Adoption: The Right to Know One’s Origins

From recognition to exercise of the right

This issue recently arose within Marval’s Pro Bono Program, following an inquiry from a young woman who spent part of her childhood in a temporary care home and now, years later, seeks access to the court file related to her personal history.

When she requested access, the court required her to appear with legal counsel. In that context, the Pro Bono Program undertook to assist her in seeking access to the file.

The case raises a broader question: how is the right to know one’s origins recognized and effectively exercised in the context of adoption?

The legal framework

In adoption matters, every decision must be guided by the best interests of the child. Alongside this principle, the Argentine Civil and Commercial Code (CCyCN) expressly recognizes respect for the right to identity and the right to know one’s origins as general principles governing adoption.

The Convention on the Rights of the Child recognizes children’s right to know their parents, as much as possible, and to preserve their identity, including their name and family relations. Argentine Law 26061 reflects these protections and further provides for the cooperation of government authorities in searching for, locating, or obtaining information about parents or other family members.

The CCyCN specifically regulates the exercise of this right in the context of adoption. An adopted person who has sufficient age and maturity has the right to know information about their origins and may access the judicial and administrative files relating to their adoption, as well as other information contained in judicial or administrative records. If the adopted person is a minor, the judge may order involving specialized bodies to assist throughout the process. An adopted adolescent may bring an independent action to ascertain their origins. In such case, the adolescent must have legal counsel.

The exercise of this right also requires preserving the relevant information. Accordingly, the CCyCN provides that judicial and administrative files must contain as much information as possible regarding the identity of the child and their family of origin, including information about transmissible diseases. It also requires adoptive parents to expressly undertake to inform the adopted person of their origins.

The Supreme Court’s perspective

The Argentine Supreme Court has also addressed the importance of preserving the right to know one’s origins in connection with the right to identity and the best interests of the child. In Guarino (Opinion 331:147), the Court emphasized the importance of preserving a child’s identity and considered it appropriate to seek to locate her family of origin so that she could learn her biological identity, which the Court characterized as a fundamental right, provided that doing so would not be harmful to her.

The decision illustrates that, in adoption matters, the right to know one’s origins cannot be considered in isolation. Its exercise relates to the preservation of the adopted person’s identity and must be assessed on a case-by-case basis and according to the best interests of the child.