Women's couples: access to parentality by household methods and their incidence in the filiation

Abstract

This work aims to make visible the access to parentality in couples of women through homemade methods and its impact on the types of filiation that are not considered in the current law. This is part of the research project "Access to parentality in same-sex couples and their impact on the social and family context", directed by Mg. Iara Vidal, and is approached from a post-patriarchal, post-heteronormative and rights perspective.

Its methodology is characterized by a qualitative approach, developed from different bibliographic, audiovisual and interview materials conducted by the research team

The new family configurations and their instituting practices, more and more visible, urge to occupy a place in the filiatory regime, bringing about important changes in the kinship system. Given this scenario, the Argentinian regime includes in article 558 of the Civil and Commercial Code the affiliation by means of assisted human reproduction techniques (TRHA) to those modes previously regulated, such as filiation by nature or by adoption, thus legitimizing different types of family and new links with their respective responsibilities and obligations. It should be noted that the TRHAs allow differentiating the biological, genetic and volitional aspects, giving the latter greater value.

Some couples of women can access the TRHA, regulated by the National Law of Comprehensive Access to Medical-Assistance Procedures and Techniques for Medically Assisted Reproduction, Nº 26862, and that automatically guarantees filiation through prior informed and free consent expressed by the procreation will. The consent must be current and contemporary, being updated every time a procedure is required.

In face of the current economical, political and institutional crisis, for some couples of women, the possibility of accessing parentality through homemade methods such as resorting to a friend or acquaintance as a donor, buying sperm from a bank, casual relationships or solidarity sperm emerge with more and more strength. These situations present conflicts for the construction of the affiliation, as a legal regime. What answers do we find in face of these new questions?

The first thing that is observed is that they encounter institutional obstacles at the time of registering their son or daughter in the Civil Registry, arguing that the Law does not allow him or her to be registered by two women without having the prior free informed consent of the sperm donor. In turn, it is necessary to present the same consent from the non-pregnant mother.

Taking into account the TRHA as another source of affiliation, the procreation will as a legal instrument and the principles of reality and plurality expressed in the National Civil and Commercial Code that guarantee the right of every person to live in a family, according to their life project and regardless of their sexual orientation, it is worth asking why in these cases there are legal obstacles to filiation registration demanded by the non-pregnant mother?

Couples composed of a man and a woman do not request such consent by arguing an alleged biological affiliation that, in turn, does not take away the possibility of being falsified and their subsequent claim. We consider as an alternative or compromise solution in the situations of couples of women who use homemade methods that the said biological affiliation by the donor is suspended if it has not been formalized before. Such suspension would last until there is a protocol, either by means of the donor assuming that condition or by claiming his affiliation. In this way the possibility of satisfactorily resolving the filiation demanded by the couple would not be denied.

As much as the affiliation links are understood as a construction, the accent usually rests on the assumption and the belief of a biological connection that is still given more relevance over the other aspects. For this reason, from the social imaginary it is possible to find different arguments that try to hold the blood tie as the only truth and the ideal space for family constitution.

It is concluded that the new practices of access to parentality that emerge force us to rethink the constitution of the affiliation ties  and their symbolic inscription, sustaining the child's desire as fundamental for this. They institute ways of being and doing, transforming the subjectivities of the current socio-historical moment and posing new challenges.