Datos genéticos y el derecho a la identidad en casos de desapariciones forzadas de niños en Argentina, España y la República de Irlanda: un estudio comparativo de la evolución histórica y jurídica
| Autor | Prof. Dr. Roldán Jimeno Aranguren |
| Cargo | Professor of History of Law, Public University of Navarre (Pamplona, Spain) |
| Páginas | 51-73 |
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The tragedy of the abductions of children in Argentina, Spain and the Republic of Ireland is well known. Let us one recall very briefly its main features. It is estimated that around 500 babies were abducted in Argentina during the military dictatorship (1976-1983). In many cases, their mothers had been detained in clandestine centers, tortured during pregnancy and killed shortly after giving birth. It was a plot perfectly organized and protected by the dictatorial State. The newborn babies were given to people linked to the dictatorial repression. The falsification of birth certificates signed by doctors linked to the military regime was commonplace, as was the registration of these children as the biological sons and daughters of their kidnappers. Thus, the search for these children and any judicial action have been seriously hampered.
It is estimated that in Spain there may be up to 300,000 children born between 1950 and 1990, who were separated from their parents in order to be sold. Spanish babies were taken from imprisoned Republican mothers, or were entrusted to new guardians in cases where their mothers had died at the hands of the Francoist army. In addition to political, ideological and religious motivations, the kidnapping of children was also justified for economic reasons. The selling of babies through illegal adoptions became a lucrative business, facilited by a systematic plot devised by pediatricians and religious institutions, and which continued beyond the transition to democracy, in some cases as late as 1990. Birth and death records were forged. The hospital would inform the mother and the family that the newborn had died, offering to take charge of the remains; then, the child was presented to the adoptive parents, usually a woman who had entered the center serving pregnant, waiting for the delivery of the baby who had paid a significant amount. In some cases, at the request of the biological parents, a deceased infant was presented, which could be a doll or a deceased baby who had been frozen to be displayed in such circumstances.
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As in Spain, the Irish Catholic Church had a direct involvement in a system of illegal adoptions. It has been estimated that between 90,000 and 100,000 Irish children were separated from their biological mothers by adoption or put into foster care since the founding of the Irish Free State in 1922 until the 1970s. These mothers were single pregnant women who were committed to religious establishments where they worked, gave birth and raised their illegitimate babies in the first months of life. Their children were taken and adopted in return for, generally, an economic compensation received by the religious institution. We are not usually faced with enforced disappearances of children in these instances, as the mothers gave their consent to adoption, albeit in conditions where many fundamental rights were violated. Many of these children were sold secretly to American families in an organized and illegal conspiracy. Illegality is also noted in the records of the births of those illegitimate children who were given in adoption in the Irish Republic itself, since they were not in many cases consigned on behalf of the biological mother, but were registered under the name of the adoptive parents, as if these were the progenitors.
The story of the grandmothers who started their fight to recover their children and grandchildren during and immediately following the dictatorship is well known, as is the importance of genetics to their search1.
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In October 1977, a group of women who had suffered the disappearance of their daughters and pregnant daughters-in-law set up the Abuelas de Plaza de Mayo organisation (Grandmothers of the Plaza de Mayo) to locate and recover their grandchildren who had been born in captivity. These women went to great lengths to covertly acquire an enormous quantity of information about the circumstances surrounding the kidnapping of their children so as to identify and locate the whereabouts of their grandchildren.
In 1979 these women learned of the existence of genetic identification techniques, thanks to a news story that mentioned that one’s parentage could be proven by means of a comparative blood analysis. This was the solution that Abuelas de Plaza de Mayo needed to find their grandchildren. The organisation began to seek out European and American scientists who could help them in this endevour. During their search, they came upon the Argentinian geneticist Víctor PENCHASZADEH, a researcher at Cornell University in New York (where he was in exile after an attempted kidnapping by the far-right group Triple A) who in 1982 put them in touch with Fred Allen and Mary-Claire King, both genetic scientists with a particular interest in human rights.
The grandmothers’ search posed a challenge to the science of the time: How could paternity testing be transformed into a reliable indication of the likelihood of someone being a biological grandparent in absence of the parents? Geneticists, molecular biologists, biochemists and mathematicians worked together to devise new laboratory techniques and to conduct complex statistical analyses. They decided to use the human leukocyte antigen (HLA) in determining paternity and, in the absence of the parents, they had to turn to the grandparents. This led to the mathematically-derived Grandparentage Index, a statistical formula which could establish the identity of a child based on genetic information taken from at least three of the grandparents despite the absence of such information from the parents.
Once the military regime had ended, the grandmothers put pressure on the Argentinian Government to bring them justice. In those early years, when presented with the opportunity of recovering some of these captive-born children, the grandmothers were required to legally demonstrate — with more than merely their own personal certainty— their parentage or grandparentage. Thus, genetics became a form of legal proof.
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The National Commission for the Disappearance of Persons (CONADEP) was set up in December 1983 to investigate the serious, repeated and planned violations of human rights carried out during the military dictatorship and, in particular, to get to the bottom of enforced disappearances2. In 1984 this was followed by the Argentine Forensic Anthropology Team, set up to investigate political or ethnic violence.
One of the first actions by CONADEP, in 1984, was to recommend a series of doctors to Abuelas de Plaza de Mayo who could conduct genetic testing. The victims complained that these doctors had links to the dictatorship and that they had concealed the positive results of one genetic test, a scandal which marked the the beginning of the vindication of the rights of the victims by means of genetic identification. Abuelas de Plaza de Mayo began pressuring the government of Argentina to take responsibility for and facilitate the necessary means of locating the missing children. They also wanted the State to assume the economic cost and responsibility for the investigations3.
In the meantime, the ‘Grandparentage Index’ proved an effective when the technique when it was used in 1984 to recover the first granddaughter, Paula Eva Longares, who was taken at two years of age by a police officer as part of the operation which led to the kidnapping and disappearance of her parents.
Genetics soon took a giant leap forward with the development of DNA fingerprinting and, subsequently, the polymerase chain reaction (PCR) technique and mitochondrial DNA. The evolution of genetics was decisive in identifying missing persons and stolen children in Argentina. The pioneering work conducted in Argentina was consolidated when the Government set up the National Genetics Bank in 1987. This institute stores DNA samples of family members trying to locate children who have disappeared as a result of State terrorism, as well as samples of all those who suspect themselves to be children of missing persons and who have given a sample to the Bank. The National Genetics Bank has carried out thousands of genetic analyses on young people who may be children of missing persons and has gradually been incorporating more advanced genetic and forensic techniques as they have become available.
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The outcome is extremely positive. According to data from December 2017, genetic identification in Argentina over a period of 35 years has restored the identify of 127 people who were taken from their families or born in captivity4.
The scandal of stolen babies in Spain came to light following the investigative work of two journalists, Montse Armengou and Ricard Belis, who in 2002 released a documentary entitled Los niños perdidos del franquismo (The Lost Children of Francoism). Together with a book of the same title published that same year with Ricard Vinyes5, the film became the starting point for a historical investigation across Spain which was followed by the first academic legal studies6. After just a few years, associations for historic memory demanded to know the cause of the kidnappings, and the issue was debated in public institutions, including those in Europe. In its declaration condemning the Franco dictatorship dated March 17, 2006, the Parliamentary Assembly of the Council of Europe highlighted...
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