Peru dispatch: Constitutional Court ruling on father’s naming rights when mother’s identity unknown to him is a victory for equality
According to article 20º of the Peruvian civil code: “The child has the first surname of the father and the first surname of the mother”; the last paragraph of article 21º of the same law states: “In case the mother does not reveal the identity of the father, she can register the child with her surnames”. The Peruvian civil code traditionally did not allow fathers to register their children without revealing the identity of the mother, a situation that violated the right of equality.
On September 27th, 2021 Ricardo Moran filed a lawsuit against the National Identity and Civil Status Registry (RENIEC, in Spanish) requesting the registration of his minor children as Peruvian citizens, who were conceived through surrogacy in Texas, United States. RENIAC denied the request because, as noted, Peruvian civil code only allowed the unilateral registration of the children when the identity of the father was unknown, not the identity of the mother. For that reason, Ricardo Moran came to the Constitutional Court of Peru.
In this judicial instance, as opposed to the claims of the judges of the first and second instances, the judges valued the best interest of the child in accordance with the right to identity and nationality of Ricardo Moran’s children, principles and rights protected by conventional treaties and guaranteed by our constitution, in order to establish that even if children were born in another country, they can receive state guardianship if their parents have Peruvian nationality.
Subsequently, the Constitutional Court carried out a proportionality test on the RENIEC’s decision to initially deny the plaintiff’s request, in order to determine whether the right to name, nationality and equality of Ricardo Moran’s children were being violated under the existing civil law stipulating that a father must indicate the identity of the mother to be authorized to register their children. Along these lines, the last paragraph of article 21º of the Peruvian civil code was declared unconstitutional because there were no reasons to protect the differential legal treatment between fathers and mothers who want to register their children without revealing the identity of the other parent. In this way, the Constitutional Court of Peru weighed the right to the name and nationality of minors, which cannot be conditional on the recognition of both parents, whether it is the mother or the father who requests the registration on RENIEC.
This jurisdictional pronouncement marks an important milestone in the process of granting the same civil rights to both men and women in Peru’s civil legislation. Due to its old date (1984), there still are normative provisions in that that continue to perpetuate the management of social problems from a sexist perspective, as is the case in this case. Previously it was not conceived that a man could be a single father, therefore, only the rights of single mothers to register their children were protected. There is still a plurality of regulations currently in force that are not consistent with the Peruvian social reality, which is why the work of constitutional control undertaken by the Constitutional Court is essential and vital to prevent violations of human rights.
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International and Comparative SOGIESC Law - Professor Andreas R Ziegler 