TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 346/15

23 of June of 2015

Headnotes:

The Constitutional Court found no unconstitutionality in Civil Code norms under which the competent authorities can take the initiative (sua sponte) to determine paternity against the supposed father’s will and a court can then recognise it, thereby imposing a state of paternity on the biological father, whereas potential mothers are allowed to refuse maternity by opting to have an abortion. The Court said that allowing paternity to be legally determined and recognised without the father’s consent, while legally enabling mothers to decide to terminate pregnancy in the first ten weeks, is not a violation of the aspect of the constitutional principle of equality that prohibits gender-based discrimination.

The fundamental right to personal identity includes the right to know who one is descended from in a way that reveals the identity of the persons who biologically contributed to the formation of the new person. Under current Portuguese law, when a supposed father refuses to collaborate in establishing a paternity that is not yet legally determined, a paternity investigation action is the only legal means designed to implement the child’s fundamental right to establish a legal bond of biological paternity with him.

The Constitutional Court acknowledged that this is not an absolute right – conflicting values may make it necessary to harmonise or even restrict the opposing interests – but the Court did not recognise the existence of any right to self-determination on the part of the biological father that would give him space in which to unilaterally refuse to accept his paternity. The child’s right to establish a legal filial bond that corresponds to the biological truth superimposes itself on any recognition of the parent’s right to self-determination in this domain.

There is no perspective from which the two situations – the refusal to recognise paternity and the decision not to become a mother – possess the same value, and it is thus not possible to find a point of comparison that would enable to the principle of equality to operate.

Summary:

This concrete review case involved an appeal that questioned the constitutionality of both judicial paternity recognition actions, and the process that necessarily precedes them, in which the Public Prosecutors’ Office takes the initiative to determine the paternity which, if confirmed, can then be submitted to a court for recognition. Both the actions and the process are provided for in the Civil Code and regulated in the Law governing the Organisation of the Custody, Protection and Re-education of Minors.

The process in which the Public Prosecutors’ Office (MP) takes the initiative to determine paternity is a pre-judicial process whose goal is to enable the MP to bring a viable paternity recognition action. In the action itself the MP pursues the public interest in overcoming doubts as to the filiation of citizens whose parents’ identities are not on record. The pre-judicial nature of this type of process is designed to avoid the possibility of bringing unfounded actions before the courts – something that could lead to situations in which the parties’ privacy or dignity could be unnecessarily undermined.

The present appeal was lodged against an appeal court ruling upholding a sentence in which the court of first instance decided in favour of a paternity recognition action, which the MP had brought after first confirming the action’s viability in a process undertaken at the MP’s initiative.

The Constitutional Court took the position that even if there were any unconstitutionality in the process in question, it would not have any repercussions for the decision challenged in the appeal, inasmuch as the process is precisely a prior, pre-judicial phase. Given that an appeal on the grounds of unconstitutionality plays an instrumental role in relation to the proceedings that give rise to the appeal, the Court said it could only hear the questions that applied to those proceedings – here, the constitutionality of the action to secure the judicial recognition of paternity, and specifically the interpretation of the norms under which it is possible for a court to recognise paternity against the will of the supposed biological father.

The regime for establishing biological and legal paternity in the Portuguese legal system is a differentiated one. If the mother is married, there is a rebuttable presumption that the father is the mother’s husband. Outside wedlock, paternity is established either by a process known as ‘voluntary recognition’, or as a result of a successful paternity investigation action. The latter can be brought either freely by the child, or by the MP in the wake of a positive paternity determination process undertaken at the MP’s initiative.

The appellant – the supposed father in this case – argued that the second of these two means of establishing a legal father/child bond, in which the wishes of the supposed father are irrelevant, was in breach of certain constitutional principles. In his view the biological father should have the right to reject paternity – a right that would be derived from the rights to freely develop his personality and protect the privacy of his personal and family life – in the same way as the legislator allowed women to have an abortion during the first ten weeks of pregnancy. If women are allowed to reject motherhood in the name of their right to self-determination, men should be guaranteed the right to refuse legal fatherhood, failing which the difference would constitute unfair gender-based treatment. This argument adopted the position taken by Jorge Martins Ribeiro, in an academic thesis defending the right to equality in the decision whether to procreate, entitled: “O direito do homem à rejeição da paternidade de filho nascido contra a sua vontade. A igualdade na decisão de procriar” (The man’s right to reject paternity of a child born against his will. Equality in the decision whether to procreate).

Concern about men’s right to parental self-determination is not a new issue in the history of the way in which paternity can be determined by law, and could already be found at the time of the French Revolution. Voluntary recognition signifies freely accepting the legal status of father. In Portugal, under the 1867 Civil Code paternity investigation actions were prohibited as a general rule (in those days, any birth outside wedlock was deemed illegitimate and implied considerable stigma), but were exceptionally permitted in cases in which the man indicated he was willing to accept paternity. The 1966 Civil Code expanded the cases in which courts could admit paternity investigation actions. Following the 1974 Revolution and the subsequent legislative amendments, there arose a consensus that children’s rights to know who their biological father is and to establish the respective legal bond with him fall within the scope of the protection applicable to the fundamental rights to personal identity and to form a family.

The appellant argued that the reasons which justified recognising women’s right to parental self-determination and thus to choose to have an abortion up until the tenth week of pregnancy are also valid in relation to men’s parental self-determination; that men should also be free to decide whether or not to legally be a father.

The Court considered that the constellation of interests and values in play when the legislator decided to make it permissible under the criminal law for a woman to have an abortion is substantially different from that applicable to the way in which men participate in the process of establishing a legal paternal bond with a child who has already been born.

The legislator preferred to leave it to women in the initial phase of pregnancy to decide whether or not to preserve the potential for life, instead of opting to punish them under the criminal law.

However, the legislator did not recognise women’s autonomy to decide whether to proceed with a pregnancy (when exercised in certain circumstances that are defined by law) because it considered that the mother’s right to self-determination ranked higher than the father’s right; that recognition serves rather as an alternative way to protect the newly-conceived unborn child. The grounds for that legislative decision can therefore not be used to substantiate a man’s would-be right to reject paternity of his child after the latter’s birth.

It is true that the consent of the biological father is not required in order for a woman to have an abortion, but this is the result of the legislator’s understanding that subjecting the possibility of an abortion to the agreement of both biological parents would be the equivalent of giving the man a right of veto.

Given that the legislator considered it justified to treat the biological parents differently with regard to the decision whether to abort during the first ten weeks of pregnancy, it would not make sense to invoke the principle of equality in order to pursue some kind of desire to compensate the parent who was not given a part in the decision by releasing him from the duty to assume the paternity of the child who has now been born. Such a solution is not only not required by the principle of equality, which is based on the assumption that the situations in question can be classified as equal, but would also lead to an unjustified sacrifice of the fundamental right of the person who has already been born to see his/her legal filial bond with his/her biological father established.

The fact that men can be obliged to both recognise unwanted paternities and see mothers have an abortion when they, the fathers, would want the pregnancy to reach its natural term, is conditioned by the biological reality of human gestation.

As such, the Constitutional Court denied the appeal, on the grounds that it found no unconstitutionality in the norms challenged by the appellant.

Supplementary information:

One Justice concurred with the decision, but not the grounds for it. His position was based on the fact that in Portugal the situations of men and women when it comes to investigating and establishing biological filiation in cases where the identity of a person’s father or mother is unknown are the same, as is the way in which the law treats those situations; Portuguese law also permits the determination of biological maternity against the mother’s wishes. The concurring Justice argued that the better grounds for the Court’s decision would have been that the question of determining paternity is not comparable to abortion – where the right to life and its protection in the uterus life faces off against women’s right to self-determination – either factually or in terms of the values involved.

Cross-references:

See Rulings nos. 75/10 (23-02-2010); and 401/11 (22-09-2011). The latter was included in the selection sent to the Venice Commission with regard to September-December 2011.