DETERMINATION OF A CHILD’S PARENTAGE IN COMMON LAW COUNTRIES: LEGAL PRESUMPTIONS AND CASE LAW

Abstract

Determining a сhild’s parentage is a traditional institution of family law encompassing the establishment of paternity and maternity to a child. The birth of a child may occur under various circumstances, necessitating the adaptation of legal regulation and the application of norms that uphold the child’s best interests while respecting the rights and interests of all parties involved. This article offers a comprehensive analysis of legal presumptions and judicial practice concerning the determination of a child’s parentage in common law jurisdictions (the United Kingdom, the United States, Canada, Australia, and India) in the context of evolving family relations, globalization, and the proliferation of assisted reproductive technologies (ART).It examines both the traditional biological criteria for establishing maternity and paternity, as well as modern concepts of social and intentional parenthood, which are gradually being incorporated into legal systems, fostering flexible and inclusive approaches to protecting children’s rights.Particular attention is paid to the analysis of rules governing the presumption of paternity in cases of cohabitation or partnership, the possibility of establishing paternity before the birth of a child, surrogacy, and the legal recognition of multiple parentage in certain jurisdictions.The study explores precedent-setting case law illustrating a shift away from an exclusively genetic approach towards prioritizing the best interests of the child, particularly in cases where biological and social ties diverge. A comparative analysis of approaches in different common law countries highlights both the advantages (flexibility, individualization, focus on the child’s interests) and the risks (legal uncertainty, interjurisdictional conflicts, difficulties in recognizing foreign judgments) of implementing such models.Based on the research findings, the article formulates conclusions emphasizing the advantages and current trends in the legal regulation of determining a child’s parentage in common law jurisdictions. In particular, it notes the gradual recognition of intent as a criterion for establishing parenthood, the application of traditional presumptions regarding factual circumstances, and the interpretation of substantive legal norms by courts with a focus on safeguarding the best interests of the child.