Chamber of the Supreme Court of Justice of the Nation (SCJN), when resolving the Amparo in Revision 553/2018, determined unanimously of five votes to grant the amparo to a marriage formed by two men, for the effect that the civil registry register your child recognizing the paternity of both.
R and C were married in the state of Yucatan after having filed a writ of amparo due to the refusal of the civil registry to marry them. Sometime later, they decided to expand their family. For this, they went to a process of assisted reproduction, through in vitro fertilization and surrogate pregnancy using the sperm of one of them and the ovum of an anonymous donor in order to have a biological child. The result of the above, was the birth of his son, whom they requested to register before the Civil Registry of the state with the surnames of both. However, that institution denied the request, arguing that only the filiation of the sperm donor was verified.
Faced with this resolution, R and C filed an appeal for review, which they requested was attracted by the SCJN, who by resolution dated November 8, 2017, decided to exercise its power of attraction to hear the aforementioned appeal for review.
Today, November 21, when voting on the draft prepared by Minister José Ramón Cossío, the First Chamber determined to revoke the decision of the Fifth District Court of the state of Yucatan, and grant the protection to R and C, for the purpose of the Civil Registry inscribing the child with the surnames of the spouses and recognizing the paternity of both. Some of the main arguments on which this determination was focused were:
- That the right to become a father or mother is understood to be given to every person, without distinction as to sexual preference, and consequently, the right to homosexual couples must be recognized to access the advances of science in the matter of assisted reproduction, and to become fathers or mothers through these methods. In that sense, the right to privacy is related to reproductive autonomy and access to reproductive health services, which involves the right to access the medical technology necessary to exercise that right. So the protection of privacy includes respect for the decisions to become a father or mother, including the decision of the couple to become genetic parents.
- That the surrogate pregnancy procedure can be understood from the main basis of the right to procreation and access to new technologies in terms of human reproduction, as well as the defense of the right to self-determination of people and their privacy; added to the idea of solidarity between couples who need to go to surrogate motherhood to achieve a child, with the woman who agrees to help them realize that purpose. In this sense, the absence of regulation in secondary regulations should not be established as an impediment to the recognition, protection and enforcement of the fundamental rights of individuals.
- That the coincidence between biological filiation and legal filiation is not always possible, either because of the factual assumptions or because in the case other interests that are legally more relevant should prevail. It was established that in the first group of assumptions are the adoptive filiation and the procreations assisted by donation of gametes; and that the second is made up of norms that deal with the extrajudicial determination of filiation or that privilege a consolidated family status over time.
- That it is feasible to establish the filiation with a child born through assisted reproductive technology through the mechanisms of recognition or presumption of paternity or maternity provided for in the Yucatec law, since it is not necessary to carry it out if there is a biological link test.
- That of the evidence provided in the trial it was proved that R and C with the third party involved agreed to carry out a surrogate pregnancy procedure, that one of them is the biological father of the child, that the minor in question was born of this pregnancy procedure and The pregnant person and third-party interested have stated that they have always known that the legal parents of the child would be R and C, as well as that they have no interest in claiming any rights with respect to the child.
- In this logic, taking into account the best interests of the child, and the procreational will expressed by a couple of men, it must be considered that filiation can be established with respect to them. With his biological father on the occasion of the consanguinity bond established in the Family Code of the State of Yucatan. As for the biological father’s partner, the filiation can be considered derived from the act of recognition made upon presentation to the Civil Registry as his son.
The project concludes that, in this way, the validity of the child’s right to have an identity and be registered in the Civil Registry is guaranteed; the right of complainants to their private life and to procreate through access to assisted reproduction techniques; and the right of the third interested also to his private life and free development of personality.
This ruling represents a fundamental step in the recognition of equality and combating discrimination and shows the absence of legislative and other measures to guarantee in the state of Yucatan the right of LGBTTTI people not to be discriminated against because of their sexual orientation or gender identity, despite being, for more than 10 years, a claim of various groups and organizations of human rights.
Source:sinembargo, reporteros hoy, regeneracion
The Mazatlan Post