Gonzalo Eduardo Díaz Ponce/The Santiago Times Staff
SANTIAGO – This week, the Second Family Court of Chile ordered the Civil Registry Service to register a child on his birth certificate as the son of two women.
“This is a historic triumph for diverse families; it is a further step in their recognition and protection. With this sentence, the State has ratified that same-sex couples are family, and both the couple and their children deserve the same protection under the law,” Juan Enrique Pi, president of Fundacion Iguales said.
Attilo José, the child of the two mothers called Emma de Ramón and Gigliola Di Giammarino, would set a precedent in the judicial history of Chile for future generations.
Previous data from a similar case can be seen in 2018, where the Supreme Court ruled on that case, stating that “an individual cannot have more than one father or more than one mother,” supporting the theory that a child cannot have two fathers or two mothers.
However, the Monday’s historical judgment changes justice perspective on behalf of those people who want to have a child.
On the other hand, some lawyers have disagreed with the court’s ruling, arguing that the Civil Code only grants filiation between a father and a mother, and that must be respected because otherwise it would be against the law. Actually, article 182 of the Chilean Civil Code states: ‘‘The father and mother of the child conceived through the application of assisted human reproduction techniques are the men and women who underwent them.’’
However, the sentence of June 8 judgment claims that ‘‘The non-application of article 182 of the Civil Code to this case implies a double attack on equality before the law: it deprives Attilio José of the recognition of his rights as the son of Emma de Ramón (who jointly submitted to the applicant to the Technical of Assisted Reproduction, and also affective, and is socially his mother), leaving him at a disadvantage compared to other children, who would have been born in the same conditions, but whose parents are a couple of different sex, with heterosexual orientation. And, in addition, it violates the right to equality before the law of the defendant, who, despite having participated in an assisted reproduction process together with her civil partner, concurring in her pro-creation will, cannot legally recognize the child born thanks to such a procedure.”
In this sense, we can see that the principle of all children are equal before the law must prevail in our legal system.
Is it time for a change in our Civil Code?