The right of the born to biological truth

Luis Arechederra.
Full Professor of Civil Law, University of Navarra.

Child protection and children's rights are part of the legal background of our time. In many cases, the aim is to prevent abuses that shock the mentality of any Westerner: the marriage of a ten-year-old girl agreed upon by her father and her future husband. There is another subject of abuses that the same Westerner would not notice.

The free development of the personality was a value incorporated into our constitutional legislation after the Second World War caused by social visions that "disregarded" the individual. In this light, the Second World War ended "cold" and by demolition in 1989.

The free development of the personality, removed from its original context and imbued with the remnants of 1968, has set itself up as the arbiter of coexistence, dismissively rejecting any consideration that is alien to the individual person's dreams.

There is nothing unusual, in this context, about two lesbian women wanting to unite their lives and prolong them over time. And it goes without saying that, when they do so, they enhance their lives and the lives of others by sharing their joy with others in the form of children, offspring or descendants.

Moreover, homosexual cohabitation, whether in the form of a stable partnership or marriage, seems to claim its share of reality through procreation. However, homosexuality is essentially infertile. That is why homosexual offspring, homosexual filiation, is a voluntarist endeavour.

In the exhibition de Motivos de la Ley 13/2005, de 1 de julio, por la que se modifica el Código Civil en subject de derecho a contraer matrimonio, the legislator states the scope of this reform. It explains that same-sex marriage imposes a terminological change beyond the strictly matrimonial rules. In other words, when regulating the economic regime of marriage, it is preferable to speak of spouses rather than husband and wife because this Economics affects a man and a woman or two men or two women. The same applies to parental authority. Until now we have spoken of father and mother, but homosexual couples, whether married or in a stable partnership, can adopt and exercise parental authority over their adopted children. Therefore, the father-mother binomial does not fit in well with the duality of male-male, female-female.

However, as the legislator himself explains, "the reference letter to the husband and wife pair in Articles 116, 117 and 118 of the Code nevertheless remains, given that the factual assumptions referred to in these articles [filiation] can only occur in the case of heterosexual marriages". In other words, filiation is essentially heterosexual. This is the legislator's understanding. It can be said that the heterosexual character of filiation belongs to public policy.

Any rule that seeks to establish homosexual filiation is contrary to public policy. It matters little that a Provincial Court understands that two women hold the constant possession of mothers by reputation in a given locality. And it matters little because the social context known to status knows who gave birth, who is the mother and what is the relationship of the other woman with the child of the first woman. Those who are part of that social context know the existence of that relationship and therefore know that this relationship does not give rise to filiation. Therefore, this "socialstatus " does not manifest filiation and does not support the claim set out in article 131 of the Civil Code.

resource The claim of two lesbians to both appear on the registration of the birth of the child that one of them has given birth to by means of artificial insemination was already examined and rejected by the Order issued by the Judge of First Instance written request in charge of the Civil Register, which, upon appeal, gave rise to the Resolution of the General Administration of the Registers and Notaries on 25 June 2006 (B.O.E. 28-8-06). The latter rejected the resource and confirmed the appealed order. The General Administration underlined the obvious: the primacy that biological truth has acquired after the reform of the Civil Code by Law 11/1981, of 13 May. This decision took into account the recent case law of the Constitutional Court (SSTC 26 May, 9 June and 27 October 2005 and 16 February 2006) which has reinforced, through the analysis of Articles 133 and 136 of the Civil Code, the primacy of biological truth.

It matters little that, in the third paragraph of article 7 of Law 14/2006, of 26 May, on Assisted Human Reproduction Techniques, it legislates with its back to this constitutional doctrine, by admitting that "when a woman married, and not legally or de facto separated, to another woman, the latter may declare before the Civil Registrar of the marital home, that she consents that when the child of her spouse is born, the filiation of the child will be determined in her favour".

Homosexual parentage is possible: parentage resulting from adoption by a homosexual couple or marriage. But this filiation presupposes a heterosexual biological filiation. Adoption does not exclude the heterosexual origin of the adoptee. The new adoptive filiation extinguishes the original filiation by nature, which is recorded even when the adoption gives rise to a new registration birth. And the adoptee retains the right to free research of paternity guaranteed in article 39.2 of the Constitution.

But the gay movement despises adoption. registration "We are not going to accept what they are proposing [that one should be listed as the biological father and the other as the adoptive parent], because it would undermine the protection of children "1. This is how two married men expressed themselves when they heard that the Public Prosecutor's Office questioned the Resolution of the General Administration of the Registers and Notaries of 18 February 2009 which authorised two men and no woman to be listed on the birth certificate of two children. This resolution is based on the aforementioned third paragraph of article 7 of Law 14/2006, of 26 May.

The ruling of the Constitutional Court of 29 November 2005 maintains that "the mandate of the constituent assembly to the legislator to make possible the research of paternity is intimately connected with the dignity of the person (art. 10.1 of the Constitution), both from the perspective of the child's right to know his or her identity and from the configuration of paternity as a projection of the person".

The dignity of the born child demands that he/she should not be discriminated against by attributing to him/her a homosexual filiation which, firstly, is unreal and, secondly, differentiates him/her from other born children by attributing to him/her an existential genesis different from that of 99.9% of the population.

This attribution constitutes a constitutionally intolerable discrimination. The article 14 of the Constitution prohibits discrimination on the grounds of birth. In the same way that this article prevents the behaviour of parents from stigmatising children born out of wedlock, it prevents the peculiar understanding of sexuality by two people who, only in part, are their parents, from having an impact on the child.

For all these reasons, a judicial decision that attributes, in the registration of birth, a filiation that violates the biological truth can be appealed in amparo before the Constitutional Court. And the conference room which hears the resource amparo appeal must, in accordance with article 55.2 of the Organic Law of the Constitutional Court, refer to plenary session of the Executive Council the possible unconstitutionality of section third of article 7 of Law 14/2006, of 26 May, on Assisted Human Reproduction Techniques.