Korekcyjna funkcja słuszności w prawie rodzinnym – kilka refleksji na marginesie wyroku M.R & Anor -v- An tArd Chlaraitheoir & Ors

Abstract

Processes occurring in the modern world such as the development of medically assisted procreation force lawyers to make decisions in the absence of explicit statutory regulations, or in the situation when the relevant provisions, however anachronic, operate – or in broader terms, when they threaten the fundamental values recognized by the community, even though at first glance it may appear that they are part of an axiology of the legal system. The equity rules play an important role in this context, allowing to provide the corrections of law. The reference to them is certainly not an easy task, especially when the consequence would be to give a ruling (at least prima facie), contra legem. However, perhaps because of such judgments we will approach the ideal of law understood as ars boni et aequi rejecting at the same time its vision, which can be described by another well-known maxim: summum ius summa iniuria. In the Irish case MR & Anor-v-An Tard Chlaraitheoir & Ors, the court has issued a precedent perhaps in the double sense of the term: thus – an event preceding and justifying other similar events in the future and the decision of the court serving as an example or justification for resolving similar issues or cases. The court assessed a broad context of an altruistic surrogacy agreement and made a decision that refl ects the objective truth about the origin of the children. Perhaps we will have to wait a long time for a similar ruling in Poland – perhaps under the current regime, it will never be issued.