Oñati Socio-Legal Series

Alliance between the right to identity and the right to family life as a constitutional/conventional basis to rethink adoption in a contemporary key

Marisa Herrera — Mon, 03 Feb 2025 00:00:00 +0100

In this essay we propose to rethink the centrality of the right to identity as the base human right or backbone of the adoptive legal system in Argentine law. It happens that the right to identity, although always in a relational context such as that contained in filiation, focuses on the satisfaction and protection of people as such, would encounter certain limitations when delving into all interactions – beyond the binarism. relational – that involve certain contemporary problems of adoption. For the purposes of this interpellative task, we are encouraged to get into the ring and thus dispute this centrality in light of the development of the right to family life, taking arts as a starting point. 17 of the ACHR and 8 of the ECHR with the consequent dynamic interpretation carried out by the Inter-American Court of Human Rights and the European Court of Human Rights.

Critical analysis of open adoption

Maria Aranzazu Calzadilla Medina — Mon, 03 Feb 2025 00:00:00 +0100

At times, the adoption of children over the age of twelve in Spain hasn´t succeeded because they didn´t give their consent upon learning that they would no longer have a relationship with someone from their biological family. Since 2015, the Spanish Civil Code allows, whenever it´s in the interest of the person to be adopted, for an adoption to be established by setting up a visitation and communication regime in favor of members of the biological family. In this study, employing the methodology inherent to the Science of Law, a novel analysis of this form of adoption is conducted, outlining its pros and cons, with emphasis on the legal prioritization of beneficial emotional relationships, ensuring acknowledgment of origins. Furthermore, it enables the deinstitutionalization of those who can no longer return to their biological family and are under the guardianship of the Public Administration.

Socio-affectiveness and alternative figures of care for girls, boys and adolescents in Argentine legal praxis

Federico Pablo Notrica — Mon, 03 Feb 2025 00:00:00 +0100

Both the legislation and the doctrinal and jurisprudential creation have begun to recognize the notion of socio-affectivity as a structuring element of family relationships among its members, often granting it primacy over the biological bond or relationships derived from kinship. Although affection has always been a constitutive component of human relations, the classical approach refused and refuses to recognize in it a source of Law and, as such, share the halo of legitimacy that kinship ties have enjoyed since ancient times. This resistance was able to generate many problems in reality, since the lack of legal recognition in some of the figures ruins the advances in the field of human rights. A clear example in Argentine legislation turns out to be the contents of articles 611, 643 and 657 of the Civil and Commercial Code on the prohibition of de facto guardians except the kinship bond between parents and guardians; or the delegation of the exercise of parental responsibility and the granting of custody of a child or adolescent, limiting it only to a relative. Well, while this legal limit occurs, reality prevails and, in some cases, the affective bond overlaps the biological one, owing value to the guiding principle of the best interest of the child to solve the problem raised. From this, the present work will try to demonstrate, through the analysis of the jurisprudence, the solutions reached that combine said guiding principle with the notion of socio-affectivity.

Right to family lives and stepparent adoption in Chile

Rommy Alvarez, Fabiola Lathrop — Mon, 03 Feb 2025 00:00:00 +0100

The various family forms present in our societies impose on the Law the challenge of making them visible in recognition of the essential prerogatives of their members, particularly, sons and daughters as children and adolescents. Among these, those that find their substrate, beyond the biological nexus, in the socio-affective component, become relevant when it comes to recognizing the right to family lives, to personal identity and the way through which the system grants them due legal framework. This work, taking into consideration contributions from various systems, aims to analyze the Chilean situation by critically observing the institute of step parent adoption; review provisions currently incorporated in the regulations that express, to some extent, dimensions of socioaffectiveness in de facto filial relationships; and, finally, examine certain jurisprudential trends in the same sense, using for this purpose the dogmatic method typical of legal science in a task of description, exegesis and systematization.

Adoption based on socio-affectiveness not subject to age limits

Sonia Seba — Mon, 03 Feb 2025 00:00:00 +0100

From a critical socio-legal and comparative law position, based on the Argentine experience, it is proposed to show how adoption based on socio-affectivity is not subject to age limits, but what prevails is respect for the right to family life, coexistence or everyday life and affection. In this study, following the guidelines of the uniqueness with which cases must be addressed, some examples from Argentine jurisprudence are shared in which adoptions involving persons of legal age have been resolved, based on socio-affectiveness. The sanction of the Civil and Commercial Code of Argentina, in 2014, marks an advance in socio-affectiveness in family relationships, as well as in the resolution of cases with tailored sentences, informal judicial activity, interdisciplinary and specialty.

Adoption in Spain

Pilar Benavente Moreda — Mon, 03 Feb 2025 00:00:00 +0100

The adopted’s right to know their origins constitutes an essential manifestation of the right to identity and free development of the personality of adopted persons, regulated by the articles 180, 5 and 6 of the Spanish CC and the articles 12 and 5, 1, i) of Law 54/2007, of December 28, on International Adoption. The adoptee can not only request data on his or her biological origin but also information on the identity of his or her parents and their biogenetic data. This right may conflict with the right to privacy and data protection of biological parents and family. This paper presents the double public/private aspect of the right to know the origins of adopted people. On the one hand, its extension and limits are analyzed in confrontation with the rights to privacy, intimate family and personal life and data protection of the family of origin and, on the other, we analyze the actions of Public Entities and the administration to guarantee its exercise and effectiveness. This paper is completed with the most recent jurisprudential analysis.

The declaration of adoptability situation at a crossroads

Natalia de la Torre — Mon, 03 Feb 2025 00:00:00 +0100

This paper investigates a topic that is booming in Argentine jurisprudence: the declaration of the adoptability situation of children based on the informed, thoughtful, and autonomous decision of their parents -generally women who decide not to exercise their maternity– to give their child for adoption considering the obligatory gender perspective, in line with the rights of children. With this objective as a goal, the regulation of the judicial declaration of the situation of adoptability and the autonomous decision to give a daughter or son for adoption is synthesized, the exception being that the declaration in a situation of adoptability is not appropriate if a referent of the family of origin or extended family is able to take care of the child and its complementarity with the best interest of the child. At the same time, the paths taken in Argentine jurisprudence regarding the birth of children after hindering the legal interruption of pregnancy are critically analyzed.

The adoption by persons with disabilities

Alma María Rodríguez Guitián — Mon, 03 Feb 2025 00:00:00 +0100

According to Article 23 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) States Parties shall ensure the rights and responsibilities of such persons with regard to adoption of children. This article has a limited application in practice due to a traditional prejudice towards sexuality and motherhood/parenthood of these people, even proposing the adoption of their biological children. This contribution focuses on the analysis of the configuration of adoption in the aforementioned Article 23.2 CRPD, based on significant examples of Comparative Law. First, it studies the health and financial requirements for adopters, which often hide direct or indirect discrimination against the people with disabilities. Second, this paper explores the meaning of the concept of `supportˊ, which is aimed at ensuring that persons with disabilities can adopt on an equal basis with others. Third, it analyzes the scope of the expression ˊin all cases the best interests of the child shall be paramountˊ, with a view to examining whether it jeopardises the effectiveness of Article 23.2 CRPD in practice.

Family strengthening, for all?

Silvia Eugenia Fernandez, Mariela González de Vicel — Mon, 03 Feb 2025 00:00:00 +0100

By means of the epistemology of intersectionality, three categories are brought together and questioned in the implementation of public policies for family strengthening in the child protection system: childhood, gender and disability. Women with disabilities, considered strangers to traditional hegemonic and patriarchal mandates, challenge the exercise of motherhood under criteria that are overvalued and demanded compared to women with psychosocial or intellectual disabilities. They challenge the prevailing mandate of hegemonic motherhood, which does not conceive of other designs for the exercise of the constitutional and conventional right to family life. States have the obligation to design support systems (arts. 12 and 19 CRPD) so that women with disabilities are not separated from their children because of their disability. Children and adolescents have the right not to be discriminated against because of the condition/situation of their parents (art. 2 CRC) and to be raised by them (art. 9). Support systems should be effective public policies for strengthening families so that children can remain in the care of their mothers in accordance with their best interests and so that mothers can exercise their maternity on an equal footing with other persons, as mandated by the Constitution.

Wrongful adoption: who is liable?

Andrea Macía Morillo — Mon, 03 Feb 2025 00:00:00 +0100

The article analyzes the possible claim that may arise in the context of an adoption when the adoptive parents are not informed of certain conditions of illness or disruptive behavior present in the adoptee prior to the constitution of the adoption. Based on the US experience in relation to wrongful adoption actions, it is studied whether it would be possible to file a parallel liability claim in the field of Spanish Law or there are significant differences between both systems that justify their rejection in our legal system. Beyond studying whether the alternative of ending the relationship legally created by means of an annulment of the adoption fits in such cases, the analysis focuses on the most problematic issues regarding the possible claim, namely the damage and the subjective imputation parameter, and whether such a remedy is the most appropriate to solve this type of problems.

The current situation of intercountry adoption in Spain

Juan Pedro Díaz Senés — Mon, 03 Feb 2025 00:00:00 +0100

Intercountry adoption is a young institution that, after experiencing a boom at the beginning of the 21^st century is currently immersed in a period of decline. The years 2020 to 2023 have been especially notable in this matter in Spain, as a consequence of the jurisdiction conflict, resolved by STC 36/2021, as well as the COVID-19 crisis, causing China to restrict international adoption. This paper analyzes the features that have characterized intercountry adoption in its different stages and the factors that have led to its evolution, focusing on the study of the successive regulatory swings that have occurred in Spain. As a result of this study, it is observed that, beyond the current circumstances brought about by the COVID-19 crisis, this institution currently has a residual weight that is increasingly in line with the principle of subsidiarity, recognized by the Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption.

“Squatters”: The problematic constitutionalization of private property

Juan Sebastián Alejandro Perilla Granados — Mon, 03 Feb 2025 00:00:00 +0100

Within the framework of the Spanish Social Rule of Law there is the citizen initiative movement called “okupa”, which emerged as an initiative to promote cultural aspects with social commitment in unused private goods. But today it consists of its members occupying real estate permanently without the authorization of the owner. Faced with this situation, a regulatory framework has been consolidated with a guarantee approach, which implies that only in specific cases of violation of constitutional rights are immediate evictions proceed and when it comes to matters of private law, prolonged processes must be carried out that affect negatively to the owners of the occupied property. To critically analyze the “squatters” movement, a hermeneutical framework of the Social State is presented and the impacts that exist from there are described. To achieve this, a critical hermeneutic research approach based on qualitative methods is adopted.

ETA strategies

Caroline Guibet Lafaye — Mon, 03 Feb 2025 00:00:00 +0100

Euskadi Ta Askatasuna (ETA), a clandestine organisation formed in the late 1950s, dissolved after sixty years of existence. To date, all the statistical studies concerning it have been produced on the basis of a census of its victims. We have built up an original database of its actions from which it is possible to highlight the limits of certain methodological choices and to propose a refined analysis of the group’s strategic options over its entire existence. The present study thus contributes to reconsidering the phases of its military action, i.e. its strategy, as well as the evolution of its targets. Analysis of this evolution makes it possible to clarify ETA’s strategic turning points from a broader perspective than that of the victims alone.

Regulation of telework in Cuba

Yuzhina Fuentes Sánchez — Mon, 03 Feb 2025 00:00:00 +0100

The regulation of telework in Cuba constitutes an advance in its formalization; however, when compared to the regulations in Spain, Mexico and the United States, it reveals important areas for improvement. This study addresses the main differences between Cuban regulation and those of other countries, to identify practices that could strengthen the legal protection of telework in Cuba. The methods of analysis and synthesis predominated, as well as the historical-logical approach, to decompose and contextualize Cuban regulations, in addition to comparing them with foreign norms. The findings indicate aspects in which Cuban regulation has limitations, compromising its effectiveness as a viable labor option. In conclusion, adopting successful international practices would improve the protection of Cuban workers and promote a more flexible work modality, which would contribute to the country's economic development. This research contributes by proposing a guiding framework for future reforms in the Cuban context.

Welcoming remarks: The right to family life and the impact of autonomy and affection on adoption

Natalia de la Torre, Marisa Herrera, Federico Notrica — Mon, 03 Feb 2025 00:00:00 +0100

This new issue of the digital journal Oñati Socio-Legal Series, published by the Oñati International Institute for the Sociology of Law, is dedicated to the problematisation and deepening of a figure of family law in constant dynamism and transformation such as adoption, on the basis of three key elements to rethink it in a complex key such as the right to family life, the notion of autonomy and socio-affectivity. It is a question of investigating the implications, consequences and socio-legal rethinking of this family institution from these three concepts, which would be extremely relevant in order to understand its current physiognomy in the light of the conflicts it observes and which still generate tensions in contemporary law. In short, the aim is to dimension the complexity of adoption today through 11 articles that focus on certain conflicts whose common denominator is the presence – to a greater or lesser extent – of the triad proposed here and, at the same time, it is defended as the central nucleus or backbone from which to look at an already classic figure of family law that has never ceased to arouse socio-legal concerns and questions.