BUENOS AIRES — A woman writes to her children before dying, unwilling to keep a painful secret any longer. On reading her letter, the children realize that the father who had raised them, wasn't their biological father.
Before such situations, Argentina's judiciary usually determines a state of "triple filiation," meaning that a person can have two mothers and a father or two fathers and a mother.
There are 25 such multi-parent families, found in and around Buenos Aires, as well as several provinces including Santa Fe, Tucumán and Córdoba. Each one is quite different.
The first two cases were from 2015, just before a reform to the Civil and Commercial Code went into effect. The adults in question did not take legal action to be recognized as multi-parent families, but the civil courts of the capital and the Buenos Aires province took decisions to resolve their situations.
In remaining cases, families did act to ask for formal recognition, which was given. Two cases were refused however because at the moment of arbitration the children no longer had affective ties to any of the three adults. For now, legal action is the only way to get around Article 558 of the Civil and Commercial Code, which establishes that nobody can have a filial relation with more than two people, and judges can rule the norm to be unconstitutional or inapplicable.
Strong affective bonds
The main principle for recognizing that three people can legally share maternal and paternal bonds is socio-affective or emotional in nature.
This consists of "an affective tie that is strong, solid and sustained, between an adult that wants to be considered a parent and a minor who would be his or her child, without displacing the existing parents," the jurist and Buenos Aires University lecturer Marisa Herrera told Clarín.
Another jurist and expert in family law, Andrés Gil Dominguez, says "these ties are not based on natural filiation but built on social affection and a desire for parenthood, or to be someone's father or mother."
Guarantee the right to form a family in plural terms.
He says three-way parenthood is "one more way of building a family and is not about breaking the binary system. You keep what you have, and expand the ties." Another factor in this expansive family system is the children's best interests.
Marisa Herrera recounts a case where a child was interviewed and asked for his "juridical, non-biological father not to be displaced. But he also began having affective ties with his biological father, which means he has affective ties with both." That situation led to the legal recognition of his biological father (as parent), without displacing the man who had raised the child.
Gil Dominguez says such requests are based on constitutional principles and international treaties, as "it is necessary to guarantee the right to form a family in plural terms."
It takes a village to raise a child
Taylor WrightBefore conception
Gil says use of assisted reproduction techniques must "respect the right to intimacy and to non-discrimination." The biggest number of enquiries regarding multi-parenting with his firm concerns "origins," he says, or family planning before conception.
Such enquiries, he said, were not a prelude to controversial litigation but about requests for recognition, where exact ties must be certified. But the juridical path is not simple, as advocates and prosecutors have repeatedly obstructed multi-parenting initiatives. Gil says "they have to defend legality but they also oppose the full exercise of rights. They thus refuse to recognize the constitution and international treaties, giving priority to their own ideology."
Breaking the biological-binary paradigm of natural filiation systems.
Legislative proposals have been made by one senator, to modify articles 558 and 578 of the Civil Code and regulate triple-parenting.
Rulings giving rights
The first time triple parenting was registered in Latin America was in La Plata. Spouses Susana and Valeria registered their son Antonio with their family names though on April 22, 2015, the Buenos Aires provincial registry of persons allowed Antonio's biological father, Hernán, to add his family name to the child. Another case, resolved this year, was at the request of two adult brothers. Their mother had died and left them a letter identifying their biological father.
They went to the Family Tribunal No. 1 in the San Isidro district of Buenos Aires, to request their triple filiation but without a change of surname. On June 15, 2022, the court declared Article 558 of the Civil Code to be inapplicable, as the children had a biological mother and father, and a "socio-affective" parent whose relationship with them "breaks the biological-binary paradigm of natural filiation systems."
It ruled that negating the reality of multi-parenting was tantamount to "depriving a person of rights of a supra-legal nature regarding maternity and paternity exercised in practice."
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