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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Brazil: Civil Code Amended to Exclude Heirs Who Kill for Inheritance

(Nov. 21, 2017) On November 9, 2017, the Brazilian Federal Senate approved the bill of law No. 9/2017, which amends the Civil Code to allow the Public Prosecutor’s Office to request the withdrawal of inheritance rights from heirs who have been the perpetrators of intentional homicide or attempted murder against the person who left the assets. (Projeto de Lei da Câmara [Chamber Bill] No. 9, de 2017; Código Civil [Civil Code], Lei No. 10.406, de 10 de Janeiro de 2002, PLANALTO.) The bill now must be signed by President Michel Temer to enter into force.

Article 1,814(I) of the Civil Code already determines that heirs or legatees who are the perpetrators of or co-conspirators or participants in an intentional homicide or attempted murder of a person who has made provision to leave them the assets, and the legator’s  spouse, companion, or ascendant or descendant relative, are excluded from the succession. However, the role of the Public Prosecutor’s Office had not been clear.  The amendment clarifies the Office’s role.

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Brazil: New Rules Approved for Assisted Reproduction

(Nov. 20, 2017) The Brazilian Federal Council of Medicine (Conselho Federal de Medicina, CFM) approved on November 9, 2017, Resolution No. 2.168, which updates the rules for the use of assisted reproduction techniques. (Resolução CFM No. 2.168/2017, DIÁRIO OFICIAL DA UNIÃO [OFFICIAL GAZETTE OF THE UNION] 73 (Nov. 10, 2017), CFM website; Reprodução Assistida: CFM Anuncia Novas Regras para Uso de Técnicas de Fertilização e Inseminação no País [Assisted Reproduction: CFM Announces New Rules for the use of Fertilization and Insemination Techniques in the Country], CFM website (Nov. 9, 2017).)

Freezing, Surrogacy, and Shared Gestation

The Resolution allows people with no diagnosed reproductive problems to take advantage of assisted reproduction techniques such as the freezing of gametes, embryos, and germinal tissue (tecidos geminativos).  This benefit also extends to patients who, due to certain medical treatments or the development of disease, may  become infertile. (Resolução CFM No. 2.168/2017, art. I (2).)

The Resolution extends permission to relatives in a descending degree of kinship to the woman concerned to temporarily lend their uterus to her.  Before the issuance of the Resolution, only the mother, grandmother, sister, aunt, or cousin of the woman concerned could be a surrogate mother (processo de gestação de substituição).  Now, daughters and nieces can also temporarily offer their wombs, andsingle persons also now have the right to use a surrogate mother.  (Id. arts VII (1), II (2).) 

The Resolution defines the concept of shared gestation, an option already permitted in cases of female same-sex unions.  According to the Resolution, the cases that fall into this situation are those in which an embryo obtained from the fertilization of a woman’s oocyte(s) is transferred to the uterus of her partner, even though there is no diagnosis of infertility involved. (Id. art. II (3).)

Discarding of Embryos

Under the Resolution, the minimum period for discarding an embryo created through assisted reproduction is reduced from five years to three.  The new criterion applies both to cases of patients’ express wishes and to situations of abandonment, characterized by non-compliance with a pre-established contract signed by patients with assisted reproduction services. (Id. art. V (4).)

Donation of Gametes and Embryos

The Resolution opens to women the option to voluntarily donate gametes, an option that was already open to men. The Resolution reaffirms that the maximum age for participation as a donor in any assisted reproduction process will be 35 years for women and 50 years for men.  Exceptions to the age requirement must be justified by the attending physician, who must support his or her decision and also prove that the person concerned is aware of the risks involved. (Id. art. IV (3).)

The Resolution further reaffirms that the maximum number of embryos that may be transferred is four, and that the number may be less according to the patient’s age: up to 35 years, a maximum of two embryos; between 36 and 39 years, up to three embryos; and 40 years or older, a limit of four embryos.  (Id. art. I (7). )

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Iceland/European Court of Human Rights: Dismissal of Defamation Claim Violated Right to Respect for Private Life

(Nov. 20, 2017) On November 7, 2017, the European Court of Human Rights (ECtHR) found that the Icelandic Supreme Court had erred in ruling against a claim of defamation, and “had not struck a fair balance between the applicant’s right to respect for his private life under Article 8 of the Convention [for the Protection of Human Rights and Fundamental Freedoms] and the right to freedom of expression under Article 10 of the person who had posted the remarks.” (Einarsson v. Iceland, App. No. 24703/15, ECtHR ¶ 53 (2017), HUDOC database.) The case was brought before the ECtHR under article 34 of the Convention,  which gives individuals the right to bring cases before the Court when they claim to be victims of non-adherence to the Convention by a Member state. (Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website.)

Under article 8 of the Convention, a person has the “right to respect for his private and family life,” a right that must be protected by the courts. This right includes the right to protection of one’s reputation (Einarsson v. Iceland, ¶ 33, citing Pfeifer v. Austria, App. Bo. 12556/033 and Petrie v. Italy, no. 25322/12), provided that the accusation causes “prejudice to personal enjoyment of the right to respect for private life.” (Einarsson v. Iceland, ¶ 34, citing Springer AG v. Germany [GC], App. No. 39954/08, Delfi AS v. Estonia [GC], App. No. 64569/09, & Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], App. No. 17224/11.)

The case at hand concerned a well-known Icelandic blogger who had been cleared of charges of rape. Shortly after the case was discontinued, someone called the blogger a “rapist bastard” on Instagram and posted a distorted picture of him. (Einarsson v. Iceland, ¶¶ 5-8.)  The blogger sued for defamation. The Icelandic court found that the statement did not constitute defamation, finding that the term “rapist” was used as invective during a heated online debate, and therefore was a “value judgment” protected by the right of free expression rather than a factual statement. (Id. ¶ 16.)

The ECtHR disagreed and noted that the remarks had been made shortly after the blogger had been freed of rape charges and thus were directly linked to a factual circumstance, a rape charge that had been dropped for lack of evidence. (Id. ¶¶ 50, 52.) The ECtHR found that the Icelandic court had failed to provide a sufficient explanation of its justification for finding that the word “rapist” was used in this case as a value judgment. (Id. ¶¶ 50-52.)

In conclusion, the ECtHR found that the statement was “of a serious nature and capable of damaging the applicant’s reputation. It reached such a level of seriousness as to cause prejudice to the applicant’s enjoyment of the right to respect for private life,” thus constituting a violation of article 8. (Id. ¶¶ 52.)

The Icelandic government was ordered to pay €EUR17,500 (about US$20,400) in damages to the applicant. (Id. ¶ 62(4)(a)(i).)

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Germany: Personal Status Act Must Allow Third Gender Option for Intersex People

(Nov. 20, 2017) In a decision published on November 8, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the Personal Status Act is incompatible with the German Basic Law, the country’s constitution, to the extent that it only allows the registration of a female or male gender at birth or no gender entry at all. It stated that forcing intersex people to register a gender but not offering a third positive option in addition to male and female violated intersex persons’ general right to personality and the prohibition on discrimination. (BVerfG, 1 BvR 2019/16, Oct. 10, 2017, BVerfG website (in German); Press Release No. 95/2017, Civil Status Law Must Allow a Third Gender Option (Nov. 8, 2017), BVerfG website; Personenstandsgesetz [PStG] [Personal Status Act], Feb. 19, 2007, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 122, as amended, § 21 ¶ 1 no. 3 & § 22 ¶ 3, GERMAN LAWS ONLINE; Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 2 ¶ 1 in conjunction with art. 1 ¶ 1, & art. 3 ¶ 3 sentence 1, GERMAN LAWS ONLINE (unofficial English translation).)

Facts of the Case

The complainant in the case has a condition called Turner syndrome, which results when one of the X chromosomes is missing, partially missing, or altered. In a person with Turner syndrome, female sex characteristics are usually present but are underdeveloped compared to an average woman. (1 BvR 2019/16, ¶ 10; Intersex Society of North America (ISNA), Turner Syndrome (last visited Nov. 13, 2017), ISNA website.) Currently, there are an estimated 160,000 intersex people in Germany. (1 BvR 2019/16, ¶ 10.)

The complainant’s birth certificate indicated the female gender. The complainant does not permanently identify as either male or female, however, and requested that the registrar’s office change the entry in the birth register to “inter/diverse” or simply “diverse.” The local registrar’s office rejected this request, stating that the Personal Status Act only allowed the registration of a male or female gender and that no entry was made if no gender could be assigned. (Id. ¶ 1.) The complainant’s appeals against the rejection were unsuccessful.  The complainant filed a constitutional complaint alleging a violation of the general right of personality (Basic Law, art. 2 ¶ 1 in conjunction with art. 1 ¶ 1) and discrimination based on gender (Basic Law, art. 3 ¶ 3 sentence 1).  (Id. ¶¶ 11-15.)

Decision

The Federal Constitutional Court held that the provisions of the German Personal Status Act at issue in the case violate the complainant’s general right to personality, which includes gender identity. It stated that the gender identity of persons who cannot be assigned either the male or the female gender is protected under this right. (Id. ¶ 36.) The Court reiterated that the general right to personality ensures that individuals may autonomously determine and develop their own personalities.  Gender identity is a “constituent part of someone’s identity,” the Court stated, and “gender assignment … typically plays a key role both in a person’s self-perception and in the way this person is perceived by others.” (Id. ¶ 39.) The Court further opined that gender assignment plays an important role in everyday life; for example, it determines legal rights and duties connected to gender and allows the identification of a person. (Id.)

The Court stated that as the Personal Status Act only allowed the option of registering a female or male gender and that no gender was registered if the child’s gender could not be determined, an intersex person had to accept an entry that did not correspond with that person’s gender identity. (Id. ¶ 42.) The Court added that the option of crossing out the female gender entry and then not making any gender entry at all also violated the complainant’s constitutional rights. The complainant does not permanently identify as either male or female, but also does not identify as genderless but rather as having a gender beyond male or female. (Id. ¶ 43.) In the Court’s view, civil status is not a marginal issue; rather, it determines the “position of a person within the legal order” and defines the central aspects of the legally relevant identity of a person. Denying individuals the recognition of their gender identity in itself therefore threatens the self-determined development of their personality, according to the Court. (Id. ¶ 45.)

The Federal Constitutional Court concluded that the infringement of the complainant’s constitutional right was not justified. (Id. ¶ 49). It explained that the German Basic Law did not require that personal status be binary in terms of gender, meaning it neither required that gender play a role in regard to personal status nor that a third gender option in addition to female and male not be recognized. It further stated that the fact that the Basic Law speaks of equal rights for men and women and that the Court itself has stated in earlier decisions that the legal order and social life are based on the guiding principle that every person is either male or female does not mean that the Constitution requires that gender options be binary; it only reflects the social and legal understanding of gender at the time of the Basic Law’s adoption and at the time that the Court rendered its decisions on the subject. (Id. ¶ 50.) The Court held that the possibility of registering a third gender does not force anyone to assign themselves that gender. (Id. ¶ 51.)

The Court further ruled that even though there might be a slightly increased bureaucratic and financial burden for the registrar’s office for an interim period, this does not justify denying someone the right to register a third gender that conforms to their gender identity. However, the Court emphasized that this right does not mean that a person may register random gender-related identity features as personal status information. (Id. ¶ 52.) In addition, the Court pointed out that allowing a third gender entry in addition to male and female raises the same questions that have to be asked under current law when no gender entry is made. (Id. ¶ 53.)

With regard to the prohibition on discrimination based on gender, the Court held that the provisions of the Personal Status Act at issue in the case also violated this principle. The Court reiterated that gender may not serve as a basis for unequal legal treatment. In this case, intersex people who do not identify with the female or male gender are treated unequally, because, unlike men and women, they have no possibility of registering a gender that conforms to their gender identity. (Id. ¶ 57.) The Court stated that the purpose of the equal treatment clause of the Basic Law is to “protect members of groups that are structurally prone to being discriminated against” and that “the vulnerability of persons who identify neither as female nor as male is particularly high in a society that is mainly based on binary gender.” (Id. ¶ 59.)

The Federal Constitutional Court declared the relevant Personal Status Act provisions incompatible with the Basic Law. It stated that the legislature could either completely abolish the requirement of registering a gender at birth or allow intersex people the option of registering a third gender. It pointed out that the legislature is not restricted to the terms “inter” or “diverse” suggested by the complainant. (Id. ¶ 65.) It set a deadline of December 31, 2018, for the amendment of the Personal Status Act. Courts and public authorities are henceforth enjoined from applying the current relevant provisions. (Id. ¶ 66.)

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Indonesia: Constitutional Court Opens Way to Recognition of Native Faiths

(Nov. 17, 2017) On November 7, 2017, Indonesia’s Constitutional Court (Mahkamah Konstitusi Republik Indonesia) issued a decision that will allow Indonesians who follow native faiths to list their religions on official forms.  According to Justice Arief Hidayat, several articles in the Law on Population Administration are discriminatory and “contradict the 1945 Constitution and these articles are not legally binding.”  (Marguerite Afra Sapiie, Constitutional Court Rules Indigenous Faiths ‘Acknowledged’ by State, JAKARTA POST (Nov. 7, 2017);  Undang-Undang Republik Indonesia Nomor 23 Tahun 2006 Tentang Administrasi Kependudukan [Law of the Republic of Indonesia No. 23, 2006, on Population Administration] (Dec. 29, 2006),  House of Representatives website; Law 24 of 2013 on Amendment to Law 23 of 2006 on Population Administration (Dec. 24, 2013), REFWORLD.)

The Law had required that followers of religions other than the major faiths leave the line for religion blank on their national ID cards.  The Court decision came as a result of the challenge to the Law filed by four people who follow indigenous religions, whose argument was that the Law violated the ideal of equality before the law.  According to the Ministry of Culture and Education, Indonesia has at least 12 million followers of 1,200 native faith groups.  (Sapiie, supra.)  The explication attached to the Indonesian Law on Blasphemy states that Indonesia officially recognizes six major religions: Islam, Protestantism, Catholicism, Buddhism, Hinduism, and Confucianism.  (Penjelasan Penetapan Presiden Republik Indonesia Nomor 1 Tahun 1965 Tentang Pencegahan Penyalahgunaan Dan/Atau Penodaan Agama [Explanation of Presidential Decree No. 1 of 1965 on Prevention of Misuse of Religion and/or Blasphemy] (Jan. 27, 1965), HUKUMONLINE (click on pdf icon); Moses with Ompusunggu, Rights Group Welcomes Landmark Court Ruling on Native Faiths, JAKARTA POST (Nov. 7, 2017).)

Commenting on the issue, Justice Saldi Isra said that the disputed articles of the Law on Population Administration had created trouble for followers of faiths other than the major six, including problems in obtaining e-ID and family registration cards, marriage registration, and access to services provided by the civil administrative offices.  (Sapiie supra.)  Saldi added that now followers of native faiths should, when filing for family registration and e-ID cards, indicate that they are native faith followers (penghayat kepercayaan) and that they do not need to add other details.  (Id.)

Tigor Naipospos of the Setara Institute noted that Indonesians not identified with one of the major religions faced limits in education and employment, as well as marriage registration.  (Tom Allard & Jessica Damiana, Indonesian Court Recognizes Native Religions in Landmark Ruling, REUTERS (Nov. 7, 2017).)  The Setara Institute describes itself as founded by people “dedicated to the ideal that everyone should be treated equal while respecting diversity, giving priority to solidarity and upholding human dignity.”  (Setara Institute Profile, Setara Institute website (last visited Nov. 9, 2017).)

Reactions to the Court Decision

The Setara Institute welcomed the Constitutional Court decision, stating that it could put an end to the discrimination faced by religious minorities and that “[i]deally the state would not discriminate against its citizens when they declare their religious identity on the population administration register.”  (Ompusunggu, supra.)  Tjahjo Kumolo, the Home Minister, said that his ministry would coordinate with other government offices to comply with the Court ruling and compile data on native faiths.  The Home Affairs Ministry, he said, would incorporate information on those faiths in the population administration system.  (Id.)  Nia Sjarifudin of the Unity in Diversity Alliance opined that the ruling would also apply to followers of Baha’i and Judaism, faiths that are not indigenous to Indonesia but are not among the six religions that are formally recognized.  (Allard & Damiana, supra.)

Indonesia’s House of Representatives is planning to revise the Law on Population Administration (also known as the Civil Administration Law).  Zainuddin Amalia, the chair of the House Commission on Home Affairs, said on November 8 that a meeting would be held after the end of the current House recess period on November 15, to discuss a revision.  (House to Revise Civil Administration Law in Wake of Court Ruling, JAKARTA POST (Nov. 8, 2017).)

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