The law gives the newborn the right to be identified at the moment he/she is born . But this right has not been taken care of appropriately by our society, fundamentally not for lack of want but for lack of adequate systems. an example of this problem is the multitude of protocols required for identification. first, on the part of public administrations, and the many proposals that come from the professional standpoint, have unsuccessfully tried for many years to get the necessary guaranties for families and the newborn. One of these entities is the nation in the job of permanent watchman of people's rights, including those of the newborn.(1)
Professionals who take part of the delivery, can be held liable if the legislation is not obeyed, but on the other hand, and in their defense, they don't count with reliable systems capable of eradicating errors, and because of this, they are clearly in an unprotected situation. Neither the DNA test nor the baby identification cards that use ink to get the fingerprints ,- system currently is use-, guarantees the omission of errors and the responsibility pertaining to these issues .
The Declaration of Universal Human Rights establishes in article 6 that "every human being has the right of personal judicial recognition". The Convention of Infant Rights , that this year would celebrate its 12th anniversary, establishes the right of newborns to be identified in a way that they can use his/her citizenship.
Spain, as a signing country of the mentioned declarations, is aware of the rights of the newborn, and has encouraged its organizations to develop those mechanisms that would allow to identify children through a method that "as far as possible" be infallible.
In this sense, a series of norms have been installed, directed to the identification of newborns, aimed to the protection of the fundamental right of the child to have guaranteed, his/her identity, security as a person, and biological origin.
Legislation about the identification of newborns:
· Article 39 of the Spanish Constitution
1. The public powers ensure the social economical and judicial protection of the family.
2. The public powers ensure also, the integral protection of children. These are equal in front of the law, independent of the mothers, or any affiliation and regardless of their civil status. The law will make possible the paternity investigation.
3. Parents must assist in every way those children conceived in and out of the marriage, as long as they are minors. And in other cases as the law proceeds them.
4. Children will enjoy the protection foreseen in international agreements that ensures their rights.
· Article 29 of the Civil Code
The Birth automatically grants the child judicial or legal rights , but to be conceived is as to be born for all the favorable effects, as long as the child is born following the conditions of the following article:
· CAM law 6/1995. Chapter III. Article 11. Guaranties of Infancy and Adolescence Rights
Right to health protection.
1. All boys, girls and adolescents of the community of Madrid have the right to:
a) Be correctly identified at birth, according to the most advanced and precise methods....
· Articles 2, 3 and 6 of the Universal Declaration of Human Rights
> Article 2: Every person has all the rights and liberties proclaimed in this Declaration, without differentiation of race, color, sex, language, religion, political opinion or any other kind of opinion,c(national or social), economic position, birth, or any other condition. Also no differentiation will be made based on political, judicial, international ,or international of country or territory, condition under which jurisdiction the person is depending on. Even if it is an independent country or a territory under trusted sadministration, not autonomous or under any kind of sovereign limitation.
> Article 3: Every individual has the right to life, freedom and personal security.
> Article 6: Every human being has the right, in every place, to be recognized as person with legal rights.
· Articles 7 and 8 of the United Nations Convention Over Right of Infants. November 20 of 1989.
> Article 7
1. The child will be registered immediately after birth and will have the right, since birth, to a name and to acquire a nationality and as far as possible, to know his/her parents and to be taken care of by them.
2. The countries which follow this Convention will ensure that the application of these rights conform with its National Legislation, and of the duties contracted in lieu of the international instruments pertaining to this issue, especially when the child could result otherwise without a country.
> Article 8
1. The mentioned parties vow to respect the right of the child to reserve his/her identity, including nationality, name and family relations in accordance with the law without illicit changes.
2. When a child is deprived illegally of any or all of his rights to be identified, the mention parties must assist and protect him appropriately to reestablish his identity rapidly.
· Penal Code. Article 220. Chapter II. Of the birth supposition and of the paternity alteration, condition or state of the minor.
1. The assumption of a birth will be punished by prison tern of six months to two years.
2. The same punishment will be given to he who would hide or would give a child to third parties with the intention of altering or modifying his filiation.
3. The substitution of one child for another will be punished by prison terms of one to five years.
4. The ancestry, either natural or by adoption , who would commit the three acts previously mentioned, could be punished also with a special disqualification penalty to use the God given right they would have had over their child or supposed descendant, who was hidden, replaced or given away. In such case, over the rest of their children or descendants for a period of four to ten years.
5. The substitution of one child by another, which happens in health centers or social health centers, and caused by grave imprudence of the people responsible for the identification and custody, will be punished by a prison term of six months to a year.
· Order of the Justice Department of November 10, 1999. Reform of the Civil Register Law which places the right of the child to know the biological identity of the mother and the right of the mother to hide it from him/her.
... Two fundamental innovations are contained. The first, consists in taking away the reference on the margin of the second paragraph of article 197 of the Civil Register Ruling, taking the doctrine of the Supreme Tribunal Sentence( first chamber) of November 21 of 1999 which has declared the unconstitutionality of a precept ruled as the cited one, which permits the mother to hide the pregnancy by her own will, which makes the biological right cited, vulnerable and that with the publicity effects addressed on the February 15, 1999. The second innovation consists in the introduction of two white squares for the mother's finger prints. This with the purpose of re-enforcing the biological identification of the newborn. |
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