The Hungarian new family law: a legitimate answer to contemporary crisis

The Venice Commission is currently reviewing the Hungarian cardinal law on the Protection of Families. This law has been strongly criticised, especially for defining family as “based on the marriage of a man and a woman,” and for protecting human life since conception. The  European Centre for Law and Justice (ECLJ) submits today a Memorandum[1] to the Venice Commission demonstrating that this law respects the letter and the spirit of international treaties on family and follows the legitimate aim to set foundations for the recovery of the country through the protection of life and family.

 

On 23^rd December 2011, the Hungarian Parliament adopted Act CCXI of 2011 on the Protection of Families. It pursues the objectives to protect the children and families and to remedy the present demographic crisis. The law expresses that “the family is an autonomous community established in human history before the emergence of law and the State, which rests on moral grounds.” The law also recognises family as “the most important national resource of Hungary. As the basic unit of society the family is the guarantee for the nation’s survival and the natural environment of the development of human personality, which must be respected by the State”. This law takes concrete measures to ensure an effective protection of families, providing for a sort of family mainstreaming, in particular in the fields of employment and State support.

This law has been strongly criticised, especially for defining family as “based on the marriage of a man and a woman,” and for protecting human life since conception. Pursuant to those critics, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) requested the European Commission for Democracy through Law (known as the Venice Commission) to give an opinion on this law. This opinion is under preparation and will be adopted and published during its next plenary session, in June 1012, along with four other opinions. Today, in anticipation to this Opinion, the ECLJ submits a Memorandum assessing this law with regard to the international commitments of Hungary to the Venice Commission.

The ECLJ Memorandum observes that the Hungarian cardinal law on the protection of families, both in its philosophical basis and concrete measures, is in accordance with international and European law, in particular with the European Social Charter[2] and the 1989 Convention on the Rights of the Child which states, inter alia, that “the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”.

Concerning the issues of abortion and homosexuality, the Venice Commission already acknowledged, in its 2011 opinion on the new Constitution of Hungary^[3], that Hungary respects European and international law while defining marriage as the union of a man and a woman and protecting of human life since conception[4].

This law has been adopted in the context of both a demographic and economical crisis. The economic and financial situation in Hungary is highly problematic. At 1.33 children per woman, Hungary has the third lowest fertility rate across the OECD. The demographic issue is now a matter of survival for the country. Establishing the necessary conditions for child-bearing and child-rearing is the responsibility of the State, and that is the aim of the law at issue.

This law corresponds to present concerns such as the link between stable families and demography and the role of the family during a crisis. State support for families, reconciliation between work and family and promotion of parenting are increasingly recognised as necessary to ensure adequate conditions for child-bearing and child-rearing. In the past months the Parliamentary Assembly of the Council of Europe (PACE) adopted several resolutions emphasising the importance of stable families in time of crisis and taking “the view that demographic changes, low birth rates, population ageing and women’s increasing participation in the workforce are some of the factors which are driving societies to invest in human capital by adopting dynamic family policies.” [5]

Finally, it clearly appears that the criticisms regarding this law are unjustified and only based on ideological prejudice regarding abortion and homosexuality. In fact, this law, while fully respecting the letter and the spirit of international treaties provisions on family, tries to set the foundations for the demographic and economic recovery of the country, which requires the protection of life and family.

 

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