La prueba de adn como requisito indispensable para el reconocimiento voluntario de paternidad de una hija o hijo nacido fuera del matrimonio

Abstract

The present thesis entitled: "THE DNA TEST AS INDISPENSABLE REQUIREMENT FOR THE VOLUNTARY ACKNOWLEDGMENT OF PATERNITY OF A DAUGHTER OR CHILD BORN OUT OF MARRIAGE", constitutes the final report of the research process carried out and motivated in what is stated in Article 44 second paragraph of the Constitution of the Republic of Ecuador regarding the right to identity that children, This article states that the State will recognize and guarantee children and adolescents their right to identity, which includes having a name, a citizenship, a family, to enjoy family and community coexistence, as well as to receive information about their parents or absent relatives, unless it is detrimental to their well-being. Article 21 of the Organic Code of Children and Adolescents establishes that children and adolescents have the right to know their father and mother, to be cared for by them and to maintain permanent, personal and regular affective relationships, unless such coexistence or relationship affects their rights and guarantees. Likewise, it mentions that children and adolescents shall not be deprived of this right due to lack or scarcity of economic resources of their parents. Thus, by regulating the form of voluntary recognition in Article 249 of the Civil Code, the right to identity and the best interest of the minor to know his or her true parent is being directly violated, since it does not establish a scientific test to determine the true filiation between the father and the son or daughter to be recognized. This research refers to the DNA test, its origin, and structure and how this scientific test is applied in paternity recognition processes, also indicating the different ways of taking samples for DNA testing. The legal nature of the right to identity of the child and adolescent is also established, addressing identity in personal and family development. It also analyzes the different types of recognition according to Resolution 05-2014 of the National Court of Justice, published in the Official Gazette No. 346 on October 02, 2014.

5 The possible consequences that could arise in the future in the case of not performing the DNA test would be social because the recognition has a great impact on the family and social life of the recognized child and the recognizing parent, legal in terms of the rights and duties arising from the act of recognition, economic in the obligations that the child and the recognizing parent have in terms of the right to food and the upbringing of the children, as well as the psychological effects on the children and the parents when they learn of the lack of a blood relationship. Fundamentally, the most serious consequence is the affectation of the minor's right to identity in the parameter of knowing his or her biological truth. In the results obtained through the field study, in general, it can be stated that most of the legal professionals in the free exercise of their profession agree with the reform of the Civil Code in its pertinent article by adding a clause that establishes the application of the DNA test prior to the voluntary recognition by the father of a son or daughter born out of wedlock, thus guaranteeing the best interest of the child or adolescent to know his biological father and safeguarding his right to identity.