Judge Macarena Rebolledo, from the Second Family Court of Santiago, accepted the lawsuit filed by political scientist Gigliola Di Giammarino against her partner, historian Emma de Ramón, within the framework of a judicial strategy sponsored by the Fundación Iguales. In the sentence - the first of its kind - the filial rights of both women with respect to their son Attilio are recognized. The court officiated at the Civil Registry so that the child's birth certificate establishes that he is the son of two mothers.
"The duty of the Chilean State is to grant protection, without discrimination, to all forms of family that exist, and to strive to integrate them into national life. For this, it is essential that the marital status of a child born and raised in a family headed by people of the same sex, who have expressed a will to procreate, coincides with their legal affiliation and is reflected in their identification documents. ”
This is part of the historic sentence handed down by Judge Macarena Rebolledo Rojas -from the Second Family Court of Santiago- which, for the first time in Chile, orders the Civil Registry to register a child on his birth certificate as the son of two women . The ruling is the closure of a judicial strategy developed by the lawyer Juan Enrique Pi of Fundación Iguales and in which the case of the historian Emma de Ramón, his wife, the political scientist Gigliola Di Giammarino, and Attilio, were brought before family courts. her little son of 2 years and 9 months .
In December 2017, the Civil Registry refused to register De Ramón as the child's mother, arguing that the system could only register a mother and a father , so it was only registered as the son of Di Giammarino, who was the one who underwent the fertilization. assisted. The situation led both women to file an appeal for protection against the agency, which was rejected by the Court of Appeals and later by the Supreme Court.
It was then when Pi, seeking to exhaust national instances to go to international channels, decided that Di Giammarino filed a demand for recognition of filiation against De Ramón, with the purpose of recognizing the maternity of the son that both sought and, with it, the rights and duties that he has with respect to his son in legal and patrimonial terms . The legal action was filed in December last year and after a trial carried out in recent weeks, today the Second Family Court accepted the lawsuit and thereby ordered the Civil Registry to register Attilio as the son of his two mothers .
The arguments
In the sentence, to which the Third PM agreed , the reasoning outlined by Judge Rebolledo is read, which -among others- expresses the duty of the State of protection based on the best interests of the child and that any act that does not allow it to develop its Family identity, as, for example, a child born in a heterosexual family can do, is a discriminatory act and must be rectified.
"The hypothesis of an inequality before the law would be expressed on two levels: first, an inequality between the representation of the family that appears in the law and the specific family forms, while at a second level the immediate consequence of the first gap remains, that many de facto families are not considered as such, which causes specific problems in their daily lives, ”says the sentence.
The fact that the mother is not recognized, is detailed in the opinion, is a double attempt at equality before the law, not only with respect to Attilio, but also Emma, his mother. “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 Technique 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, furthermore, it violates the right to equality before the law of the defendant,who, despite having participated in an assisted reproduction process together with his civil partner, concurring in his pro-creation will, cannot legally recognize the child born thanks to such procedure ” . See more via La Tercera