Family disputes persons who are married and who have given their written consent to the use of assisted reproductive methods and technologies, if they have a child as a result of the use of these methods, are recorded by his parents in the register of birth certificates.
T. filed a lawsuit against U. to challenge paternity and exclude information about paternity, arguing that he was married to U., who on July 24, 2012, gave birth to a daughter, K. He has now learned that he is not the biological father of the child. In this regard, he asked to exclude information about his paternity from the child's birth certificate. By the decision of the Taraz City Court of October 13, 2020, the claim was dismissed. By the decision of the judicial board for civil cases of the Zhambyl Regional Court dated December 8, 2020, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court upheld the judicial acts of local courts on the following grounds. In accordance with paragraph 2 of Article 47 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), the child's descent from persons who are married to each other is confirmed by a certificate of marriage (matrimony) of the parents. According to paragraph 1 of article 192 of the Code, a father and mother who are married to each other are recorded by the child's parents in the birth register at the request of either of them. The basis for such an entry is a certificate of marriage (matrimony). It follows from paragraph 1 of Article 51 of the Code that the entry of parents in the register of birth certificates may be challenged only in court at the request of a person registered as the father or mother of the child, a person who is actually the father or mother of the child, the child himself upon reaching the age of majority, the guardian or trustee of the child, the guardian of the parent, declared legally incompetent by the court. According to paragraph 2 of article 192 of the Code, persons who are married and who have given their written consent to the use of assisted reproductive methods and technologies, if they have a child as a result of the use of these methods, are recorded by his parents in the register of birth certificates. The Judicial Board considered the judicial acts rendered in the case to be lawful and justified on the following grounds. It follows from the case file that the parties were married from 2004 to 2014. On July 24, 2012, U. gave birth to a daughter. From the record of the child's birth certificate dated August 9, 2012, No. 10-190-12-0005696, it follows that the information about the child's father is K. They were entered on the basis of a marriage certificate, according to the plaintiff. U. at the time of the child's birth, it was reliably known that T. was not the biological father of the child, since she underwent artificial insemination using a donor, and T. was aware of this.
Family disputes persons who are married and who have given their written consent to the use of assisted reproductive methods and technologies, if they have a child as a result of the use of these methods, are recorded by his parents in the register of birth certificates.
Disputing paternity, T. points out that he and U. had not had children for eight years. The parties applied to the Marriage and Family Medical Center LLP (hereinafter referred to as the Partnership) for infertility, underwent treatment, after which U. became pregnant and gave birth to a daughter. However, he later learned that he was not the biological father of the child. The local courts, rejecting the claim, argued that at the time of registration of the child's birth, T. It was known that the child was born from a donor, and from the moment the child was born, the plaintiff had been exercising parental rights and duties for a long time, and recognized himself as the child's father. The plaintiff is registered as the father on the basis of the marriage certificate and his statement, and therefore he has no right to challenge paternity. The Cassation Board considered that such a position of the courts in the case under consideration corresponded to the circumstances of the case and the requirement of the law. Thus, during the consideration of the case, it was established that at the time of registration of the birth of the child, the plaintiff was aware that he was not the father of the child, since during the examination of the couple he was diagnosed with "female infertility associated with a male factor," which is confirmed by the explanations of the partnership (L.D. 57). Despite these circumstances, the plaintiff, from the moment the child was born, exercised parental rights and duties, recognized himself as the father of the child, agreed to be the father of the child, actually knowing and understanding that he was not.
The court reasonably took into account that the claim for revocation of paternity was initiated by the plaintiff eight years after the birth of the child in connection with the defendant's filing a claim for child support. The plaintiff's awareness of the defendant's pregnancy during the marriage period is not from the plaintiff, which indicates his consent to paternity, so the courts legitimately refused to satisfy the stated claims. In these circumstances, the judicial board considers that the arguments of the petition are not grounds for a cassation review of judicial acts that have entered into force. The local courts have correctly established all legally relevant circumstances in the case. The arguments of the parties have been verified with sufficient completeness. The conclusions of the courts set out in the judicial acts comply with the norms of substantive law governing disputed legal relations, and are based on an impartial, complete and objective study of all the circumstances of the case.
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