ABSTRACT
The right to
identity and biological origin is a fundamental pillar in the exercise of human
rights and in the integral development of children and adolescents. The
declaration of paternity post mortem has become an issue of growing relevance
in Ecuador, highlighting the need to reconcile respect for fundamental rights
with ethical, cultural and family implications. Through an analysis of the
current legislation and jurisprudence of Ecuador in comparison with the norms
of other countries in the region, legal gaps are identified with respect to the
declaration of post mortem paternity and post mortem filiation by assisted
human reproduction techniques. The objective of this article is to analyze from
a legal and social perspective the implications of the recognition of post
mortem paternity in the Ecuadorian legal system, identifying legal gaps,
bioethical challenges and proposing recommendations to strengthen the current
regulatory framework. The methodology employed is qualitative through
documentary review and critical discourse analysis. The results indicate that
Ecuadorian legislation lacks a chapter on the recognition of post-mortem
paternity and post-mortem filiation through assisted human reproduction
techniques.
RESUMEN
El derecho a la identidad y el origen
biológico es un pilar fundamental en el ejercicio de los derechos humanos y en
el desarrollo integral de niños, niñas y adolescentes. La declaración de
paternidad post mortem se ha convertido en un tema de creciente relevancia en
Ecuador, poniendo de manifiesto la necesidad de reconciliar el respeto a los
derechos fundamentales con las implicaciones éticas, culturales y familiares. A
través de un análisis de la legislación vigente y jurisprudencia de Ecuador en
comparación con normas de otros países de la región se identifican vacíos
legales con respecto a la declaración de paternidad post mortem y filiación
post mortem por técnicas de reproducción humana asistida. Este articulo tiene
como objetivo analizar desde una perspectiva jurídica y social las
implicaciones del reconocimiento de la paternidad post mortem en el
ordenamiento jurídico ecuatoriano, identificando vacíos legales, desafíos
bioéticos y proponiendo recomendaciones para fortalecer el marco normativo vigente.
La metodología empleada es cualitativa mediante la revisión documental y
análisis crítico del discurso. Los resultados indican que la normativa de
Ecuador carece de un capítulo que refiera sobre el reconocimiento de paternidad
post mortem y sobre la filiación post mortem por técnicas de reproducción
humana asistida.
Keywords / Palabras
clave
Best interests
of the child, Declaration of post mortem paternity, Legal gaps, Right to identity
Derecho a la identidad, Declaración de
paternidad post mortem, Vacíos legales, Interés superior del niño.
Introduction
In order to
approach the subject in a clear way, it is necessary to start by pointing out
what filiation is, since the team of Sierra Abogados & Inversiones (2022)
defines it as that link that unites parents and children, in such a way that a
civil status is generated, which gives way to rights and obligations.
On the
other hand, the Library of the National Congress of Chile (2022) states that
filiation is that relationship of lineage in which the participation of the
father, the mother or both is seen, and also states that this filiation can be
established by nature, by assisted reproduction techniques or by adoption.
On the
other hand, the RAE (2023) defines this figure as that relationship of a legal
nature between two subjects, in which one of them comes from the lineage of the
other, this filiation can be by natural or legal causes, which generates rights
and obligations to the parties.
Filiation
and the rights of children and adolescents are widely regulated in the
Ecuadorian legal system through various constitutional and legal norms and
international treaties. However, a detailed analysis of the legislation in
force in the year 2024 reveals significant regulatory gaps with respect to the
recognition of paternity after the death of the presumed father, a situation
that has generated legal uncertainty and difficulties in the effective
application of fundamental rights.
Article 45
of the Constitution of the Republic of Ecuador (2008) explicitly states that
the State has the duty to guarantee life from the conception of the unborn
child and also emphasizes that the identity of children and adolescents is
guaranteed, the right to have a family and to enjoy the coexistence of the
same, as well as the right to be informed of their absent parents and
relatives. However, the Magna Carta does not expressly address the particular
situation of the recognition of paternity post mortem, which has generated
divergent interpretations by the operators of justice.
In
accordance with the above, art. 20 of the Childhood and Adolescence Code (2003)
states that the State has the obligation to guarantee the right to life from
conception, as well as its survival and development. In the same line, article
21 emphasizes that every child and adolescent has the
right to know his or her parents and other family members, while establishing
an affective relationship with them. In spite of these guarantees that are
indicated in this legal body, the violation of these rights is seen in the
cases of recognition of paternity post mortem, due to the fact that there is no
regulation or chapter that clearly addresses this problem.
Assisted
human reproduction is understood as that technique and set of medical
treatments that make pregnancy possible when it is not obtained naturally.
These techniques include artificial insemination and in vitro fertilization;
artificial insemination is characterized as a simple procedure in which the
sperm are introduced into the woman's uterus, as would occur naturally, while
in vitro fertilization consists of joining the egg and the sperm and once the
embryo is fertilized it is grafted into the woman's uterus (Paraíso, et al.,
2021).
On the
other hand, it is important to point out that, it is believed that this
assisted reproduction is possible only among the living, however, this
perspective changes, due to the fact that, fertilization can originate in a
post mortem way, understanding that this term refers to the use of the man's
semen after death in order for the woman to become pregnant (Salvador, 2017).
According
to the author Herrera (2017) this event has already been possible in several
countries:
One of
these cases arises in Argentina on November 21, 2011, in which the Family Court
number 3 of Morón, Province of Buenos Aires intervenes, in that case the couple
was in an assisted reproduction procedure, however, shortly after the husband
dies, so the woman requests the transfer of the genetic material that she and
her husband had established.
Another
case occurred on November 3, 2014, before the National Civil Court No. 3, in
which a woman requested semen samples from her dead husband for later use in a
post mortem procedure. The third case is given on December 30, 2015, it is
resolved by the Civil, Commercial, Lab. and Mining Court number 4 of Santa
Rosa, La Pampa, in which the transfer to the living wife of the embryos formed
by the sperm of the dead husband and the donated eggs is requested. Finally,
the last case also occurs in Argentina on June 13, 2016, as a woman in the
company of her in-laws requests that the genetic material of her dead husband
be extracted in order to later use it in an assisted reproduction procedure to
be able to conceive a child, to which, the national civil court with exclusive
competence in family matters number 87 of the Federal Capital authorizes the
request.
When examining the legislation of other countries in the region, different
regulatory approaches are observed to address the recognition of paternity post
mortem. For example, in Colombia, Article 7 of the Code of Childhood and
Adolescence (2006) expressly permits genetic testing after the death of the
presumed father, establishing specific deadlines and procedures. In contrast,
in Peru, although there is no express rule, based on the decision issued by the
Constitutional Court in case No. 06572-2006-PA/TC, 2007, this possibility has
been admitted in order to guarantee the right to identity and biological truth,
setting important precedents (CONSTITUTIONAL COURT, 2007).
In this
context, it is essential that the Ecuadorian legal system addresses in a clear,
specific, detailed and exhaustive manner the issue of recognition of paternity
post mortem. An adequate and updated regulation would provide legal certainty,
guarantee the effective exercise of the right to identity of children and
adolescents, establish clear and uniform procedures, avoid contradictory
interpretations by justice operators, and ensure the consistent application of
constitutional principles and international human rights standards.
Legal gaps in Ecuadorian legislation regarding Post Mortem Declaration of
Paternity: Legal and Social Perspectives
Absence of specific regulation: In Ecuador, the lack of specific regulation on
the recognition of post mortem paternity in the Civil Code generates
ambiguities in its application. Although the Constitution guarantees the right
to identity and the Organic Law on Identity and Civil Data Management allows
for the judicial declaration of paternity after death, the absence of a
detailed legal framework can lead to inconsistent judicial interpretations.
Cases are handled under general filiation provisions, which can result in
significant variations in judicial decisions.
In
contrast, Spain has more developed legislation in this area. Law 14/2006 on
assisted reproductive techniques specifically regulates post mortem
fertilization, and case law, such as Supreme Court Ruling 401/2013, has
established clear precedents. This ruling allows the determination of post
mortem filiation through biological testing, prioritizing the child's right to
know his or her biological identity and authorizing exhumation for DNA testing,
even without prior consent of the deceased. This difference in the legal and
jurisprudential framework between the two countries highlights the need for a
more specific regulation in Ecuador to provide greater legal certainty in these
cases.
Lack of
clearly defined terms: The Civil Code (2005) establishes that “paternity shall
be determined by birth” and that “the child may be recognized by the father
before or after birth” (ART. 249). However, no specific time limits are
established for initiating the post mortem paternity acknowledgment process.
This lack of clarity may generate legal uncertainty and potential inheritance
conflicts in the future, especially when long periods of time have elapsed
since the death of the presumed father.
3.-Ambiguity
in the determination of prior consent: The lack of clear criteria for
determining the prior consent of the deceased father reflects a significant
legal vacuum in Ecuador. This gap is particularly problematic in situations
where relationships are not formalized or documented. In cases of informal,
occasional relationships or without clear evidence of the parent's intent,
legal ambiguity can lead to complex disputes and inconsistent judicial
decisions. This situation contrasts with more developed legislation in other
countries, where there are specific protocols for assessing consent in cases of
post mortem paternity.
The absence
of defined criteria can have important implications for the rights of the child
to know his or her biological identity, as well as for inheritance rights and
other legal aspects related to filiation. It can also create uncertainty for
the families involved and complicate the judicial process. This legal ambiguity
underscores the need for legislative reform in Ecuador to establish clear
guidelines for evaluating consent in these cases, balancing the rights of the
child with the protection of the will of the deceased and the interests of
other potential heirs.
Lack of consideration of special situations: The current legislation does not
adequately consider exceptional cases that have become more frequent in today's
society, such as pregnancies through assisted reproduction techniques,
prolonged informal relationships, situations of concealment of pregnancy, among
others. This may hinder the fair and equitable resolution of these particular
cases, where a deeper and more detailed evaluation of the specific
circumstances is required.
Lack of clear guidelines on the best interests of the child: Although the
principle of the best interests of the child is enshrined in the Constitution
of the Republic of Ecuador (2008) and in international instruments ratified by
the country, there are no specific and detailed criteria for its application in
cases of post mortem paternity declarations. This lack of guidelines can lead
to subjective interpretations and inconsistent decisions by judicial
authorities, putting at risk the welfare and rights of the child involved.
7.-Lack of regulation on genetic testing: With the technological advances in
DNA testing, it is essential that the legislation establishes clear and
detailed guidelines on its admissibility, scope and procedures for its
performance in cases of post mortem paternity declarations. This is crucial to
ensure legal certainty, precise determination of filiation and avoid potential
future controversies or challenges.
Lack of
provisions on inheritance effects: The current regulations do not address in a
clear and detailed manner the inheritance effects that post mortem paternity
acknowledgment may have.
Materials and Methods
Within
school spaces, the bonds built with peers sustain the academic days, prevailing
in some occasions outside the school and building networks with characteristics
of a functional community in which its members mutually influence each other.
These networks are initially formed on the basis of cultural identification,
tastes, interests, common experiences, etc., in such a way that, once
consolidated, it becomes possible to build feelings of belonging, affiliation
and/or confidentiality, thus generating care networks that will have an impact
on the development and well-being of adolescents, inasmuch as:
“Social
networks (...) constitute an indispensable element for the health, adjustment
and well-being of the individual. The important aspect of support networks is
that they are emotionally significant people for the individual and are the
ones who potentially provide social support” (Orcasita
& Uribe, 2010, p.70).
Aranda
& Pando (2013), refer that:
“Two types
of networks can be distinguished: the informal (where the existing interactions
are mainly through the family, spouse, children, siblings, relatives and
friends), and the formal (where the interactions provided are mainly through
groups, organizations, social centers, health centers, etc.), and where all of
them, to a greater or lesser degree, are important and necessary in any
situation, whether critical or not” (p. 240).
From the
above, peer care networks provide resources that are difficult to reach from
other spaces or actors, since it is with peers that processes of
identification, belonging and protection are built in times of adversity, to
alleviate experiences of vulnerability or risk and the accompaniment to find
solutions to different situations safely according to the needs that arise.
Thus, mutual care, while preventing exposure to other possible events of
adversity, proposes that the lessons learned from this practice be transferred
to other stages of their lives. In this sense, peer care networks also promote
self-care, given that the expectation of contributing to the support of others
with whom they live implies responsibility and the use
of tools for their own benefit, which in turn means that the support of the
networks is further strengthened.
In the case
of mutual care networks among adolescent peers, a certain potential for action
is contemplated by finding shared characteristics among those involved, ranging
from physical, sociocultural and/or psychological conditions, which generate
identification and bonding, based on the certainty that they mutually
understand each other's conditions, as mentioned by Ardila et al. (2013) “(...)
peers have a vision of the sufferer as a similar other, and in this sense, they
make present what care is” (p. 466). From this perspective, mutual care
networks among adolescent peers are conceived as an element of support and
prevention for the experience of psychic suffering, since they can be a source
of trust and security for coping with such discomfort, promoting mutual care.
Support or
care networks, especially among peers, are an important strategy for reducing
the likelihood of risk situations arising in adolescents; however, when viewed
from the perspective of the context in question, it is possible to recognize
that, although these networks are implicit among them, they may not be closely
knit, or at the time they do not have adequate guidance and information to
provide timely care for others, leading to situations that invalidate
adolescents in their difficult situations, or else they use strategies that put
them at risk when caring (Hernández-Nava et al. 2020).
It should
be clarified that the sources and characteristics of psychic suffering in
adolescents are situated; in particular, this paper addresses the intervention
carried out with students from a high school in the municipality of Colón,
Querétaro, Mexico. The school has an enrollment of between 230 and 280
students, mostly of rural origin, belonging to communities where most of the
inhabitants know each other; usually the family represents an important
reference for life expectations and decision making in the short and medium
term. The form of socialization that occurs at school and therefore the
possibilities of forming care networks are influenced by community practices,
because although there is initially a certain openness to share with those
close to them their feelings, thoughts, experiences, etc., sometimes there is
some resistance to maintain this confidentiality, and much of the gap that
separates peers at this age has to do with the fear of being exposed, pointed
out and even betrayed, as these are experiences that they carry from their
lifestyles and that they reflect in other spaces of socialization.
In the
technical report of the Psychological Attention Service of the campus in the
semester prior to the beginning of the COVID-19 pandemic, it is indicated that
out of 255 students attended, 54 of them were for academic issues, 55 were
attended for school context situations, two more students attended to receive
Vocational Guidance, 46 people presented family situations and finally 76
students voluntarily attended to receive the service for personal situations.
It is worth noting that according to the figures reported, a large part of the
student body attended the service, and it is also observed that in some cases
the academic risk is generated as a result of intrapersonal or interpersonal
situations.
Based on the above, an intervention focused on peer care was proposed as the
main objective of this work.
Results
The results
obtained highlight the existence of significant regulatory gaps in the
Ecuadorian legal system regarding the recognition of post mortem paternity. The
absence of a specific, detailed and exhaustive regulation in the Civil Code
generates legal insecurity, interpretative ambiguities and difficulties to
effectively guarantee the right to identity of children in these exceptional
circumstances. This situation contrasts with the approach adopted by other
countries in the region, which have more updated and complete regulations in
this regard.
From a
social and family perspective, the findings show the complexity and depth of
the implications of the recognition of paternity after the death of the
presumed father. Social stigma, family conflicts, the need for psychological
support and the emotional impact on all parties involved are crucial aspects
that must be addressed from a holistic, interdisciplinary and culturally
sensitive approach. Current legislation does not provide adequate mechanisms to
address these issues, which could exacerbate trauma, violate rights and
undermine the overall well-being of those affected, especially the child.
One of the
most controversial and complex aspects identified are the bioethical challenges
and dilemmas surrounding reproductive rights, particularly in cases of the use
of assisted reproduction techniques with genetic material from deceased
persons. The tension between fundamental principles such as autonomy, human
dignity and the best interests of the child requires rigorous analysis and
careful weighing by the State and society. The absence of a clear and detailed
regulation on this practice generates a legal vacuum and lack of legal
certainty, hindering the effective protection of the rights and interests of
all parties involved.
As for
exhumation for DNA testing purposes, although Ecuadorian legislation
contemplates this possibility, it lacks specialized regulation that addresses
fundamental practical, ethical and cultural aspects. The lack of clear
protocols and mechanisms to guarantee respect for the traditions and beliefs of
the families involved, as well as the proper handling of biological samples and
the confidentiality of genetic information, could generate conflicts, violate
rights or violate the dignity of the deceased and their families.
The
patrimonial and inheritance implications derived from the recognition of
paternity post mortem show the urgent need for a clear, detailed and updated
regulation that provides legal certainty and avoids future disputes between
heirs and relatives. The divergent and contradictory jurisprudential criteria
on this matter reflect the lack of solid and uniform normative guidelines,
which could lead to prolonged legal conflicts and violations of the rights of
the parties involved.
The results
obtained highlight the urgent need for a comprehensive legislative reform in
Ecuador that specifically, comprehensively and in a multidisciplinary manner
addresses the issue of post mortem paternity recognition. This reform should
contemplate not only the legal aspects, but also the social, family and
bioethical aspects.
Conclusions
The
Ecuadorian legal system presents important normative gaps in relation to the
recognition of paternity post mortem. The Civil Code, the main body of law that
regulates family relations, lacks a specific chapter or section that addresses
this particular situation. This omission contravenes the principle of legal
certainty enshrined in Article 82 of the Constitution of the Republic of
Ecuador, which states: “The right to legal certainty is based on respect for
the Constitution and the existence of prior, clear, public and enforced legal
norms by the competent authorities.”
The lack of
defined deadlines and objective criteria for initiating the post mortem
recognition process violates the right to effective judicial protection,
recognized in Article 75 of the Constitution. This situation can generate
divergent judicial interpretations and inconsistent decisions, affecting the
predictability of the legal system and access to justice.
The
ambiguity surrounding the prior consent of the deceased father poses a conflict
with the principle of reproductive autonomy, derived from the right to personal
freedom (art. 66 numeral 5 of the Constitution) and the right to make free,
responsible and informed decisions on reproductive health and life (art. 66
numeral 10).
The risk of stigmatization and discrimination against children born in these
circumstances contravenes the principle of equality and non-discrimination
enshrined in Article 11, paragraph 2 of the Constitution. Furthermore, it could
violate the right to integral development of children and adolescents,
recognized in Article 44 of the Constitution.
The need
for psychological support and interdisciplinary accompaniment is based on the
right to integral health, guaranteed by article 32 of the Constitution, which
includes mental and emotional health.
The ethical
dilemmas surrounding the use of post-mortem genetic material should be analyzed
in light of the right to personal integrity, which includes physical,
psychological, moral and sexual integrity (art. 66 numeral 3 of the
Constitution). Likewise, the principle of human dignity, recognized as the
foundation of constitutional rights, must be considered in the weighing of
these cases.
The lack of
clear regulation on post-mortem assisted reproduction techniques contradicts
the constitutional mandate of article 11 numeral 8, which establishes that the
content of the rights shall be developed progressively through norms,
jurisprudence and public policies.
The absence
of specific provisions on exhumation and DNA testing in these cases may violate
the right to personal and collective identity, recognized in Article 66 numeral
28 of the Constitution. It is necessary to develop protocols that guarantee
this right in harmony with respect for the dignity of the deceased and the
cultural beliefs of the families, in accordance with the plurinational and
intercultural nature of the Ecuadorian State (art. 1 of the Constitution).
The
existence of divergent jurisprudential criteria in inheritance matters violates
the principle of equality before the law (art. 11 numeral 2 of the
Constitution) and the right to legal certainty. It is imperative to develop
specific legislation regulating inheritance rights in cases of post mortem
recognition, in compliance with the duty of the State to guarantee without
discrimination the effective enjoyment of the rights established in the
Constitution and in international instruments (art. 3 numeral 1 of the
Constitution).
The
recognition of post mortem paternity in Ecuador requires a comprehensive and
sensitive approach that considers not only the legal aspects but also the
social, family and emotional implications for all parties involved, especially
for the child. It is essential that Ecuadorian legislation be updated and
provide clear guidelines on how to weigh and apply the principle of the best
interests of the child in these cases, as well as interdisciplinary support
mechanisms to ensure a fair, balanced and proportional resolution that
safeguards the welfare and rights of all those involved.
The use of
assisted reproduction techniques with genetic material from deceased persons to
achieve post-mortem paternity recognition raises complex bioethical dilemmas
and challenges regarding reproductive rights. A comprehensive and
multidisciplinary approach is required to adequately weigh the ethical
principles involved, as well as the rights and interests of all parties
involved, with special emphasis on the protection of the best interests of the
child.
It is
crucial that the Ecuadorian legal system addresses in a clear, specific,
detailed and exhaustive manner the issue of post mortem paternity
acknowledgment. An adequate and updated regulation would provide legal
certainty, guarantee the effective exercise of the right to identity of
children and adolescents, establish clear and uniform procedures, avoid
contradictory interpretations by justice operators and ensure the consistent
application of constitutional principles and international human rights standards.
In
addition, the principle of the best interests of the child, enshrined in
Article 44 of the Ecuadorian Constitution and in the Convention on the Rights
of the Child, must be considered as a priority. This fundamental principle
should be the guiding principle in all decisions and actions involving minors,
including cases of determination of paternal filiation after the death of the
presumed father. Judicial and administrative authorities must ensure the
comprehensive protection of the rights of children and adolescents, promoting
solutions that guarantee their physical, emotional and psychological
well-being, as well as their full and integral development.
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