Moderní genetika a naše současné rodinné právo

The author stresses the importance of good health condition for the harmony and stability of marriage. Consequently he considers necessary a ruling that would ensure the betrothed the knowledge of his or her own state of health as well as of that of his or her partner without excessive interference into the intimate personality sphere. But he is of the opinion that the valid Czechoslovak legal ruling, which in this respect is but of legis imperfectae nature, does not meet in due measure the requirements of modern genetics and medicine in general. He prefers a more emphatic solution that would introduce compulsory medical examinations with obligatory disclosure of certain, in particular eugenically significant diagnoses, to the other betrothed. The article deals in this part with the problems of intersexual persons or hermaphrodites and transsexual persons and takes up the author’s preceding studies in this respect. He concentrates in particular on their legal competency to contract marriage, and namely also on the question according to which regulations and by which procedure de lege lata they might seek determination that they had undergone change of sex, especially after a sex-reassignment or sex-conversion type of operation. He considers that the valid Czechoslovak law allows the prosecution of such claim in court, but that success can be expected just in the case of some hermaphrodites and not in the case of a genuine transsexual, since his biological status can be hardly changed even by plastic surgery. The author discusses in the first place the impedimenta consanguinities problems and reaches the conviction that it might be desirable for eugenic reasons to extend this up to and including 3rd and 4th degree collaterals. With respect to impedimentum deficientiae sanitatis it is advisable to extend to a wider scope of cases to prevent not only marriages of mentally deficient people, but also marriages contracted out of uninformed imprudence leading to the life and health of the descendants or the life of the other betrothed to be put in jeopardy. But in this wider scope such obstacles should be dispensable by court decision on relevant grounds. The author thinks that it shall not be possible to keep this intervention praeter legem, but to the contrary that practice will call for a legal definition of prerequisites making it legally permissible. In his opinion the ruling should be based on the following principles: a) the scope of medical indications for the intervention should be accurately defined, whether in case of insemination ab alieno or a marito, b) the intervention should be permissible to be carried out on a married woman alone, c) both husband and wife would have to be persons sui juris, d) consent of both would have to be necessary, e) their marriage should prove adequate stability, f) it should be either childless or not with more than one child, g) the nasciturus would have to enjoy the same legal status as a child born from the marriage in natural way, h) this would have to be applicable not only with respect to the mother and her husband, but also with respect to their relations, i) in some respects the legal status of the inseminate donor would have to be provided for, in particular that he would have neither rights nor obligations towards the child and that his anonymity should have to be observed. In this part the article deals with the point whether the fortunity of coition at the critical time should consitute the ground for not founding the paternity presumption and answers the question in the negative de lege ferenda and considers the valid Czechoslovak rule of law as quite adequate. The author further discusses whether it is possible within certain limits to effect comparison of likelihoods bearing evidence to more concubents in a paternity suit and thinks that this should be admitted. This conclusion, just as the previous ones, appears to him to be in harmony with the possibilities made available to the law by modern medical expert evidence in the field of haematology, hereditary anthropological research, the sciences of gynaecology, andrology and sexuology, in particular for cases where differences in likelihood are very considerable.