Legal Protection of the Institutional Value of Marriage
Legal Protection of the Institutional Value of Marriage

Summary/Abstract: The Charter of the Rights of the Family states that the right to marriage and family is one of the fundamental human rights, which should be protected by legislation within legal systems. This paper attempts to assess how the institution of marriage is protected by the public authorities under European and Polish law. An analysis of the Polish and European legal systems shows that although each of them declares protection of the marriage and family, neither actually provides such protection. Although the Polish law appears to be a quite strong anchor of the “traditional” family concept (especially as compared to regulations of other European countries), it clearly reveals echoes of intellectual trends requesting an extension of the sphere of marital and parental rights of homosexual partners. Given the lack of legal regulations concerning such a significant domain as in vitro fertilization, as well as the lack of any norms governing the social status of transsexual persons after sex-change surgery, the question of whether the status quo of the family will remain in the Polish legislation in an unchanged form raises serious doubts. Nevertheless, a high degree of relativism concerning the protection of the institution of marriage is observed in the European law, which not only has explicitly extended the notion of “family life” to include any forms of relationship, but also sees the guarantee of the concept of equality in the pluralism of the concepts and models of the family. The redefinition of marriage and the family in the European law has already become a fact and its acquisition into legal orders of other Member States (even those as conservative as Poland) may only be a question of time.

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