Análisis jurídico de los derechos vulnerados por la negativa de inscripción de una menor en el caso de doble maternidad

Abstract

In this paper, the sentence issued by the Constitutional Court of Ecuador will be analyzed in Case No. 1692-13-EP, Judgment No. 184-18-SEP-CC, focused on the analysis of the legal figure of the affiliation as a fundamental right of homoparental families; the specific case is about the petition that Nicola Susan Rothon and Helen Louise Bicknell made to the Director of the Civil Registry, Identification and Certification to register her daughter Satya Amani with her two maternal surnames; double maternity as a legal figure was not provided for in the Ecuadorian legal system, because the Civil Registry, Identification and Certification Law in its article 32 established as a requirement for the registration of the minor, the names and surnames, and nationality of the father and the mother, so based on the fact that our legislation did not contemplate this possibility, being a family formed by two women, by trade they denied the inscription of the child with the two maternal last names. In order to understand the depth and importance of the present work, it is crucial to be able to understand the different conceptual terms referring to the present case, taking into account that the family as a concept from its most traditional conception as the union between a man and a woman in order to have children throughout life, but without ignoring the evolution of this concept, because the good family and the various types of people who have integrated it have changed, leading to a different social reality from the traditionally acceptable one, which has as a result a wide range of family types, in addition to marriage is no longer the only legal institution of the family in society, because many couples choose not to marry, and therefore, to protect their rights they He created a new legal figure, adapting the different laws to this reality, configuring the de facto union. Due to scientific advances over the centuries, in recent decades human reproduction is no longer exclusive to heterosexual couples, due to the different techniques of assisted human reproduction, created in their time to help traditional couples to have children Due to different difficulties they presented, it is no stranger to the reality that these techniques were also adopted by same-sex couples, who through planning and their willingness to procreate and start a family, decided to have children through the help of these techniques, because to this eVolution and to the social practices derived from these techniques, the forms of affiliation, that is, the way of creating family ties, had to adapt to this new reality, to protect the unique purpose of the society that is the family, guaranteeing all the different types of families have the right to exist, obeying principles and human rights of application universal n. The legal-doctrinal analysis will deepen the principles and rights violated, which are the following: effective judicial protection, due process in the guarantee of motivation, personal identity in relation to obtaining nationality, equality and non-discrimination, the family in its various types, and the principle of best interest of girls, boys and adolescents; The scope of this failure will also be analyzed, regarding the use of assisted reproduction techniques. In addition to reviewing the performance, and the importation of the direct application of the different servers, public and judicial officials, so that from the moment they know certain cases that although they may not be contemplated and developed in the law they can act according to the constitutional principles; This type of case study allows us to analyze the rights principles, from a guarantee perspective, obeying the progressivity of the law.