Extramarital paternity by possession of status or relatives. the real interests of minors

Parte general

Abstract

One of the parents is exercising a double action of declaration of paternity by possession of status with respect to the two biological children of his ex-partner, as well as the paternity of his ex-partner with respect to the two biological children of the plaintiff himself in relation to the four children born, through the use of assisted reproduction techniques abroad, through surrogacy. Affiliations that are registered in the Spanish Civil Registry with respect to each biological father and at the same time the principal.

It is not possible to appreciate possession of state because during their long coexistence at no time was there the intention of creating a family. The surrogacy contracts were carried out on an individual and individualistic basis. Technique used with genetic material of each of them to "obtain" their own children. Technique that does not require the consent of the partner, unlike what happens in assisted reproduction techniques (IVF or embryo transfer) where consent is key if the filiation in relation to the couple is to be determined, a fact that shows that at all times a determination of single-parent affiliation was pursued. The will derived both from its legal actions and in fact was at all times that there was a separate single parent, so that each parent had their own children. If the parties had wanted from the beginning to have jointly agreed to surrogacy, they would have obtained a certificate and/or a judicial decision declaring dual paternity in the country where the contract and the birth of the children took place. At no time during the cohabitation was it decided to resort to adoption as the ECHR points out.

Granting filiation by possession of state does not guarantee that the best interest of the minor is better protected by the fact that the fulfillment of the duties inherent to parental authority will fall on two people.

Among the cohabitants, what has existed is a socio-affective bond, not only between the children, but between each pair of children with the biological parent of the other pair of children and vice versa. All are close to each other, having the right to communication and the right to personal relationships, which in the case at hand is more than fulfilled. Affective partner bond, that of relatives, which guarantees respect for family life regardless of the biological ties between people who have lived together with a certain stability, which has been protected by art. 8 ECHR, and that does not require that parentage must be established.