariable proof that the facts that require state
registration have actually taken place, happened in a person’s life. The
nal stage of state registration of the fact of birth is the issuance of a
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birth certicate by a state body, which is an ofcial document. We see the
importance of registration of vital records in streamlining civil turnover, it
is aimed at protecting state interests, ensuring law and order in the country
as a whole, as well as protecting the interests of individuals, protecting their
property and personal non-property rights.
While state registration of the fact of birth is a certicate of the child’s
origin and serves as the basis for the emergence of parental relationships.
Acknowledgments
The work is performed according to the Russian Government Program
of Competitive Growth of Kazan Federal University.
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Federation
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 68
