Enero-Junio 2023

Vol. 13 No. 1

Svirin, Neznamova, Gorbunov, Malcev y Kudinova / Implicaciones jurídicas y sociales del establecimiento de

la paternidad

Interacción y Perspectiva Dep. Legal pp 201002Z43506

Revista de Trabajo Social ISSN 2244-808X

Vol. 13 N

enero-junio

ARTÍCULO DE INVESTIGACIÓN

Implicaciones jurídicas y sociales del establecimiento de la paternidad

/DOI: 10.5281/zenodo.7382864

Yury Alexandrovich Svirin *, Alla Andreevna Neznamova **,

Mikhail Aleksandrovich Gorbunov ***, Vitaliy Anatolevich Malcev ****, Anastasiia Valeryevna

Kudinova *****

Resumen

El establecimiento de la paternidad y la maternidad no sólo tiene una gran importancia

jurídica sino también una gran importancia social. Sin embargo, hasta la fecha, existen

lagunas en la legislación rusa en la regulación legal del establecimiento de la paternidad

y, en algunos casos, la maternidad. Algunas cuestiones no resueltas relacionadas con el

origen del niño se resuelven en el marco de las posiciones jurídicas de diversas instancias

judiciales, lo que diversifica aún más los diversos puntos de vista sobre estos temas ya

que la práctica judicial no es homogénea. El objetivo del estudio fue identificar los

problemas de regulación jurídica del origen de los hijos, la determinación de la

paternidad y la maternidad, e investigar las fuentes históricas y la práctica judicial sobre

las cuestiones mencionadas. El tema fue estudiado desde la posición de los métodos

científicos generales de cognición (análisis sistemático, teórico e histórico) y métodos

científicos privados, como la jurisprudencia comparada, el análisis lógico, técnico y

jurídico, la concreción y la interpretación. Se analizó la historia de la institución del

establecimiento de la paternidad, se estudió la legislación rusa que regula las cuestiones

del origen de los niños y el aspecto legal del establecimiento de la paternidad y la

maternidad, así como la práctica judicial. Partiendo de los resultados obtenidos, los

autores han formulado posiciones doctrinales sobre este tema

Palabras clave: establecimiento de la paternidad, establecimiento de la maternidad,

reproducción humana.

Abstract

Legal and social implications of establishing paternity

The establishment of paternity and maternity is not only of great legal importance, but

also of great social importance. However, to date, there are gaps in Russian legislation

in the legal regulation of the establishment of paternity and, in some cases, maternity.

Some unresolved issues related to the origin of the child are resolved within the

framework of the legal positions of various judicial instances, which further diversifies

the various points of view on these issues since judicial practice is not homogeneous.

The purpose of the study was to identify the problems of legal regulation of children’s

origin, the establishment of paternity and maternity, and to investigate historical sources

and judicial practice on the above issues. The topic was studied from the position of

general scientific methods of cognition (systematic, theoretical, and historical analysis)

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and private scientific methods, such as comparative jurisprudence, logical, technical, and

legal analysis, concretization, and interpretation. The history of the institution of

paternity has been analyzed; the Russian legislation regulating the issues of children’s

origin and the legal aspect of establishing paternity and maternity have been studied, as

well as judicial practice. According to the results obtained, the authors have formulated

doctrinal positions on this issue.

Keywords: establishing paternity, establishing maternity, human reproduction

Recibido: 03/10/2022 Aceptado: 25/11/2022

* Doctor en Ciencias Jurídicas, Profesor de la Universidad Financiera del Gobierno de la Federación Rusa,

Moscú, Rusia. Abogado honorario de Rusia. Miembro de la Academia de Ciencias Naturales, Moscú, Rusia.

ORCID ID: https://orcid.org/0000-0001-7616-2637. E-mail: usvirin@mail.ru

** Doctor en Derecho, Profesor Asociado, Academia de Trabajo y Relaciones Sociales, Moscú, Rusia; Profesor

Asociado, Universidad Estatal de Gestión, Moscú, Rusia. ORCID ID: https://orcid.org/0000-0002-7534-6327.

Correo electrónico: aanezn@gmail.com

*** Doctor en Derecho, Profesor Asociado del Departamento de Teoría, Historia del Estado y del Derecho,

Disciplinas de Educación General de la Universidad Estatal de Justicia de toda Rusia, Moscú, Rusia; Profesor

Asociado de la Universidad Estatal de Administración, Moscú, Rusia. ORCID ID: https://orcid.org/0000-0003-

0376-1668. Correo electrónico: mig75@list.ru

**** Doctor en Derecho, Profesor Asociado, Jefe del Departamento "Teoría del Derecho, Derecho Civil y

Procedimiento Civil" del Instituto de Derecho de la Universidad Rusa del Transporte (MIIT), Moscú, Rusia.

ORCID ID: https://orcid.org/0000-0001-8340-8180. Correo electrónico: maltsev@ui-miit.ru

***** Estudiante de posgrado, Academia de Trabajo y Relaciones Sociales, Moscú, Rusia. ORCID ID:

https://orcid.org/0000-0002-3526-0895. Correo electrónico: nastya-rt@mail.ru

1.- Introduction

The history of the origin and development of the institution of establishing paternity

in Russia begins with the times of Ancient Rus, which indicates the rather serious

importance of the legal, sociological and philosophical aspects of this institution. At any

historical period and in any legal system, the law could not ignore the relations that

regulated the relationship between a child and its parents.

Since Russia was a patriarchal country, for a long time children were classified as

legitimate and illegitimate. Only legitimate children, i.e. those who were born in a legal

marriage, had a legal relationship with their parents. The status of a legitimate child was

a necessary act for the recognition and assimilation of such a child into society. The

illegitimate child, on the contrary, did not have a surname, was deprived of the estate

status of the father, and had no rights to any inheritance. Officially, no kinship was

recognized for illegitimate children, including with the biological mother.

However, the development of human society, the gradual harmonization of individual

rights and freedoms, and the state's need for human reproduction gradually exacerbated

the problems of legal recognition of illegitimate children, and the subsequent

development of science, technology, and medicine and the appearance of artificially

conceived children exposed the problems of establishing and recognizing their parents.

Gradually, a situation developed when the legislator began to lag behind the

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la paternidad

development of medical technologies, which caused the appearance of scientific papers

in the field of establishing kinship between children and their parents.

2. Methods

In the course of the study, we analyzed legislation and scientific literature, a

comparative analysis of international approaches to solving the problem of legal

regulation of establishing paternity (maternity), and a generalization of the opinions of

scientists on the studied problem. Various sources of information were used to formulate

and solve the problem, namely, strategic planning acts, regulatory legal acts, statistical

information posted on government websites, monographs, and articles, including those

published in journals indexed by Scopus and Web of Science, containing provisions on

the problem of establishing paternity (maternity) in the Russian Federation (RF).

We used general scientific methods of cognition, including the principle of objectivity,

and consistency, as well as such methods as theoretical and historical analysis. Along

with general scientific methods of cognition, private scientific methods were used, such

as comparative jurisprudence, logical and technical legal analysis, and concretization.

The methodological basis of the study was the method of the theory of cognition.

3. Results

The history of the development of Russian legislation on the establishment of

paternity and maternity can be divided into several stages.

The first stage (pagan), according to A.M. Akhmedkhanova (2003) lasted until 988.

Before the adoption of the Christian faith, Russian family law consisted mainly of

legal customs regulating both marriage and the birth of illegitimate children. It was only

after the adoption of Christianity that pagan traditions were replaced by religious

postulates, which, as K.A. Kirichenko (2007) points out, provided for the separation of

children into legitimate and illegitimate ones, depending on whether a church marriage

was concluded.

The second stage (until about the beginning of the 18th century) was associated with

the adoption of Christianity in Russia.

The second period was characterized by the spread of Christian prescriptions on

family legal relations and the strongest influence of the church on marriage relations.

Moreover, following the Cathedral Code of 1649, the birth of a child out of wedlock was

a criminal offense and was strictly prohibited. Recognition of an illegitimate child was

impossible under any circumstances, including the subsequent marriage between its

parents. To avoid punishment and shame, mothers began to kill illegitimate children.

However, subsequently, to eliminate such barbaric cases, special homes "for shameful

babies" began to be created throughout the territory of the Russian state.

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The third stage was connected with the reign of Peter I, during which, for the first

time, the procedure for legalizing illegitimate children began to be regulated. Thus, in

1715, Peter I adopted a Military Article, where the duties of a father to support his

illegitimate child, as well as the child's mother, were registered at the legislative level.

As historians mention, the state care of foundlings began with the order of Peter I on

the construction of houses in cities "to preserve the lives of shameful babies, to whom

wives and girls give birth illegitimately and whom, for the sake of shame, they sweep

away in various obscene places." In the future, according to the Decree of Catherine II,

"No one who declares an illegitimate baby should be shamed for it." The Church also

called for the preservation of the lives and health of "unhappily born children."

The fourth stage can be called Soviet (1917-1991), when there were no legal

principles regarding the establishment of the origin of kinship. Soviet legislative reforms

show opposite approaches to this issue, starting with giving cohabitation the status of a

legal relationship and ending with a complete ban on unmarried mothers filing lawsuits

to establish paternity. The legislator's desire to provide full legal protection to

"illegitimate" children sometimes reached absurd situations. For example, at some point,

one child could simultaneously have several fathers. For instance, in article 144 of the

Family Code (FC) of the Russian Soviet Federative Socialist Republic (RSFSR) of 1918,

a provision was fixed according to which, if the court while reviewing the case found that

the person indicated as the father of a particular child in the application of the child's

mother at the time of conception had close relations with the child's mother, but at the

same time she had a relationship with other people, the court decided on involving all of

them as defendants and imposed on all of them the obligation to participate in the costs

associated with pregnancy, childbirth, birth and maintenance of the child, i.e. the court

established solidarity obligations of all men who cohabited with the mother of the child.

Subsequently, judicial practice formulated a different legal position, according to which

the obligations of men to pay child support were shared between all alleged fathers of

the child if it was impossible to establish biological kinship.

Cardinal changes in state policy related to the establishment of kinship between

parents and children occurred in 1944 when Decree No. 118/11 of the Presidium of the

Supreme Soviet of the USSR "On increasing state assistance to pregnant women,

mothers of many children and single mothers, strengthening the protection of maternity

and childhood, on the establishment of the honorary title "Mother Heroine" and the

establishment of the Order "Maternal Glory" and the medal "Medal of maternity" dated

08.07.1944 was adopted (Supreme Soviet of the USSR, 1944). The provisions of this

decree completely crossed out the norms of the Soviet family legislation of the previous

years. In particular, this decree completely banned the establishment of paternity

concerning illegitimate children both administratively and judicially, and a dash was

always placed in the "father" column in the child's birth certificate if the child was born

out of wedlock. The legislative novelty allowed biological fathers to withdraw from the

maintenance and upbringing of their children, which had a significant impact on the

formation of the negative role of the father in the child's life in the public consciousness

and undoubtedly provoked a further crisis of the family institution.

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In 1968, a new Code on Marriage and Family of the RSFSR was adopted, the

provisions of which restored the institution of the voluntary and judicial establishment

of paternity of children born out of wedlock.

Having analyzed the history of the development of the institution of establishing

paternity in the USSR, it should be concluded that during the Soviet period, the image

of the father as an irresponsible parent and educator was gradually formed in the public

consciousness, which still has negative consequences for the development of family legal

relations and has an impact on judicial practice, for example, in determining who gets

custody of a child if the parents live separately.

The fifth period is modern (from 1991 to the present). After 1991, a colossal reform

of the system of marriage and family relations was carried out. Currently, the main

source of regulation of family legal relations in Russia is the Russian Federation Family

Code (RF FC), adopted in 1995. For the first time, it enshrined the provision that children

born out of wedlock were fully equated with children born in marriage, and such children

would have absolutely the same rights and obligations towards their parents as children

born in marriage. However, at the same time, the state registration of paternity in the

relevant authorities is a prerequisite for the emergence of a legal relationship between

the father and the child. Currently, consanguinity and recognition at the state level are

two inherent circumstances that give rise to mutual rights and obligations of parents and

children. If the child's parents are not in a registered marriage and there is no father's

declaration of paternity, then the child's origin from a particular person can only be

established in court. Thus, modern Russian legislation provides for two ways of

establishing paternity: voluntary procedure and judicial order.

If we talk not only about establishing paternity but about establishing kinship in

general, then it can be argued that at this stage the Russian legislator recognizes not

only biological kinship but also the so-called social kinship. As K.A. Kirichenko (2007:

23) believes, "Such legal institutions as adoption, recognition of paternity or maternity

in the absence of a biological connection with the child, as well as surrogacy should not

be regarded as kinship, since they only generate legal relations equated to kinship".

However, if we turn to legal terminology, we can notice a pluralistic approach to

understanding kinship. In particular, the provisions of Article 1147 of the Civil Code of

the RF equate the adopted person and the adoptive parent to "relatives by origin", i.e.

blood relatives, i.e. the legislator equates social and blood kinship. Most Russian

researchers understand kinship as a lasting relationship of individuals arising from the

origin (blood or social) of one person from another, as well as a relationship aimed at

the functional replacement of such relationships. This relationship can be classified on

several grounds.

If we consider kinship from the point of view of the presence or absence of a biological

connection, then it can be: biological or social. Biological kinship refers to a relationship

based either on the community of genes (genetic kinship) or by bearing and giving birth

to a child by a woman (gestational kinship). Social kinship is based on the connection of

one person with another, arising by a social nature, not biological. For example, when a

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husband consents to the artificial insemination of his wife, he automatically becomes the

father of the child born, and in this case, we should talk about social kinship.

Depending on the time and circumstances of establishing kinship ties, primary and

secondary kinship can be distinguished. Primary kinship, as a rule, is established

between parents and the child and occurs when registering the child with the registry

office after the birth of the child. Secondary kinship is formed in a situation when

biological parents, for some objective reasons, cannot ensure that the interests of the

child will be served (for example, the parents have not been identified, have died, or

have been deprived of parental rights), and other persons, "adaptive" parents, wish to

replace such persons.

The doctrine also distinguishes the following types of kinship: consanguinity, legal

kinship, marital kinship, etc. Consanguinity is based on the origin of one person from

another (biological kinship). It can be direct (the origin of one person from another) and

lateral (the origin of several persons from one common ancestor). Marital kinship

emerges based on marriage between people (social kinship). Legal kinship arises based

on a legally fixed connection between people, and these people may not be blood

relatives.

In addition to establishing paternity, special attention should be paid to establishing

maternity. Under paragraph 1 of Article 48 of the RF FC, the origin of the child from the

mother is established based on documents confirming the birth of the child by the mother

in a medical institution. If the birth of a child occurred outside a medical institution, the

relationship is established based on medical documents, witness statements, and other

evidence. In the case of childbirth outside a medical institution and in the absence of

medical workers, the registration of the fact of the birth of a child by a particular woman

is made based on an application by a person who was present at the birth. If a child is

born on a ship, the captain is obliged to draw up an appropriate certificate in the

presence of two witnesses and a doctor, as well as make an entry in the ship's log (Article

32 of the Code of Inland Water Transport of the RF No. 24-FZ dated 07.03.2001 (State

Duma of the Federal Assembly of the Russian Federation, 2001)). In the absence of the

above-described evidence, the fact of the child's origin from a particular woman is

established based on a court decision. During the trial, any evidence may be taken into

account, including expert opinions, explanations of persons participating in the case, etc.

(Plenum of the Supreme Court of the Russian Federation, 2017).

The provisions of Article 47 of the Civil Code of the RF stipulate the obligation of state

registration of the birth of a child (indicating its father and mother), after which the

parents acquire the status of legal representatives of the child. A literal interpretation of

this norm allows us to conclude that the legal relationship between parents and a child

arises only after the official certification of information about the mother and father in

the civil registry offices. A long time may pass between the birth of a child and state

registration, which means that during this entire period there are no legal relations

between the parent and the child, hence, no mutual rights and obligations. At the same

time, the fact that without a state certificate of the father and mother, the interests of

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the child are not subject to legal protection, clearly contradicts the provisions on the

ownership of fundamental rights and freedoms to a person from the moment of birth.

Thus, in Russian law, there is a situation when the state registration of birth, which is

secondary by nature, is given the importance of a law-forming fact.

From the point of view of Russian law, the term "paternity" does not carry formal

legal content and can be viewed from different points of view. First of all, this term

means the origin of a child from a specific person. At the same time, in the legal

literature, paternity means a special legal relationship between the father and the child,

generating certain rights and obligations for both, while the man may not be the

biological father. In other words, there are two main approaches to the disclosure of the

concept of "paternity": the biological (narrow) approach and the legal (broad) approach.

It seems to us that the interests of the child are better served by the connection with

the person who brought up the child and carried out other parental functions for a long

period than the connection with the biological father. At the same time, given that Russia

is a multinational country and some ethnicities are strongly influenced by religious

beliefs, this point of view is debatable.

Also controversial, in our opinion, is the issue of automatic recognition by the father

of a child born within three hundred days after the dissolution of marriage or from the

moment of death of the spouse of the child's mother, who may not be the biological

father of the child. In this case, the interests of a man are ensured only by the possibility

of challenging this fact in court, and this is a long and costly process.

The modern development of science and, in particular, medicine, contributes to the

emergence of new aspects in the issues of establishing the origin of children. At this

stage of society's development, the practice of giving birth to children using assisted

reproductive technologies has become widespread. Many legal and ethical issues related

to this have not yet found a unified solution both in the global community and among

Russian scientists.

The possibility of artificial reproduction of a person for the first time in Russian history

was officially enshrined in Article 17 of the Fundamentals of the Legislation of the USSR

and the Union Republics on Marriage and Family, approved by the USSR Law No. 2834-

VII of 27.06.1968: "A husband who consented to artificial insemination of his wife with

the help of a donor is registered as the father of the child she gave birth to and has no

right to challenge the registration" (Supreme Soviet of the USSR, 1968).

Currently, there is no single law regulating issues in the field of the use of artificial

reproduction methods during the conception of a child.

A literal interpretation of the norms of family law allows us to assert that only persons

who are married in a registered marriage can resort to assisted reproduction methods

(clause 4 of Article 51 of the RF FC). At the same time, Article 55 of the Fundamentals

of the Legislation of the RF on Health Protection contains provisions regulating the right

of men and women to use reproductive auxiliary technologies, regardless of whether

they are married or not. As you can see, this provision contradicts the RF FC. It seems

that in the interests of the child, both the man and the woman, both married or

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unmarried, who have given their consent in writing to the use of artificial insemination

or embryo implantation, in the case of the birth of their child as a result of the use of

these methods, should be registered as its parents in the birth register.

At the present stage, there are three main methods of fertilization using reproductive

technologies: artificial insemination, embryo implantation, and embryo implantation into

the body of a surrogate mother. There is no legal definition of the concept of "artificial

insemination". The issue of establishing paternity and maternity with this method of a

child's conception is regulated in paragraph 4 of Article 51 of the RF FC, which states

that parents who have consented to artificial insemination are subsequently registered

as the parents of this child. However, the father who consented to artificial insemination

has the right to challenge paternity if it later turns out that conception did not occur as

a result of the use of reproductive technologies. This right is enshrined in paragraph 30

of Resolution No. 16 of the Plenum of the Supreme Court of the RF. It also states that

the challenge of paternity is also possible in cases where consent to the use of artificial

reproduction methods was given unknowingly or involuntarily, or when the person did

not consent to the use of donor biological material in the application of these methods,

etc.

Besides, Russian family legislation does not regulate the issue of so-called "post-

mortem paternity" (from Lat. post-mortem, "posthumous" (Merriam Webster Dictionary,

n.d.)), when the conception of a child occurred with the help of the father's gametes

(using male germ cells) when the father is dying or at any point after his death. In our

opinion, based on ethical considerations, the conception of a child under such

circumstances should occur under the following conditions:

1) the man dies after his entry into the artificial insemination program and after his

genetic material has been taken with his consent (during his lifetime);

2) there is written permission from the man for the possibility of fertilization with the

help of his gamete cells after his death.

The next method of artificial reproduction of a person is artificial embryo implantation

or in vitro fertilization (IVF). Currently, this method is quite widespread, known all over

the world, is an ordinary medical procedure, and is used in many clinics. The first

pregnancy carried out with the help of in vitro fertilization was carried out in the UK in

November 1977. As a result of this procedure, a girl, Louise Brown, was born in 1978

and became the first person in history to appear in this way (Gadzhimagomedova &

Kurbanalieva, 2018).

For the legal qualification of the fact of the birth of a child in this way, two conditions

must be met:

1) mutual written consent of both the man and the woman for embryo implantation;

2) the fact of the birth of a child by a woman who had an embryo implanted.

The essence of this method is the preliminary fertilization of a female egg in the

laboratory, bringing it to a certain stage of development and subsequent insertion of the

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embryo into the uterine cavity. Thus, artificial embryo implantation is one of the methods

of fertilization with the help of assisted reproductive technologies, in which an embryo

is implanted in the female applicant, as a result of which the female applicant carries

and gives birth to a child. With this method of conception, the issue of establishing the

origin of a child from specific parents is regulated by paragraph 4 of Article 51 of the RF

FC, which states that persons who have consented to the use of the embryo implantation

method are subsequently registered as the parents of the child conceived in this way.

There are no legal definitions of the concepts of "surrogacy" and "surrogate mother"

in the family legislation of Russia. At the same time, there are legally fixed requirements

for a surrogate mother: age from 20 to 35 years, good mental and somatic health, and

having a healthy child of her own (Part 10 of Article 55 of the Law on the Basics of Public

Health Protection in the RF). Based on these requirements, it can be formulated that a

surrogate mother is a physically and mentally healthy woman aged 20 to 35 years, who

has a healthy child and has given written consent to fertilization using assisted

reproduction methods for further bearing and giving birth to a child for another family.

According to the provisions of clause 2, paragraph 4, Article 51 of the RF FC, persons

who have given written consent to the implantation of an embryo to another woman for

its gestation and birth can be registered as the parents of the child after its birth only

with the consent of the surrogate mother. It follows from the above that the emergence

of parental rights for a person awaiting the birth and transfer of a child to them

completely depends on the will of the surrogate mother, which makes this method of

giving birth to a child questionable from a legal point of view and in doctrine it causes a

lot of controversies. The literature describes cases when a woman who carried a child

refused to transfer the newborn to the genetic parents. Thus, from the judicial practice

of the court of St. Petersburg, a case is known when a surrogate mother refused to

transfer twins born with the help of surrogacy to family N. Everything went well until the

moment when the surrogate mother was no longer satisfied with the terms of the

contract and she demanded a significant increase in the amount for the second child.

Having been refused, she stopped answering calls, moved to another place of residence,

and gave birth to twins in a maternity hospital not specified in the contract. Then the

surrogate mother refused to give the children away to their biological parents. The

biological parents sued the woman, and the court eventually sided with them,

recognizing the actions of the surrogate mother as unfair, and ordered her to give the

children to N.

Despite the judicial legal position, the Russian legislator recognizes the fact of

bearing and giving birth to a child as more significant than its genetic origin, which, it

seems to us, creates many legal problems that seriously affect the interests of biological

parents.

The provision enshrined in paragraph 2 of paragraph 4 of Article 51 of the RF FC also

does not resolve another important question: when should a surrogate mother consent

or refuse to give the child away to genetic parents? Moreover, based on the literal

interpretation of the norms of positive law, the surrogate mother can change her mind

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up to the implementation of the corresponding entry in the civil registry offices. It follows

from this that any agreements with the surrogate mother on the mandatory transfer of

the child are not mandatory. The highest judicial instance of the RF in Resolution No. 16

indicated that if the surrogate mother refuses to give the child away, this circumstance

cannot serve as an unconditional basis for refusing to satisfy the claim of potential

parents for recognizing their child's parents and transferring the child to them for

upbringing. Thus, this issue is controversial and will depend on the specific circumstances

in each case.

Russian family law also allows for the voluntary establishment of paternity, which is

a legal action of the father of a child who is not married to the child's mother, aimed at

the emergence of mutual rights and obligations between him and the child. Like any

legal action, the establishment of paternity presupposes that the subject has full

consciousness and free will. Consequently, a person recognized by the court as

incapacitated due to a mental disorder cannot voluntarily recognize paternity. In

addition, the establishment of paternity at the request of the guardian of an

incapacitated person is impossible, since the above action is an expression of personal

will. At the same time, this rule should not apply to underage parents, which directly

follows from part 3 of Article 62 of the RF FC, which indicates the right of minors to

recognize and challenge their maternity and paternity on general grounds.

Sometimes it is difficult or impossible to submit a joint application for establishing

paternity after the birth of a child. For example, during pregnancy, the mother of the

father of the unborn child is sent on a business trip involving a risk to life, is drafted into

the army, during mobilization, or the father is seriously ill, etc. In such cases, the law

grants the right to expectant parents to file a joint application before the birth of the

child (part 3 of Article 50 of the Law on Acts of Civil Status). In this case, the state

registration of paternity under the circumstances is carried out simultaneously with the

state registration of the birth of the child. A pre-submitted application has serious legal

significance because, at the birth of a child, the applicant will be registered as the father

on the birth certificate, even if he is no longer alive. If such an application is subsequently

withdrawn, the very fact of its submission in court proceedings will be of significant

importance.

In Russian judicial practice, there are other incidents, for example, the fictitious

establishment of paternity. Thus, a foreign citizen who has a child with citizenship in the

RF can be granted a long-term residence permit without a temporary residence permit.

This provision of the law encourages migrants to use Russian family legislation for their

selfish purposes since only a statement from the father and the consent of the mother

if the child is a minor are required to establish paternity out of court. Moreover, based

on the meaning of part 2 of Article 52 of the Family Code of the RF, the law does not

prohibit establishing paternity concerning a person who is not the biological father of a

child. Therefore, foreign citizens, upon obtaining the consent of an unscrupulous mother,

fictitiously establish paternity to obtain a long-term residence permit. Based on the

logical interpretation of the current law, it can be concluded that the fictitious

establishment of paternity is a voluntary recognition by a man of the relationship

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la paternidad

between him and the child without the purpose of upbringing and maintenance of the

latter, and the preservation of the legal connection between such a person and the child

contradicts the interests of the child itself.

These gaps in Russian legislation determine the judicial disputes on the

establishment of paternity, which are an independent category of cases, the main

"beneficiary" of which is not one of the parties to the dispute (the mother and the alleged

father), but a minor child. As A.G. Prosvirin (2019) points out, "It is from the point of

view of protecting the interests of the child that the judge should distribute the burden

of proof and evaluate the evidence presented by the parties".

In the order of special proceedings, the fact of recognition of paternity and the fact

of paternity is established. It is possible to submit such claims to the court in cases of

death of a person who recognized himself as the father of a child, but was not married

to its mother and did not have time during his lifetime to issue a voluntary recognition

of his paternity in a pre-trial order. In these cases, some evidence must be presented

that reliably confirms the fact of recognition by the father of the child or the origin of the

child from a particular person, and there must also be no dispute about the right (Svirin,

2021). Following article 266 of the Civil Procedure Code of the RF, an application for

establishing the fact of recognition of paternity is filed at the applicant's place of

residence.

In all other cases, paternity cases are heard according to the procedure of claim

proceedings. To file a statement of claim regarding the establishment of paternity, the

following conditions must be met:

1) absence of a registered marriage between the alleged father and mother of the

child at the time of the latter's birth;

2) absence of a joint statement of the parents or the statement of the alleged father

of the child on the establishment of paternity to the civil registry offices;

3) the absence of the consent of the guardianship and guardianship authority to

establish paternity at the request of the father, if such consent is necessary.

4. Conclusion

Based on the above, we can draw the following conclusions:

1. Kinship in the legal sphere should be understood as a stable legal and factual

relationship between people who may or may not have a common genetic origin.

However, such a connection arises as a result of an act of legal consolidation and has

certain legal consequences.

2. The term "paternity" does not carry formal legal content. On the one hand,

"paternity" means the origin of a child from a specific person, on the other hand,

"paternity" is a special legal relationship between the father (not always biological) and

the child, generating certain rights and obligations for both. Thus, there are two main

Interacción y Perspectiva. Revista de Trabajo Social Vol. 13 N

1 / enero-junio, 2023

approaches to the disclosure of the concept of "paternity": the biological (narrow)

approach and the legal (broad) approach. The interests of the child are better served by

the connection with the person who brought up the child and carried out other parental

functions for a long period than the connection with the biological father.

3. Modern Russian legislation provides for two ways of establishing paternity:

voluntary procedure and judicial procedure.

4. In Russia, there is a situation when the state registration of birth, which is an

event of a secondary nature, is given the importance of a law-forming fact when

establishing paternity.

5. Based on the literal interpretation of the norms of positive Russian law, a surrogate

mother can change her decision up to the transfer of the child and the implementation

of the corresponding record in the civil registry offices. It follows from this that any

agreements with the surrogate mother on the mandatory transfer of the child are null

and void and she can keep the child without giving it to her genetic parents. At the same

time, judicial practice adheres to a different concept and often resolves the issue in favor

of genetic parents.

6. From the point of view of the current positive law of Russia, legal relations between

parents and a child arise only after the official certification of information about the

mother and father in the civil registry offices. However, a long time may pass between

the birth of a child and state registration, which leads to the conclusion that there is no

legal relationship between the parent and the child for this entire period, and therefore

the interests of the child are not subject to legal protection, which contradicts the

interests of the child. The state registration of the birth of a child is by default of a

secondary nature, but the legislator attaches importance to it as a law-forming fact.

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