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Type of publication: master thesis
Field of Science: Teisė / Law (S001)
Author(s): Vazgytė, Greta
Supervisor: Grigienė, Jurgita
Title: Ar nepažeidžia tėvo teisių moters atliktas teisėtas abortas?
Other Title: Do man‘s rights get violated by woman's lawful abortion?
Extent: 40 p.
Date: 6-Jun-2018
Event: Vytauto Didžiojo universitetas. Teisės fakultetas
Keywords: Abortas;Tėvo teisės;Moters teisės;Abortion;Rights;Family
Abstract: Visuomenėje, vis labiau aštrėjant diskusijoms dėl vyrų ir moterų lygiateisiškumo principo, vyrai turi mažiau teisių nei moterys, viename iš svarbiausių reprodukcinių sprendimų – nėštumo nutraukime. Lietuvoje būsimo vaiko tėvo teisės yra tik patariamojo, o ne sprendžiamojo pobūdžio, panašus reglamentavimas yra visoje Europoje. Jungtinėse Amerikos Valstijose (toliau JAV) situacija keblesnė - 2017 metais siūlomos reformos. JAV prezidento Donald Trump pasiūlymu, Arkanse, buvo bandymas įteisinti abortą tik su būsimo kūdikio tėvo raštišku sutikimu. Apygardos teismas jį anuliavo, remdamasis argumentu, kad privalomas vaiko tėvo leidimas komplikuotų moters konstitucinę teisę į abortą. Tokios pat reformos bandytos Ohajo, Oklahomos valstijose. Taigi, nors užsimegzti gyvybei reikia vyro ir moters, ir gimus vaikui vyras tampa finansiškai jam įpareigotas, nėra jokio teisinio reglamentavimo būsimo tėvo atžvilgiu. Išanalizavus JAV ir Europos teismų praktiką bei tarptautinius ir nacionalinius teisės aktus, prieita prie išvados, kad moterų teisės viršija vyrų, nes nėštumo laikotarpis priskiriamas moters privačiam gyvenimui, kurį tretieji asmenys turi teisę riboti tik išskirtiniais atvejais. Taip pat vyras neturi galimybės išnešioti vaiko ir tik moteris dėl nėštumo rizikuoja savo sveikata ir gyvybe. O lygybė neįmanoma, dėl skirtingos vyrų ir moterų padėties bei negimusį vaiką nei Europos, nei pasaulio teismai nedrįsta pripažinti asmeniu. Galiausiai, reformos kaip finansinis abortas, pažeistų moters ir vaiko teises, o vyro pareiga išlaikyti vaiką atitektų valstybei, kas taip pat yra nesąžininga.
In the society the discussions about the principle of men's and women's equality is becoming more and more mordant, so it is especially important to evaluate its role in one of the key decisions of a person- to terminate pregnancy. Since times immemorial abortion has been raising a lot of questions. Most often there are discussions whether to allow it or ban, although there exists no less important question-the child's father. If the father obtains financial obligations after a child is born, would it be reasonable in his case to have the rights about the question of abortion? In USA courts men have been applying for decades trying to protect their equal rights with women and their unborn child's right to life. In Europe court practice is narrower, although even here the parents apply not only to national courts but to European Court of Human Rights as well. In here the fathers do not win due to woman's right to privacy, and health. Now obligatory written permit by the spouse to have the procedure of abortion is required in Islamic countries, such as Taiwan, Japan, Turkey and others. In 2017 USA due to president Donald Trump's suggestion such reform was established in Arkansas state, but U.S. District Court annulled it. The same acts were tried in Ohio and Oklahoma. So the reforms have been tried to be applied for a long time and in various countries. In Lithuania up to nowadays there exists certain lawful indetermination concerning abortion, and the situation is worsened by the fact that there is no clear regulation only "Order No50 of 28 January 1994 of the Ministry of Health of the Republic of Lithuania On the Procedures for performing a surgical termination of pregnancy", which allows to perform abortion up to 12 weeks. In this order a spouse is mentioned several times, but the right to participate in the decision making is not discussed. So the father's opinion is only of advisable but not decision making type. The men who do not want their wives or partners to have abortion apply to Family Crises centre pregnancy programs, Lithuanian lawyers' association " For family and life", The Equal Opportunities Ombudsman. In Republic of Lithuania Law on Equal Opportunities for Women and Men 1.2 article it is foreseen that "The provision of this Law shall not apply to family and private life", so there is no lawful precedent for The Equal Opportunities Ombudsman to solve this question. A conclusion is made that in Lithuania child father's rights are not violated. In our country, as well as in most European countries the biggest problem still remains not the question of father's rights but whether to allow or ban abortion. Convention for the Protection of Human Rights and Fundamental Freedoms has approved the rights to abortion as a part of private life. Due this argument, Men's claims (actions) are rejected. It is possible to presume that Europe in international documents firstly protects mother's privacy, and such countries as Poland and Hungary, in which abortion is prohibited, restricting performance of abortion, violate the Convention. For instance, in Ireland the regulation concerning abortion is especially strict and those who want to have the termination of pregnancy need to travel to another country, so European Human Rights Court decided that Ireland violates Convention article 8- Right to respect for private and family life. Also, there is an important women's argument - their right to health and body integrity. The Court practice explains - women cannot be made to give birth neither by the state nor the husband (man). In Europe special protection is applied to pregnancy and it is presumed that men and women are in different situations, so the equality is impossible. And until now the undefined field is fetus's right to life. Parents (fathers) fighting for their rights would like their fetus to have personal status, in that way they could win against women, because the life of the unborn fetus would become equally important to woman's. Courts are not able to answer whether the unborn child is a person, and it is still not clear if Convention article 2, which claims that nobody is allowed to take one's life deliberately (Everyone's right to life shall be protected by law), is applied to fetus. In Europe there does not continue the practice of abortion under father's permission. In Sweden, liberal party wanted to establish parents' abortion, in other words called financial, which would allow to refuse parental duties (responsibilities) towards the child. The most interesting situation is observed in USA, in 2017 abortion only with father's permission appeared in Arkansas, but the same month federal judge Kristine Baker annulled it, arguing that such law would violate woman's constitutional right to privacy, which is guaranteed by Fourteenth Amendment to the U.S Constitution. And that is only the beginning, the new president is against abortion and that kind of reforms were tried in Oklahoma, Ohio state. In 1973 USA Courts accepted the decision that pregnancy is the field of personal responsibility. Concerning Father's rights, whether they exist in case of termination of pregnancy nothing is said and finally woman's constitutional right to abortion was established. All the courts are based on this precedent, and it remains the most important one in question of abortion. Also, the Supreme Court has decided that father's permission is not needed, because otherwise it would become dependent on man and body anatomy remains the basis for solving cases of abortion and the unborn child is not able to survive on its own, without mother's body. In USA as well as in Europe special protection is applied to pregnancy. There are cases when national (local) courts forbade young women to have abortion but applying to higher institutions the verdict always used to be in favor of women. Having analyzed USA practice, it is not important whether the fetus has any constitutional rights, either moral or other, there is no question about discussions concerning abortion in USA. The priority to the life of an unborn child is applied only in some countries, such as Vatican, Malta and Chile. Women's rights overcome the men's rights due to their physiology, privacy, and the right to health. None of the laws or requirements may change pregnant women's decision to deliver or not. The period of pregnancy is reckoned as a private life, which cannot be restricted by the third party. Also, the man has no possibility to undergo pregnancy and only a woman risks her life due to pregnancy. Thus, men's arguments concerning equal rights and the child's right to life cannot restrict woman's right to make a decision. Equality is impossible due to different position of men and women, while to accept the unborn child as a person neither European nor world courts dare. Having investigated national, international documents, as well as USA and European court practice, a conclusion is made that father's rights are not violated in the case of lawful abortion.  
Appears in Collections:2018 m. (TF mag.)

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