Righting Child Custody Wrongs:
The Children of the “Disappeared” in Argentina
Laura Oren[*]
I. Introduction
Martha Fineman has said that family law decisions are “inescapably political.”[1] Nowhere is this better and more literally illustrated than in Argentina, where, in the aftermath of the dictatorship from 1976 to 1983, courts considered the fate of the kidnapped children of the disappeared. The politics of the “Dirty War” conducted by the juntas included disappearing perceived opponents of the military regime and systematically kidnapping their young children, often selling or giving them for adoption to military and police families. When the biological families of these children finally located them, sometimes years later, the relatives attempted to reclaim them. Courts then faced the troubling question of what to do: whether to return the children to the families of origin from which they were stolen, or to leave them with the “parents” who were raising them illegally. In order to understand this dilemma and the disputed solutions proposed “in the best interest of the child,” it is necessary to consider the entire context of what happened in Argentina during the nightmare years of the dictatorship.
Between 1976 and 1983, Argentine military and police forces disappeared as many as 30,000[2] of their own people, whom they perceived as “subver-
*** Top of Page 124 ***sive” to national security. These victims were kidnapped, tortured, and killed; their fate was hidden from their families and the world by burying their bodies in mass graves or throwing them into the sea.[3] Many of these disappeared had young children when they were abducted or were pregnant women who gave birth to infants while held in captivity.[4] It is estimated that as many as 450[5] children of the desaparecidos, or disappeared, were given or sold to childless military or police families, or otherwise wrongfully adopted by families whose knowledge of their origins ranged from innocence to willful ignorance to guilt. An organization called Abuelas de Plaza de Mayo (Grandmothers of the Plaza de Mayo)organized a large part of the efforts of the biological families of the children of the disappeared to locate and reclaim those children. The Abuelas played an integral role in the politics of resistance that helped bring down the military regime in 1983.[6] Today, some of the now grown children are politically active themselves.[7] Moreover, when General Jorge Videla, de facto head of the military government from 1976 to 1979 and alleged orchestrator of the systematic kidnapping, was arrested in June 1998, the fate of the children of the disappearederupted again into Ar-
*** Top of Page 125 ***gentine politics.[8] Other arrests have followed, leaving leading figures of the dictatorship either under house arrest or in prison.[9]
Just as in United States law,[10] Argentine courts subscribe to a “best interest of the child” standard in making custody decisions. While never easy, the application of that yardstick is particularly troublesome when the original placement of a child is faulty or illegal, and years may have elapsed before a court finally orders a remedy. The claims of justice in the individual case or the interest in deterring bad behavior in general may militate in favor of the court ordering a change in custody. Any change in the status quo designed to right the original wrong, however, has potentially serious consequences for a child removed from the psychological family which raised her in order to be returned to the biological family from which she was stolen. At first blush, this might seem like a question of “justice” versus the “best interest of the child.” In these cases, however, both parties to the dispute claimed to be concerned with the “best interest of the child.” An overly simplistic view of “politics” versus “best interests” does not take into account the nuanced cooperative solutions arrived at between families who were legally entitled to recover children and innocent adoptive families.
Moreover, the very definition of “the best interest of the child” is inevitably a “political” question itself. The Abuelas and the biological families, on the one hand, and the pseudo-adoptive, “psychological,” or “raising” families, on the other, had very different ideas about the content of that standard. They disagreed about questions such as: Which is more important for children—stability at all costs or truthful knowledge about their origins? The answers, moreover, may depend on a variety of circumstances, ranging from the age of the child at the time of kidnapping and recovery to the seriousness of the “lies” that were told. Competing social values were at stake in the controversy over the children of the disappeared. In that sense, too, these family law matters were indeed inescapably political.
The context of family law disputes shapes substance and procedure. As the Argentinean case represents an extreme of the righting child custody wrongs dilemma, the political context is even more important. Part II of this Article, “Background: ‘The Nightmare Years’ in Argentina,” begins by
*** Top of Page 126 ***explaining some of that context and examining the background of the nightmare years in Argentina. Part III, “Searching for the Children of the Disappeared: The Abuelas de Plaza de Mayo,” takes a closer look at the grandmothers’ organization, the Abuelas de Plaza de Mayo, which has been so instrumental in shaping the search for the missing children of thedisappeared. The next Part, “Proving Blood Ties: Paula Logares and Laura Scaccheri,” examines the scientific advances and legal changes with respect to the probative value of blood and other genetic testing used to establish the true identity of located children. As the cases proceeded, the Abuelas shaped their own theory and practice of the “best interest” of the kidnapped children. Part V of the Article, “Extra-Judicial Versus Judicial Recovery,” examines two modes of restoration, extrajudicial and judicial, in a family that lost both of its children and recovered them both, but in strikingly different ways. The next Part, “Worse than Slavery?: The Best Interest of Kidnapped Children,” examines this development, through consideration of a dramatic case involving the recovery of a child born in captivity in one of the detention centers maintained by the regime. After the passage of time and after one more well-known restitution, however, it became increasingly difficult to recover any of the remaining children. This is the subject of the next Part of the Article, “Ximena Vicario: The Last Restitution?” After this case, the Abuelas increasingly turned to international law, which they had helped shape, in order to right the wrongful retention of the kidnapped children. This is addressed in the next Part, “Developing International Norms to Right Wrongs.” Part VIII, “Impunity under Attack: Recent Developments in Proving a Systemic Plan,” provides an update on the political background in light of recent events. Finally, the Article concludes with the lessons learned from Argentina: the competing interpretations of the “best interest of the child” and the procedural doctrines used to decide the custody cases reflect the social and political context in Argentina.
II. Background: “The Nightmare Years”[11] in Argentina
Argentina’s nightmare years began when former President Juan Perón, subject of a cult-like following from both right-wing and left-wing supporters, was recalled from his exile in Spain in June of 1973. As he landed in the airport, a struggle between factions broke out in the massive crowds gathered to greet him, and two hundred young people met their death.[12]Shortly, it became clear that Perón sided with the right, giving tacit support to right-wing paramilitary operations that kidnapped leftists. On their part, some left-wing terrorist groups engaged in assassinations and were assassi-
*** Top of Page 127 ***nated in turn, beginning an undeclared civil war in the streets of Argentina.[13] After his death in 1974, Perón was succeeded by his wife, Isabel. When she proved herself unable to control the incipient civil war or runaway inflation, the military (as they had so many times before) took control of the Argentine government. After the military junta, led by General Jorge Videla as de facto President, took over on March 24, 1976, however, the era that followed was unprecedented in its political repression and human rights violations.[14]
The newly installed military dictatorship adopted a statute called “The Argentine Process of National Reorganization” or the Proceso de Reorganización Nacional (Proceso), which abolished constitutional government and sought a comprehensive transformation of Argentine society. It gave itself the power to govern, replaced the Supreme Court and over 400 judges with its own appointees, and took over the universities.[15] The new regime initiated a brutal campaign of repression, justified by the United States’ doctrine of “National Security” and by the alleged necessity to fight a “dirty war” against terrorism. But the “dirty war” soon extended far beyond any conceivable terrorist targets to anyone suspected of “subversive” thought—journalists, young peronistas, trades unionists, nuns, and anyone else who happened to get in the way.[16]
The operations were carried out in secrecy and added new words to the lexicon of international human rights violations.[17] Under the direction of the military and the police, students, workers, and professionals, who were considered too leftist or subversive by the regime, were disappeared. They were abducted by anonymous men in plain clothes driving unmarked Ford Falcons. The victims were often never to be heard from again. Many thousands were disappeared in this fashion.[18] The secrecy permitted the regime to carry on daily life with surface normality, while operating hundreds of concentration camps or detention centers where many of the abducted were tortured and finally killed. The junta continued to deny reports of the disappearances publicly and to the international community. The security forces went to great lengths to conceal the fate of the disappeared and to demoralize and silence the population by the secret terror.[19] It was later remarked that
*** Top of Page 128 ***the “intention [of the regime] was to make all the Argentineans disappear as persons and as citizens. That is to say, they meant to disappear our national identity.”[20]
There was another facet of the “dirty war”—kidnapping of the young children of the disappeared, and often putting them in the hands of families of the very military or police forces implicated in the torture and death of their parents. Later, an official report issued by the Argentine National Commission on the Disappeared (CONADEP) condemned:
[t]he repressors who took the disappeared children from their homes, or who seized mothers on the point of giving birth . . . . [They] were making decisions about people’s lives in the same cold-blooded way that booty is distributed in war. Deprived of their identity and taken away from their parents, the disappeared children constitute, and will continue to constitute, a deep blemish on our society.[21]
The term botin de guerra, or war booty, came to represent the wrongs inflicted on the kidnapped children.[22] Some children were taken by the abductors with their parents or left behind in the sweeps and ended up in orphanages or with neighbors or strangers.[23] Sometimes the families were clearly guilty of complicity, and sometimes they were only guilty of taking in a child without searching for her remaining blood relatives and preserving her identity. Some babies were actually born in captivity, in places like the notorious Navy Mechanics’ School detention center (ESMA) or the Campo de Mayo Military Hospital, before their mothers were disappeared forever. Witnesses told CONADEP that at the Navy Mechanics School there was a list of childless married couples in the Navy who were seeking a child born in captivity to raise. Whether born in captivity or not, the children of the disappearedmight be falsely registered as born to the families who took them to raise, or might be adopted based on falsified documents. In some cases, however, the raising families were friends or neighbors who actually preserved the identities of the children.[24]
After 1977, human rights groups protesting the disappearances and the related kidnappings of the children of the disappeared played a critical role in
*** Top of Page 129 ***civilian opposition to state terror.[25] Among these were the courageous Madres de Plaza de Mayo (Madres or Mothers). The Madres created a domestic political movement and an international human rights institution out of their demands for the return of their missing children disappeared by the anonymous forces of the regime. They first began meeting in public at the Plaza de Mayo in front of the Casa Rosa on April 30, 1977 in order to demand information. They continued this tactic for years, forging a political movement in the process that ultimately sought the return of democracy to Argentina.[26] In the same year, another organization arose called the Abuelas de Plazo de Mayo (the Abuelas or Grandmothers), an offshoot of the Madres. The Abuelas received denunciations,[27] documented files, and initiated searches for the children kidnapped during the abductions or born in the secret detention camps, whom they believed had been appropriated as “war booty” by minions of the regime.[28] In 1980, the Abuelas had their first success finding stolen children when they located seven-year-old Tatiana Britos and her sister Laura, who had been adopted by a military family.[29]
In 1981, the Abuelas took their stories to the international arena, presenting seventy-seven carefully documented cases of missing children, either born in captivity or kidnapped along with their parents.[30] The Abuelas also sought assistance from the international scientific community. In the absence of their disappeared parents, the children’s identity could only be established by genetic tests for the biological links between the children and their grandparents or other, more remote family members. The Abuelas enlisted the American Association for the Advancement of Science and geneticist, Dr. Mary-Claire King, in their cause. Dr. King’s work broke new ground in establishing genetic links between children and kin other than their parents.[31]
*** Top of Page 130 ***By 1980 and 1981, the activities of human rights groups, including the Madres and the Abuelas, and their growing ability to reach international audiences were serious problems for the military regime. Economic crisis on top of that further eroded support for the government. Already before the military’s disastrous decision to undertake a war with Britain over theMalvinas/Falkland Islands, there were mass strikes and multiparty calls for a return to constitutional government. The humiliating defeat in that war may have merely accelerated the military’s loss of power.[32] But even on the way out, the juntas tried to ensure impunity for their abuses. After its efforts at self-justification were resoundingly rejected by mass human rights demonstrations, the military issued an amnesty that purported to include actions by both sides during the “dirty war.”[33] The military also systematically destroyed documents and archives pertaining to the “dirty war.”[34]
The military did not succeed in its quest for impunity at this time. Raúl Alfonsín, the candidate of the Radical Civic Union party, won the democratic elections in October, in large part on the strength of his human rights stance. The military’s self-amnesty was voided and the new government appointed a Commission on the Disappeared with full powers to investigate and report, although not to prosecute, the late abuses. CONADEP, which was headed by the respected writer Ernesto Sábato, took testimony from thousands of witnesses, visited the secret detention centers, and produced a frightening picture of the disappearances in a report called Nunca Más (“Never Again!”).[35] This report was widely publicized, however, the trials that followed were highly controversial.[36] In the end, government-sponsored trials of nine military commanders resulted in the December 9, 1985 conviction of five of them. Jorge Videla and Emilio Massera, the commanders of the Army and Navy, received life sentences, while three others received shorter sentences, and four were acquitted. The government lost control of the prosecutions when thousands of cases were filed against these and other officers by individuals, human rights organizations, and others.[37]
*** Top of Page 131 ***Just as the trials of the former military leaders were starting in 1984, a film called Official Story opened in Argentina. The acclaimed film, which later won an Academy Award, further focused international attention on the children of the disappeared. The film is a fictionalized account of a child of disappeared parents who was “adopted” by a father who was complicit in the abuses of the regime, and a mother who only slowly came to realize the tainted origins of her apparently happy family life.[38]
In real life, the first disputed custody court case in which genetic evidence was critical came to conclusion in 1984.[39] The Abuelas subsequently pressured Alfonsín’s government into establishing a National Genetic Data Bank to store and preserve blood samples that could be used to identify the origins of children even after the deaths of their grandparents.[40] In 1988, the Abuelas extracted a further concession—the government named a four-person commission to determine the whereabouts of the children.[41] Continued frustration with the slow and politicized process of restoring children led to renewed international pressure in 1993. President Menem met with the Abuelas and agreed to set up the National Commission for Identity Rights “with broad powers of subpoena and investigation.”[42]
Even after the return of democratic government in 1983, however, the military remained a powerful force in Argentine political life. In the face of continued military unrest and three outright uprisings,[43] the government equivocated about enforcing accountability. Two laws, the Punto Final of December 1986 and the Law of Obediencia Debida (Law of Due Obedience) of 1987, granted significant amnesty to those responsible.[44] The net result was an end to future charges, recognition of a defense for junior officers who could claim they were “just following orders,” and, in 1989 and 1990, pardons from the next President for those already serving time for human rights violations, including Videla and Massera.[45]
This impunity, however, came with a significant exception. Article 5 of Law 23.492, the Punto Final, provided that the legislation would have no
*** Top of Page 132 ***effect on criminal cases involving alteration in civil status or kidnapping and concealment of children. Article 2 of Law 23.521 (Due Obedience) exempted certain crimes from the “just following orders” presumption, otherwise afforded junior officers. This included rape, kidnapping and concealment of children, and substitution or misrepresentation of the children’s identity.[46] However, little could be done at this time to pursue those responsible for these kinds of crimes; the military apparently destroyed archives containing evidence about the children’s kidnapping, making it extremely difficult to put together a case against the commanders for an organized plan.[47]
III. Searching for the Children of the Disappeared:
The Abuelas de Plaza de Mayo
The organization of the Abuelas and the tactics the Abuelas originally employed in an effort to obtain information about their family members grew out of the horrific events that occurred during “the nightmare years” and the difficulty these women had in obtaining information under such circumstances. The Argentine National Commission on the Disappeared (CONADEP) reported later that the typical sequence of events during the “dirty war” was “abduction–disappearance–torture.”[48] In this fashion thousands of
*** Top of Page 133 ***mostly young people were disappeared. The Commission found it striking that women were included on a large scale, representing over thirty percent of the disappeared. Three percent of the total was pregnant women.[49]
When a family that was to be chupada (slang for sucked up or swallowed) had young children, certain methods were followed. The children might be left with neighbors until a relative came for them or sent to children’s institutions that either held them until they were turned over to relatives or adopted by strangers. The children themselves might be abducted and adopted by a member of the armed services. They might be taken directly to a relative’s house, maybe even in the same vehicle used to abduct their parents, or left abandoned wherever the kidnapping of their parents occurred. Finally, some children were taken to secret detention centers where they witnessed the torture of their parents, or were tortured themselves in front of their parents.[50] Many babies were born in these detention centers, often joining other children of the disappeared in disappearing themselves.[51]
The relatives of these young children found obtaining information from the authorities about the children’s whereabouts very difficult and risky. For example, Señora Maria Isabel Ch. De Mariani, who became the president of the Abuelas, knew that her granddaughter Clara Anahi Mariani was taken up at the same time that her daughter-in-law was killed in La Plata in November of 1976. The grandmother waited fruitlessly outside the army headquarters for the three-month-old to be handed over to her, waited at home every night, and even was bold enough to enter a police detention center. Although an inspector told her that the child was alive, he said he would deny ever having said so. Following a suggestion to carry on her search (búsqueda) at the Minors’ Court, Mariani was directed to another grandmother with a disappeared grandchild, Alicia de la Cuandra. Hearing about the early meetings of Madres, their first marches in the Plaza de Mayo, and their collective habeas corpus petitions for 158 of the disappeared, the two grandmothers decided to go to the federal capital in October of 1977.[52] There the Madres themselves were experiencing repression[53] and were trying to appeal to international opinion through the visit of the United States’ Secretary of State, Cyrus Vance. The incipient Abuelas organization decided to present their case through a letter to the Pope. They also visited all the civil courts in the capital and Minors’ Courts in the province of Buenos Aires and wrote to courts throughout the rest of the country. In April of 1978, a motion was filed in the Supreme Court of Argentina (Corte Suprema de la Nación) to reclaim one of the children of the disappeared.[54] The Supreme Court, however,
*** Top of Page 134 ***ruled that under the separation of powers of the Argentine system of government, it was without power to decide such a case.[55]
The failure of judges and functionarig information on their missing grandchildren. The Abuelas persuaded the OAS to open a case and traveled to Europe to carry their story to a wider public. Information began to accumulate about clandestine detention camps, kidnappings, and births in captivity in the infamous Navy School of Mechanics and Hospital of the Campo de Mayo.[56] Amazingly, all this activity continued in the middle of the terror, with disappearances intense between 1976 and 1979 and peaking by 1980 and 1981.[57]
In August of 1979, some children were located in Chile by a Brazilian rights organization,[58] and in March of 1980, the Abuelas had their first success: they located two sisters, Tatiana Ruarte Britos and Laura Malena Jotar Britos.[59] In October 1977 in the province of Buenos Aires, two girls named Tatiana and Laura had disappeared with their mother and with Laura’s father. Tatiana’s father had been disappeared the previous year.
*** Top of Page 135 ***In this case, the raising parents were “innocent” in that they were not involved with the military regime. Inés Sfilgoy and her husband Carlos were a childless couple trying to adopt a newborn baby in the Juvenile Court in San Martín (Juzgado de Menores de San Martín). In this same court, after a police officer reported finding the two children, (a three-year-old in good health and a sickly four-month-old baby), a judge had committed them to the keeping of separate children’s institutions. When Inés saw the sickly infant in the arms of a court employee, she asked if she could have that child instead of the healthy newborn whose papers she had already received. Inés said she felt that something was wrong and then saw the older girl behind some furniture. Upon learning that the two girls were sisters, the couple asked to take them both, but the court said the older one was meant for another family. Several days later, however, an employee of the court called to offer her to them as well. The adoptive parents apparently grew suspicious about the circumstances and decided not to go back to that court anymore.[60]
Little by little, the adoptive parents learned pieces of the children’s story. Tatiana knew her own name and also that the baby (from whom she had been separated for six months) was called Laura. Tatiana had some emotional problems; she did not want to talk about her past, and she seemed afraid of going out. Eventually, the Sfilgoys became suspicious enough to see the judge to ask if these children were from people who had been detained or who no longer existed. Inés recounted later that they were uncomfortable using the word “disappeared” in front of the judge and did not believe that their children’s case was related to all of the horrible things that were going on at the time. When the court seemed to deny any connection, they were put at ease.
After time passed and the court determined that they adequately cared for the children, Inés and Carlos Sfiligoy were granted permanent custody. But in 1980 they received notification from the court that informed them that the grandmothers of the children were claiming them, with the help of the Abuelas de Plaza de Mayo. The Sfilgoys were required to present the children to the court for these grandmothers to see.[61]
Then vice-president of the Abuelas, Estela de Carlotto, recalled how one of the missing children’s grandmothers, María Laura de Jotar, had come to them for help. From information on the baby’s birth certificate, they located neighbors of the disappeared family who told them what happened. That led them to the local court of San Martín where the Abuelas left copies of the birth certificate, pictures, and a request to search for the missing children. The judge took a personal interest in the case, assigning a social worker to help, and apparently became convinced that she had located the right children. By this time Tatiana was eight years old and Laura was three. Before going into the court for the face-to-face meeting with the grandmothers,
*** Top of Page 136 ***Inés and Carlos consulted a psychologist, who advised them to say something to the older girl about trying to recognize the woman she would see, but Tatiana hung back and did not admit to recognizing her grandmother. Inés commented later that she thought Tatiana did not want to recognize her grandmother because she was afraid of the changes this might bring, but that eventually she was happy to know her family.[62]
The adoptive parents made a direct plea to the court and to the grandmothers; Carlos proposed that they be able to keep the children, but to include the grandparents in their lives, as a kind of emergency situation until the children’s biological parents appeared. This was agreed. The initial visitations, however, evoked trepidation on the part of the Sfiligoys, who feared that the children might even be snatched from them. Eventually, they came to cooperate with the children’s blood relatives. Inés explained that it was reassuring to Tatiana to learn that her mother had not abandoned her, but that they were separated for other reasons. The child was relieved when Inés promised to look for the answers together. In the end, the Sfiligoys persuaded the grandmothers that they were better equipped to raise the sisters. They never obtained what is called an adopción plena, or full adoption.[63] Instead, they were confirmed in an adopción simple.[64] The ability to reconstruct their identity was a positive change for the children. Inés told a story about the younger girl, at age four, joining in a patriotic celebration in school by telling the story of her parents being taken away by uniformed men. While the other children said her parents must have been bad to have been taken in this fashion, she insisted this was not so.
Although the adoptive parents shielded their children as much as they could from media attention and publicity, in the end, they all became an integral part of the Abuelas organization. They felt that even without blood ties, they were a family, united by the ties of love. At the same time, they responded to the message of the Abuelas, which was about the children’s reality. It was only natural for them to be involved. Although they recognized that they were in a different position and might not be accepted by families
*** Top of Page 137 ***seeking to recover their missing children, they came to the conclusion that they had a lot in common with them and that there was not a single correct model for resolution of these tragic cases.[65]
In some ways, the story of the Britos children was uncomplicated. Once they were located, there seems to have been little doubt or dispute about their identity. The blood family of the girls did not have the resources to raise the girls and did not seek to take full responsibility for the children. The Sfilgoys were “innocent” of the terrible crimes of the regime and had never lied to the girls about being adopted. In line with the ideology of the Abuelas and the wishes of the biological familiy, Inés and Carlos recognized how important it was for the sisters psychologically to know the truth about their origins. They were willing to enfold the blood relatives into a larger family, and the blood relatives were willing to let them do this. The parents and children ultimately became an active part of the Abuelas’ organization. This is not to say that the course of this resolution ran smoothly; the families negotiated over a period of years, with confusion and fear on all sides. The location of the Britos children, however, constituted the first success attained by the Abuelas.
IV. Proving Blood Ties: Paula Logares and Laura Scaccheri
The recoveries of two other children located by the Abuelas, Paula Logares and Laura Scaccheri, were not so simple. In each case, the parents who were raising the children denied the identity of the child and refused to reach any accommodation with the biological family. As a result, the establishment of identity in court through blood tests and other genetic proofs became a central issue for each case. Little legal precedent existed for reclaiming the children or punishing their kidnappers,[66] and there was no accepted scientific test for establishing the affiliation between grandchildren and grandparents in the absence of the disappeared parents. Although issues such as the nullification of fraudulent adoptions were civil matters to be heard in civil courts,[67] many of the disputes over blood testing and the critical decisions on custody were heard in the first instance in federal criminal courts, which exercised a kind of auxiliary jurisdiction over minors alleged to be victims.[68]
*** Top of Page 138 ***In 1984, the same year that CONADEP was taking testimony and proclaiming Nunca Más (“Never Again!”),[69] blood tests were decisive for the first time in a case involving a child ofdisappeared parents, Paula Logares. The Abuelas recruited an American geneticist to develop an “index of grandpaternity” and also gained the support of the Ford Foundation to establish a genetic data bank at the Durand Hospital in Buenos Aires, where testing could take place and data could be stored for the eventuality of locating more children. In 1987, the Supreme Court of Argentina definitively declared the probative value of blood testing in the Laura Scaccheri case. In the same year, the Argentine National Congress passed a law which gave the Durand data bank official standing, while also dictating the legal effect of blood tests in cases involving the children of the disappeared.
The resolution of the question of the legal effect of blood tests, however, did not provide the entire answer to these difficult cases. Although one instance involved raising parents whom the Abuelas considered to be “repressors” and the other did not, both Paula and Laura became the subject of custody disputes in which courts had to determine not only identity, but the placement of a somewhat older child after her true identity was confirmed. This made some judges feel like they were being asked to make King Solomon’s decision and posed questions about the “best interest of the child” in the strongest possible terms.
Paula Eva Logares was twenty-three months old when she was abducted in Uruguay on May 18, 1978, along with her parents who were in exile for their activities in the peronist youth movement. Her parents were never seen again.[70] Paula’s grandmother Elsa Pavon had searched fruitlessly for the child on her own in Uruguay and in Argentina until she was asked by the Abuelas to work with them.[71] During the dictatorship years the child was spotted briefly in 1980. She was in the hands of Ruben Lavallén, a police officer, and his common law wife Raquel Leiro.[72] Paula’s grandparents received photos of the girl sent by suspicious neighbors who overheard the Lavallens arguing one night. The adoptive mother was heard to say: “You killed the parents of this little girl and then you bring her to my house and expect me to care for her.”[73] But the child soon vanished from sight. Three
*** Top of Page 139 ***years later, when her grandparents located her again, the girl was seven years old and registered in kindergarten as the biological child of the Lavallén couple. She had a false birthdate and looked younger than her years.[74]
Little by little, the grandmothers built a case for the child’s true identity. They appealed for political intervention in the middle of 1983 without any success, but on December 13, 1983, three days after the investiture of the democratic government of Raúl Alfonsín, grandmother Elsa, the Abuelas and their lawyers went to court. However, it was a full year before she was restored to her biological family. One difficulty was that x-rays seemed to indicate the frame of a six-year-old, as claimed by the Lavallén couple, and not the now seven-year-old, who had been kidnapped years before.[75] The Lavallens took the position that they did not have to offer evidence because they had nothing to prove. The “parents” refused to take a blood test.[76] Judge Fegoli was reluctant to act, but due to the unceasing pressure of the Abuelas and its expert teams, he ultimately ordered blood tests of the child.[77] The genetic test, which was the inaugural effort of the team that had been trained in the new techniques at the Durand Hospital, established that the child inscribed as Paula Luisa Lavallén was in fact born as Paula Eva Logares.[78]
Before the Logares case, the legal precedents about blood tests were at best uncertain.[79] The legal recognition of the probative value of genetic testing developed side by side with the scientific advancements growing out of the Durand Hospital project. Even before the fall of the dictatorship, the Abuelas recognized the need for international aid in establishing scientific proof of the missing children’s identities.[80] Afterwards, members of the American Association for the Advancement of Science sent a forensic team
*** Top of Page 140 ***to help identify the bodies of the disappeared found in mass graves.[81] In June 1984, another team of experts led by Dr. Mary-Claire King of Berkeley flew to Argentina to help with the identification of the children of the disappeared.[82] Dr. King (who was a geneticist from the School of Public Health at Berkeley) and the team of experts met with the Abuelas and with Argentine medical professionals to demonstrate a technique that “uses laboratory analysis of genetic markers in human blood to calculate an index of grandpaternity.”[83] This method compares the probability that a child shares genes with a specified set of grandparents because of a familial relationship with the probability that the genes are similar only by chance. The approach “can prove a child’s identity with a probability exceeding 95 percent.”[84]
Genetic testing for “inclusion” is procedurally simpler than testing for “exclusion.” Testing for inclusion, as in Dr. King’s index of grandpaternity, only requires blood samples from the children and from those who are claiming to be their biological grandparents. Testing for exclusion, however, requires a blood sample from the raising parents to determine whether or not they could be related to the child they claimed as their own. Often faced with criminal charges, the parents in possession generally would not agree to be tested themselves.[85] In the years following the introduction of the “index of grandpaternity,” the Abuelas found that Argentine judges often were unfamiliar with the testing methodology and refused to afford it the importance it deserved. In one instance, court forensic experts confused basic concepts of “inclusion” versus “exclusion,” as a result artificially lowering the percentage figure for the index of grandpaternity.[86]
The American Ford Foundation became involved with the Abuelas’ genetic identification project. On March 27, 1984, Ford Foundation representatives met with the then-president and vice-president of the Abuelas. The
*** Top of Page 141 ***Ford Foundation field representative reported that the Abuelas had documented 142 cases of disappeared children and had already located twenty-five of them.[87] The Ford Foundation gave an initial grant to the Abuelas in 1985 to enable the organization to develop a systematic data bank containing the genetic records of all living family members of kidnapped children[88] and renewed the grant several times until finally closing it in 1990.[89]
There are two interesting features of this Ford Foundation involvement. First, although there were a number of other human rights organizations that courageously fought the dictatorship and were struggling to reestablish democracy in Argentina, the Ford Foundation seemed to prefer the Abuelas. Foundation officials viewed the Abuelas as less politicized and more practical and realistic than other groups.[90] A Ford Foundation field representative noted a significant distinction between the Abuelas and other human rights organizations such as theMadres group from which they sprang: “The Abuelas seem far less politicized and more concerned with finding children than seeking retribution.”[91] This was particularly important in an otherwise discouraging climate in which the “democratic” regimes that followed the juntas seemed bent on pardoning them for their crimes of state terror without ever coming to terms with what happened during the nightmare years.[92] There was more than a little realpolitik in this assessment. While the increasing legal impunity blocked human rights’ efforts generally, the exemp-
*** Top of Page 142 ***tions in the pardon laws permitted the grandmothers to continue unabated in their pursuit of the missing children.[93]
Second, in addition to serving its general political goals, the Ford Foundation also showed concern about the impact on individual children of being returned to biological families they may never have known. Foundation officials required and received reassurances from the Abuelas that the psychological and emotional interests of the children were being taken into account in their work.[94] The Abuelas supplied this reassurance by assembling a mental health team to provide transitional services and also by displaying flexibility in the resolutions that they demanded. Given the right set of circumstances and adoptive parents who were relatively free of guilt, the Abuelas were willing to accept arrangements that left the child with the adoptive family, while restoring her name and identity and the opportunity to interact with her biological family.[95] The Ford Foundation was convinced that in other circumstances, the children would experience less psychological trauma by being separated from their “adoptive” parents than they would from later learning that those people were directly or indirectly involved in the murder of their biological parents.[96]
In Paula’s case the Abuelas considered the Lavalléns to be repressors and, therefore, sought her immediate return. However, the lower level federal criminal court left the Lavalléns at liberty and the child with them temporarily.[97] Paula’s grandmother Elsa appealed the lower court’s refusal to grant her custody while the criminal case proceeded. She questioned the safety of the girl under the present circumstances, asking whether there was anyone who could grow up healthy without knowing her real history.[98] The defense raised two arguments in opposition. The Lavelléns first challenged the ve-
*** Top of Page 143 ***racity of the genetic tests and continued to insist that Paula was their child. They also made an argument based on the best interest of the child (al interés de la niña (favur minoris)). They cited many cases in which courts granted permanent custody (“guarda definitiva”) of a child to someone who took care of her after her parents abandoned her. They called these guardians “padres de crianza,” or raising parents.[99] According to the lawyers, these cases emphasized the interests of the child rather than the criminal conduct of their protectors.[100] In these decisions, there was an effort to protect the children from disturbance, trauma, or custody changes solely in the interests of third persons, even if these third persons were the blood parents. The Levalléns’ lawyers thus argued that the child should remain with the persons who raised her.
Despite the defense’s arguments, on December 13, 1984, (a full year after the Abuelas first filed), in the first legal decision to restore one of the children of the disappeared,[101] the appellate court decided to return Paula to her biological family.[102] There are three aspects of Paula’s case that are worthy of note, two of which have been discussed already. First, theAbuelas in effect had the burden of proof in order to persuade a court to order compulsory blood tests of the children alleged to have been kidnapped.[103] They had to meet a kind of probable cause standard that the child in question was not the child of its apparent parents but instead was most likely a child of disappeared parents and also related to the grandparents who filed the complaint. To a certain extent, the social predicate for this probable cause was created by the revelations about the nightmare years through the work of human rights groups such as the Abuelas and of CONADEP’s 1984 report, Nunca Más. The Abuelas established the predicate for going into court on an individual case through the meticulous accumulation of pictures and reports gathered from informants and from their own observations.[104] Once the judge was persuaded to order the tests, however, the second issue was the question of their legal effect. Paula’s case was the first in which genetic analysis was a significant element of proof of the child’s identity. However, it was legislation and another child’s case that finally established the legal effect of those tests.[105] The third and last question in Paula’s case was that of the remedy.
*** Top of Page 144 ***One of the appellate judges who made the decision to return Paula to her grandmother later gave an interview explaining the debate that went on in the court and the rationale behind the court’s decision.[106] He explained that the court was convinced from the beginning that the best interest of the child (“favur minoris”) had to be foremost. But that did not imply acceptance of the arguments of the defense. The court consulted with psychologists who warned them that concealing the truth from Paula would precipitate a serious crisis when she reached puberty. Thus, their beginning principle was that it was in Paula’s best interest to learn the truth.
That still left the judges facing three alternatives. First, they could allow Paula to remain with the Lavelléns, who had not been convicted of anything yet, but insist that the girl be told of her origins. The judges discarded this alternative because they felt it would give the girl double messages and generate too many contradictions for her. A majority of the court seemed to like a second alternative, which was to place Paula with a substitute family until there was a definite verdict on the charges against the Lavalléns. This was attractive in part because they worried about the grandmother’s reaction— how balanced she could be in communicating to the girl in view of the dramatic events and losses she had suffered. But the appeals court discarded this seemingly neutral alternative because they feared it would force Paula to experience two uprootings. They doubted, moreover, that a truly neutral family could even be found. Judge D’Allessio himself believed that placing Paula with a substitute family would have been just like King Solomon’s decision to cut the baby in half.[107] Instead, they opted for a third alternative, which was to restore Paula to her legitimate family. Judge D’Alessio concluded that time would show the wisdom of this decision.
Even with the Abuelas’ medical team on hand to help with the transition, the restitution was difficult at first. Interviewed nine years later at age seventeen, Paula remembered trying to run away from her grandmother around a big table in the courthouse on the day that the court ruled on her custody.[108] At the time, the girl accused her grandmother Elsa of lying to her, insisting “Rubén is my father; Raquel is my mother.”[109] But the then eight-year-old was also fascinated by the photographs of herself as a baby with her missing parents that Elsa had brought to show her.[110] Elsa Pavon, an Abuela and
*** Top of Page 145 ***Paula’s maternal grandmother, subsequently reported that the child “cried for two or three hours after the court ruling” forcibly returning her to her family of origin. But Pavon said that the child “never cried again over those people. When Paula refers to them now, it is as Rubén and Raquel, not as ‘mama’ and ‘papa’ as at first. She is a very happy, talkative, studious, and energetic child. She is an absolutely normal 11-year old.”[111]
In an interview Judge D’Alessio noted that Paula was sent home with her grandmother on a Thursday and the judges visited her the following Monday, finding her remarkably well integrated with her family, although reluctant to be touched by any adult.[112] Fifteen days later the psychologist reported that she had finally relaxed. A full year later, the court decided that it would be a good idea to arrange a meeting between Paula and the Lavalléns. Their reasoning was that she needed time to assimilate her true identity, but that there were still missing pieces if the years she spent being raised by the Lavalléns were simply ignored. The court took this course apparently even in the face of contrary advice by psychologists and opposition from the Abuelas. Paula, however, was not interested in talking to the Lavalléns.
Paula became incorporated into a family quite different than the one she had left behind; instead of the six years she spent with the Lavallens in a wealthy neighborhood, attending private Catholic school and imbibing conservative values, she was reintegrated into a lower middle-class Jewish family of left-leaning sympathies. Although not that talkative when she was interviewed in 1994 at age seventeen, Paula was emphatic that she never wanted to go back to her pseudo-adoptive parents.[113] The struggle to regain Paula’s identity continued even after her restitution to her grandparental home; although the court recognized that her identity papers were forgeries in the 1984 proceeding, it refused to issue new ones.[114] For the next four years she remained Paula Lavallén until the family finally obtained new identity documents.[115]
Paula’s case against the “repressor” Lavallén family was the first instance where the new genetic tests established a child’s identity in court. The case of Laura Ernestina Scaccheri was theonly instance in which the issue of the legal effect of blood tests reached the Argentine Supreme Court.[116] It estab-
Laura’s parents were kidnapped in July 1977, and their three-month old baby was left behind.[118] The Cacaces, neighbors of the family, took the baby in and raised her for eight years until the Abuelas located her in 1985.[119] The Cacaces were not minions of the dictatorship like the Lavalléns, but their hands were not entirely clean either; instead of attempting to adopt the infant, they registered her as their own. Laura’s paternal aunt brought a denunciation in a federal criminal court. The court verified the child’s identity with a blood test and, without hearing from the parties or considering the wishes of the girl, awarded immediate custody to the aunt on March 13, 1986 with no visitation rights to the Cacaces. The Cacaces, however, appealed, and the next level ruled that there was no jurisdiction in the federal criminal court to decide custody of this child.[120] Rather, the aunt must go to civil court, and the girl was to be returned to the Cacaces.[121]
Federal courts in Argentina have exclusive jurisdiction over crimes that include a federal issue.[122] Like many other disappeared children, Laura’s case involved charges not only of kidnapping, but of falsification of public documents, a typical federal crime creating jurisdiction.[123]
*** Top of Page 147 ***Once the federal court takes on the case, however, it also may incur obligations that seem quite foreign to those who are familiar with the procedures for child welfare under United States’ law. Law 10.903 specifies under which circumstances a court must act in lieu of parents to exercise its patronato, i.e., to secure the well-being of a minor.[124] Where a federal crime is involved, this provision of the “Ordinary Law” is the source of the federal criminal court’s power to make a custody disposition.[125] Under the articles of Law 10.903, a court with a case that involves a minor under 18 (either as author or victim of a crime) who has been materially or morally abandoned or is in moral danger, may make a temporary custody disposition to a guardian, with or without supervision by the court. Furthermore, upon reaching a final sentence, the court may make a permanent decision.[126] The question in Laura’s case was whether or not the moral danger that triggers this responsibility includes the risk of mental or psychological injury.[127]
The Abuelas’ legal team helped the aunt to appeal the jurisdictional decision. They sought a Recurso Extraordinario, or extraordinary appeal from the Supreme Court of Argentina. While the Court was still considering its decision, a draft resolution by one of the judges, which he circulated as an internal memo, was leaked.[128] The draft by the respected family law expert and Radical Party sympathizer, Judge Belluscio,[129] acknowledged that the blood tests proved that the Cacaces were not Laura’s parents and that she was a member of the Scaccheri family. But the judge saw the issue as a question of whether it is best for Laura to remain with her supposed parents with whom she had lived her entire life or to be placed with blood relatives? He opted for the first solution for several reasons. There was no conflict in this case between the Cacaces and Laura’s legitimate parents, who were dead. Furthermore, real parental ties are not so much procreational as founded on how parents treat their children. Laura had no memory of the parents she lost at three months. For all intents and purposes, the Cacaces were her parents. Finally, on the jurisdictional point, Judge Belluscio could not see how the child could be considered either abandoned or in moral danger, as was re-
*** Top of Page 148 ***quired for the federal criminal court to have jurisdiction. He simply did not see that the single fact of having her origin hidden from her constituted such a moral danger as to trigger the provisions of the law. Indeed, he accused the lower court judge who initially restored Laura to her aunt of subjecting the child to a brain-washing worthy of the Soviet psychiatric establishment.[130]
It is worth recalling what was happening politically in 1987 when the leak of this memo caused such a storm. The elected civilian government of Raoul Alfonsín had shown a strong desire to make its peace with still-threatening military forces. Two significant amnesty laws had already been passed, the Punto Final (Full Stop) of 1986 and the Law of Due Obedience of 1987. The watchwords of the day were putting an end to the chapter of the dirty war and moving on from there. Like many other human rights groups who were struggling to defend a shaky democracy, however, the Abuelas did not accept the notion of impunity.
When the Supreme Court rendered its decision on October 29, 1987, Judge Belluscio was out of the country and did not participate. The result was quite different than he proposed. Four judges of the Argentine Supreme Court agreed that the federal criminal court did indeed have jurisdiction to determine the custody of Laura.[131] The controlling statute, Law 10.903, required evidence of abandonment or moral risk, and the statute applied either in state court or where, as here, a federal crime vested jurisdiction in the federal court. The President of the Court stated that two crimes were committed: suppression of civil status (an ordinary crime) and falsification of public records (a federal crime). The appellate briefs had argued that the alleged altruistic intent of the Cacace family had not been proven and that the interests of all of society were affected by the problem of the missing children. Judges Fayt and Bacque concluded that there was irreparable damage to the psychological health of the child involved. While affirming the right of a federal court to provide for the custody of a child who had been the victim of a crime, they also recognized the risks to her psychological health. The judicial function to protect the child’s health, they opined, cannot be separated from the historical and social transformations of the country or its living reality. The problems of the family and the child must be taken in their cultural context. While vacating the appellate court’s ruling on jurisdiction, these judges were mindful of the special care owed to children by judges and society to ensure that they would always be subjects and not just objects of the rights of third parties.[132]
The fourth judge, Doctor Petracchi, wrote eloquently about the harm from fraudulent suppression of a legal relationship and concealment of the actual situation. Social tolerance for this practice, he wrote, derives from a
*** Top of Page 149 ***conception of children as property. Of all the judges, Doctor Petracchi insisted most rigorously on coming to terms with the nightmare years. He also was the least sympathetic to the Cacaces, mentioning that they had not made the transition any easier on Laura. Although psychologists advised a gradual introduction of the truth to avoid causing the girl any harm, the Cacaces abruptly dumped the truth of her identity on her. As a result, the girl was confused and anxious. The initial kidnapping of Laura’s biological parents and the lying by her raising parents contributed to the trauma. Doctor Petracchi argued that with the blood tests, there was no doubt about Laura’s identity. Consequently, she should be restored to her biological relations unless it was otherwise shown that for the good of the child she should continue to live with the Cacaces. However, the considerations he previously listed persuaded him that Laura’s psychological health and social and cultural development would be served best by the stable reconstruction of her identity and relationships with her biological family (not excluding regular contacts with the Cacace family). It was thus the ruling of the Court that Laura’s identity was declared and that she was placed in the permanent custody of her biological family.[133]
Paula’s and Laura’s cases established powerful, albeit nonbinding,[134] legal precedent in disputes involving children of the disappeared. Meanwhile, the Ford Foundation continued its support for the scientific work on which proof of identity rested. The last Ford Foundation grant to the Abuelas was designed to help them put the final touches on a national genetic data bank that had been officially sanctioned by the Argentine Congress.[135] In a race against time, as the grandmothers and their grandchildren aged, the Data Bank sought to complete testing at Durand Hospital in Buenos Aires of all the missing children’s relatives, including those living in the provinces of Argentina or abroad.[136]
In 1987, after intense lobbying by the Abuelas, the Argentine Congress passed a law,[137] which created a National Genetic Data Bank (BNDG) based on the Abuelas’ project at Durand Hospital.[138] Its purpose was to create an archive of genetic data and to produce reports and technical opinions by experts, as required by the judiciary. Families ofdisappeared children or those thought to be born in captivity could resort to the BNDG to register their own genetic data. In a civil action to establish filiation, a court could order genetic tests on behalf of someone with a reasonable claim (“la pretension . . .
*** Top of Page 150 ***verosimil o razonable”). Refusal to take the tests could be counted as evidence against the person who resisted.[139]
With the National Data Bank legislation, establishment of the ties of blood and the true identity of the children of the disappeared through scientific analysis became an institutionalized part of the Argentine legal system. Correspondingly, it appeared that “truth,” the accurate determination of a disputed child’s real identity, was accepted as a guiding principle in these cases.[140] This verdad or truth was not conceptualized as competing with and in tension to the best interest of the child. Rather, although the course of acceptance did not run smoothly,[141] judges and the national Congress seemingly embraced the Abuelas’ argument that knowing the reality of one’s identity was in itself in the best interest of the child. On the other hand, it was also clear that the actual custodial arrangement might vary, depending on individual circumstances.[142]
V. Extra-Judicial Versus Judicial Recovery: The Gatica Children
Ana Maria and Oscar Gatica lost both of their small children at different times.[143] They also recovered both of their children, but in strikingly different ways. The contrast between voluntary, or extra-judicial, recovery from a relatively innocent adoptive mother and involuntary, or judicial, restitution from a police commissioner implicated in the crimes of the regime, illustrates the political character of the competing versions of the “best interest of the child.”
The Gatica’s oldest child, Maria Eugenia was disappeared along with the friends of her parents who were caring for her while her parents took the baby, Felipe, for a doctor’s visit. A military officer later took Felipe and his mother, but returned Felipe to a neighbor. Both parents were exiled to Brazil shortly thereafter, where they survived the “nightmare years,” but without their children. The parents searched for their children for many years
*** Top of Page 151 ***and recovered them both, but in very different manners. After seven years, they recovered Felipe extrajudicially by agreement with a woman who was not a repressor but who had registered the baby as if he were her own child. However, they had to go to court to battle for their daughter, Maria Eugenia, who was found in the hands of a police commissioner, Rodolfo Silva, who was accused of being responsible for creating a corps of women to take temporary charge of the kidnapped children.[144]
Felipe was difficult to find because the neighbors that received Felipe from the military officer did not keep him, and the neighbors were themselves hard to locate. Even when the neighbors were located, they kept silent for a long time and were only willing to reveal that Felipe was in good hands. Finally, the neighbor woman agreed to reveal the identity of this person, but only to an intermediary chosen by the Abuelas de Plaza de Mayo. The Abuelas’ president then approached Felipe’s adoptive mother Nelly, who later told a reporter how she reacted at first; she claimed that it had never occurred to her that the child’s parents might be alive and well. She reacted with tears, a nervous attack, and hysterics, but, she says, never with hostility to the child’s parents. She explained that she obtained Felipe through a nursing sister at an infirmary. Since Nelly and her husband already had one adopted child (and previously had temporary guardianship of another child), the nurse thought of them, and they accepted. They did not attempt to adopt Felipe, however, and instead registered him as their own son. When asked why a knowledgeable notary public would do a thing like that, Nelly declined to answer the interviewer. In her own defense, she did say that she should not be taxed with complicity with the regime just because she did not have the courage to seek out the Abuelas herself. She asserted that from the age of five, she had told the Felipe that she was not his biological mother, but that she loved him like her own son. Although professing sympathy for her loss of a child, Felipe’s parents noted that although Nelly was not guilty of stealing the boy, she was guilty of remaining silent.[145]
Felipe was reintegrated into the Gatica family, while not losing his ties with Nelly.[146] The interviews with both families reveal that it was not an easy transition and that Felipe’s mother still resented Nelly’s intrusion into her family and needed psychological help to deal with it. Ana Maria told the interviewer that despite all the love Nelly gave her son, she still was the person who appropriated him and dispossessed him of his identity. At the same
*** Top of Page 152 ***time, having lost her children, she seemed to identify with Nelly’s loss too.[147] She felt that after all of her children took a vacation with Nelly, relations between her and Nelly became more harmonious to the children’s benefit.[148]
The restitution of the older child, Maria Eugenia, required judicial action against a “father” found to be criminally responsible for a number of serious offenses. Rodolfo Oscar Silva was a police commissioner who played an active role in the dirty war’s campaign against “subversives;” he was said to be responsible for a “female brigade” which temporarily took charge of children in La Plata after their parents were kidnapped. Even in prison, however, he was unrepentant, denying the charges of which he was convicted and the reality of the kidnappings.[149]
Silva and his wife already had a little boy when he took the three-year old Maria Eugenia and rebaptized her as Elisabeth Silvina. His son died, however, and he poured all of his affection onto the girl, continuing to see her virtually weekly even after he separated from his wife, who moved 300 kilometers away. The Abuelas suspected that this girl was the Gatica child and secretly obtained photos of the now nine-year-old for the family to scrutinize. Even when old photos seemed convincing, the Abuelas explained that although they might create a strong presumption, blood tests were necessary for proof.[150]
Fortunately, the case was randomly assigned to Judge Borras, a criminal judge described by interviewer Irène Barki as an old humanist influenced by Anatole France.[151] Even during the nightmare years, this judge had procured a conviction against a police officer who beat three people in a bar. Judge Borras lost no time in ordering Silva, his wife, and the child to submit to blood tests at the Durand Hospital, but Silva refused to comply. A further order also was to no avail. Finally, the court had to resort to force, and in September 1985 Judge Borras referred the matter to the Juvenile Court in San Nicolas. The Durand Hospital genetic team waited in one part of the court building while court employees went to look for the girl at school, but she was not there. She was located in La Plata with her father and was brought into the court for testing, confused and upset that she was to have blood drawn though she was not sick and her “mother” was not there. The blood sample, when analyzed, proved that she was Maria Eugenia Gatica.[152]
*** Top of Page 153 ***The nightmare was not over, as Silva fled with the child, telling her “lies” about the situation. Finally, he turned himself in, along with his wife and the girl. On September 18, 1985, the court proceeded with the reintegration of Maria Eugenia into the Gatica family. The judge himself prepared the way, meeting alone with the girl even before the child psychologist of theAbuelas’ expert team, Dr. Norberto Liwski, saw her. Following these meetings was the reunion. Maria’s parents entered the room, the mother singing a favorite childhood song to her. At this, the girl leapt into her mother’s arms. After the meeting the family retreated from public view, reaquainting themselves with each other with the assistance of the child psychologist. They later told their interviewer that there were no problems reintegrating Maria Eugenia into an extended family with siblings and with cousins who were the same age as the girl.[153]
On February 25, 1986, Silva was convicted of the crimes of kidnapping minors, aggravated suppression of civil status, and forgery of public documents. He was sentenced initially to a four-year prison term. Although the kidnapping charge was not upheld on appeal, the prison sentence remained.[154] There also was a civil damage award for “moral damages,” which in civil law countries includes any moral, physical, spiritual, or emotional distress, pain, and suffering that a person may experience as a result of a wrong inflicted by another.[155] Silva’s defense had been twofold; he still questioned the validity of the blood tests and the identity of Maria Eugenia. At the same time, although he refused to say from whom he received the child, Silva portrayed himself as the rescuer of an abandoned and endangered child. He argued that he raised her and educated her as his own child for eight years.[156] Judge Borras accepted neither argument.
The Judge first ruled that the tests which compared the child’s blood to that of the Gatica couple, her biological parents,[157] were valid despite defense arguments based on a 1982 opinion by his superior court, the Supreme Court of Buenos Aires.[158] Judge Borras found blood testing to be a sui generis
*** Top of Page 154 ***measure of proof, not requiring certain procedural formalities, and that it must not be treated as a seizure. He further found that this valid scientific proof established the identity of Maria Eugenia Gatica.[159]
The question of the legality of compulsory blood testing was not resolved until rulings by the Argentine Supreme Court in December of 1995 and in 1996. With respect to the minors, the Court ruled that even in a criminal case against “parents” who were charged with falsely registering children as their own, compulsory blood testing of the children worked no violation of the constitutional guarantee against self-incrimination of Article 18 or of other basic liberties, such as the right to privacy. The Court distinguished the production of material evidence from the kind of compelled communication prohibited by the Constitution. It did not see the extraction of a few centimeters of blood by ordinary scientific methods as a violation of basic liberties, particlarly in light of the superior liberty interests of another, the defense of society, and the prosecution of a crime. The privacy argument failed because the basis of the objection was not actually to protect the body, but rather to create an obstacle in a criminal investigation in which the objectors were the accused, and the minors were the victims, third parties whose rights were violated. The test was neither degrading nor humiliating. Finally, under the Convention of the Rights of Children, incorporated into the Argentine constitution on a par with other constitutional provisions, the child had a right to know her identity.[160] Whatever the merits of the self-incrimination objections by defendants to the extraction of their own blood, the Court made it clear in a 1996 case that the reasoning could not bar the testing of the blood of those with conflicting interests, that is, the minor victims.[161]
*** Top of Page 155 ***Dr. Borras also rejected Silva’s second defense, that he “rescued” an abandoned child. The Judge was convinced that the police commissioner knew the truth about the origins of the girl.[162] Rodolfo Silva, on the other hand, clung to his version of the “Official Story” even after he was sent to prison.[163] He spoke only of his “daughter” and denied all the charges of which he had been convicted. He said he was never engaged in the struggle against subversion or any kidnapping of children.[164] Indeed, in a manner reminiscent of those who say the Holocaust never happened,[165] he insisted that many of the infamous events of Argentina’s nightmare years were pure fiction. He still balked at the child psychologists’ recommendation that the girl needed a clean break with her past with him and protested that he loved her and would do her no harm.[166]
*** Top of Page 156 ***The Abuelas’ child psychologist, Dr. Norberto Liwski, however, questioned this kind of love. “Do you call this love?” he said, when people take children and reduce them to war booty, appropriating them like commodities, falsifying their identity, raising them amid lies and falsification, stealing a part of their past, after directly or indirectly being implicated in the deaths of their parents?[167] Dr. Liwski argued that this kind of emotion is merely the desire to possess a coveted object, not the true love that requires respect for the other, for the truth of her identity. Nothing was more important for the stability of a child than this truth. Indeed, Dr. Liwski remembered one day when he took leave of Maria Eugenia playing happily with her cousin, and she said to him “Goodbye, Mr. Truth.”[168]
VI. Worse than Slavery?:
The Best Interest of Kidnapped Children
By 1988, the Abuelas, their expert psychological and legal teams, and the jurists who agreed with them had articulated a fully developed definition of the “best interest of the child,” a counter-story to the version offered by the “parents” who were found in possession of the kidnapped children. Although the need to do justice in the face of such horrors clearly counted, the emphasis was on the “best interest of the child,” defined by the healing power of “truth.”
This can clearly be illustrated by the 1987 recovery of María José Lavalle Lemos, the second child born in one of the secret detention camps to be returned to her biological family.[169]The Lemos case is particularly revealing because the opinion was written by Dr. Juan Maria Ramos Padilla, who was involved in four judicial restitutions.[170] In 1987 and 1988, theAbuelas held conferences which reached resolutions incorporating the Abuelas’ positions on restitution under a variety of circumstances.[171] All these sources reflect that the Abuelasalways had to fight for their version of the “best interest.” After one more major success in 1989, to be considered in the next Part, and amid a changing political climate, the tide of public opinion turned against restitution of the children of the disappeared to their families of origin. These developments underline once again the accuracy of Martha Fineman’s observation that family law decisions are “inescapably political.”[172]
*** Top of Page 157 ***Monica María Lemos de Lavalle was eight months pregnant when she was kidnapped along with her husband and young daughter.[173] The child was returned to one of her grandparents by the authorities,[174] but Monica’s baby was born in captivity and given to a policewoman while her umbilicus was still attached. The policewoman, Teresa Isabel Gonzalez, worked directly for the Brigade of San Justo where there were a number of political prisoners. When ten years later she was called to answer criminal charges initiated by theAbuelas, Teresa averred that she wanted to cooperate with the court in every way, but that she did not remember who gave her the newborn baby. Teresa testified in her confession that she had been saying she would like a sibling for her other child, and such requests were probably the reason she was given the infant. The policewoman and her husband falsely registered the baby as their own, but blood tests taken pursuant to the genetic data bank law (Ley 23.511) proved María José to be the Lavalle-Lemos child with 99.98% certainty.[175]
Reminiscing in a later interview entitled “The Truth is the Truth,” Judge Padilla remembered that he had doubts before deciding to restore the first child to her family. He did not know what was best for her and feared that it would be painful for her learn that her so-called “parents” were not her parents after all.[176] He was persuaded less by the experts than by his own twelve-year old son, who told him that “the truth is the truth.”[177] Rejecting one psychologist’s proposal to subject the girl to ten hours of preliminary psychological counseling, the judge instead successfully introduced her to her older sister (also named Maria).[178]
Judge Padilla explained in the criminal case why he rejected the defenses of the policewoman. He was unpersuaded by arguments that it was not proper for the head of the Abuelas’ legal department, Dr. Mirta Liliano Guarino, to represent grandmother Haydee Vallino de Lemos, or even for the grandmother herself to participate as a representative of the girl, so long as there was no definite pronouncement of her identity. As to the contention that only her parents could legitimately act, he pointed out that it was not possible to forget the reality of Argentine history during these years, with its detained and missing. The judge was impatient with the argument that it was not proven that María José’s mother gave birth in a detention center because all that existed was Teresa Gonzalez’ confession. He emphareached consideration of Teresa’s sentence, Judge Padilla reflected on the sad years of recent Argentine history. The crime of appropriation of children ironically was punishable by a lesser sentence than that for stealing a car by gun, even though there was more at stake, i.e., the human rights and guarantees of children and their dignity. The judge supported the right of any person to know her own history and to be raised amid her own family. Instead of enjoying these rights, María José was treated like an object, the possession of the policewoman.[180]
Judge Padilla confronted Teresa with her lies and the contradictory messages that she communicated to María José when she likened the situation to an adoption and told the girl that she was a child not of her belly, but of her heart. Instead of this benign view of psychological parentage, he agreed with the court’s social assistant, who argued that no one can own a human being and take control of her personal, familial, and social history, consisting of the values, guidelines, beliefs, and norms of the parents who gave her life. If the parental relationship was not based on love and respect, but on falsifications and concealment, then it was injurious to the health and emotional development of the child. Just as Dr. Petracchi, the judge in the Scaccheri case, said, a case like this affects the community, if it permits toleration of treatment of a child as property. The child has suffered a serious injury by being denied her identity, by having her need to construct her own identity subordinated to the need of adults to impose a false construction.[181]
The court went on to cite famous psychoanalysts such as Winnicot, Anna Freud, P. Aulagnier, Aberastury, all of whom agreed on the pathological impact of raising a child on a lie. Double messages bombarded the child, one given verbally, the other nonverbally and unconsciously. María José had been treated for many years as a “thing.” Despite all the luxury that might surround her, she was like a domestic animal that was treated well only for the benefit of the owner. María José’s situation was worse than slavery. Slaves, at least, were allowed to know their history.[182]
Like a number of other such children, María José was treated as a child-object. Judge Padilla warned that those who have these children need to know that they are harming them. He felt that the entire society has an ethical duty to these children, who in no way could be compared to adopted children. While adoption is founded on love and respect for the individuality of the child and on the parents’ free choice, what happened to María José and the other children of the disappeared was not. The appropriation was made with fraud and falsification of documents, without law or truth,
*** Top of Page 159 ***thereby damaging the maternal relationship with Teresa from the beginning and harming the psyche of the child. Nobody has the right to suppress or hide the history of another, even if it proves painful to bring the truth out into the open.[183]
The court entrusted María José to the custody of her grandmother, Haydee Vallino de Lemos, one of the original Abuelas.[184] Both the granddaughter that was returned immediately and María José, who spent ten years in the hands of the policewoman, are now activists like their missing parents. María José was reintegrated into a large extended family and enjoys a continuing and close relationship with the judge in her case. At sixteen, she claimed that the hardest part was not the trauma of the restitution, but the continuing loss of her missing parents.[185]
Judge Padilla elaborated on the distinction from adoption he made in María José’s case in a later interview. He criticized an old-fashioned view of adoption prevalent in Argentina, which saw the institution exclusively as satisfying the desires of adults. Although a valid consideration, the most important purpose is to find a place for abandoned children without denying them the right to know their origin and identity. He was critical of what we would call the sealed-records approach, in which the law will not force the adoptive parents to reveal the truth to their children. He believed that the adoptive family should be a second-level institution, coming into play only when the biological family is not there or the child is abandoned. In any case, if there is an intent to substitute the adoptive family for the biological family, instead of love there is a background of falsehood.[186]
This issue of the distinction between appropriation and legitimate adoption of children clearly troubled the Abuelas. In a book published in 1997 on the occasion of their twentieth birthday, they included an explanation of why Francoise Dolto, a French psychoanalyst who was influential in Argentina, was misinformed in a December 1986 interview published in thePsyché
*** Top of Page 160 ***journal.[187] They insisted that the correct word was not “adoptive parents,” but rather “appropriators.” While Dr. Dolto remarked that it was important not to tell the child he was raised by executioners, the Abuelas felt it was critical to allow the child to talk about what he “knows.” The Abuelas rejected the analogy to the situation of orphaned Jewish children adopted by French families and emphatically disagreed with the contention that by taking the children from their “adoptive” family to restitute them, a second trauma was inflicted. This wrongfully put restitution and appropriation on the same level, whereas restitution is a new situation, one of truth. The children learn that their parents never abandoned them and that their families searched for them for a long time. The Abuelas insisted that their children were not abandoned or like those in a war (which Dolto studied). Rather, they could be identified, and their families were looking for them. This was more like genocide.[188]
The legal position of the Abuelas was expressed in resolutions produced by conferences in 1987 and 1988: Where a child of disappeared parents had been subjected to an “adopción plena,” or full adoption, but there was positive identification through blood tests, custody should be given to the biological family. Furthermore, in cases of false registration of the children as their own, the registration should be invalidated, the child’s true identity determined, and custody should go to the biological family. The 1988 conference in Buenos Aires recommended reintegration into biological families and compensation in damages for the crimes inflicted on the children.[189]
The Abuelas version of “best interest,” however, was never as simplistic as this sounds. Individual grandmothers clearly had their doubts.[190] Before the
*** Top of Page 161 ***Ford Foundation agreed to fund the first grant to the Abuelas, their evaluators wanted to know whether the organization had considered the disruptive effect on children of being removed from their “adoptive families” (familias adoptivas).[191] Dr. Hernández replied, saying that the problem went beyond strict limits of medical or psychological competence. To focus solely in this fashion decontextualized a social anomaly. He would judge that the restitution of the children benefitted them and would advise that they receive social and psychological support, drawing on the theories of attachment and loss developed by John Bowlby, Mary Ainsworth, and others.[192] Following up in 1985 after the first one-year grant to the Abuelas, the Foundation’s Mr. Gridley Hall explained that the impact of the knowledge of their true identity on the children tested and the effect of separating them from the only family they had ever known were major concerns of the granting agency. Potential trauma was balanced against the crime of kidnapping. Mr. Hall reported that although the Abuelaswere sensitive to the problem, they felt strongly that the children had a right to know who they were and that ties ought to be reestablished with their biological families. The Abuelas also argued that when the children became suspicious and learned the truth as they grew older, the trauma could be worse. After meeting often with the Abuelas, Foundation staff in Lima were persuaded that the organization was taking the “best interests” of the children into consideration. They were convinced in part by the Abuelas’ decision to form a team of mental health professionals to advise them on specific children. Further evidence of this concern for the “best interest of the child” was evidenced by two agreements reached with biological families that allowed the children to remain with their “adoptive families,” while resuming their real names and recreating ties with their biological families.[193] Mr. Hall noted that evaluation of the grant would pay particular attention to the “extent to which standard mental health practices, including home studies and counseling, are employed to insure that the interests of both the children and, where appropriate, the adoptive families are also given full consideration.”[194]
The team the Abuelas assembled consisted of pediatricians, neonatologists, and specialists in child psychiatry and psychology. Its aim was to facilitate handing the children over to their families “in the best possible conditions.”[195] This team worked on judicial action and provided extension ser-
*** Top of Page 162 ***vices to interested parts of the community.[196] It provided a “prolonged follow-up” to children who were restored to their biological families.[197] In a book published in 1990 by theAbuelas, their psychological team explained the impact of restitution on children psychologically and medically. The psychological team understood that they were dealing with something unique that required more than knowledge of theory and classic psychopathology. Drawing on their previous experiences, the team planned the upcoming restitution together with the biological families that would be involved. They conceived of their job as aiding in the restoration of the children to an entire ecological nest or social network. They were prepared for crisis intervention because of the drastic impact that judicial restitution could have on the child.[198] They found, however, that the children surprised them and “showed them the correct way,” by adjusting to their legitimate families and identifying with them much faster than might have been expected.[199] The children displayed some shock and confusion and even anger, but also a tremendous amount of curiosity and growing attachment. The seven member psychological team kept the media away and advised the court about the course of the reintegration. For children that were abducted from their parents, the team looked for “clicks” of recognition or “insights” that might trigger memories of a pet name, a voice, or a gesture from the past, thereby recapturing the lost identity. They told some amazing stories about such instances[200] and insisted that the children were not depressed after the transfer, as might be expected.[201] Obviously, no such “click” was possible for children actually born in captivity to mothers who were killed immediately upon their birth. The Abuelas’ psychological team had a different view of why these children were also better off after the restoration. The lives of these children had been permeated with lies, sometimes even including made-up accounts of a birth experience that never happened. Psychologically, the team believed that it was quite different to be told falsehoods and to hear true stories about the child’s origins. The adjustment certainly was painful, but the team was convinced from their experience that the children did want to know about their “existence.”[202] Pediatrician Dr. Norbert Liwski observed that as the children progressed through the stages of restitution, they made gains in growth, which often had been developmentally delayed, and overcame a variety of psychosomatic ills such as bed-wetting.[203]
*** Top of Page 163 ***Three psychologists and psychoanalysts associated with the Abuelas further elaborated their views on the importance of restitution to the mental health of the kidnapped children in a round table discussion published in the 1990 book.[204] They developed a complicated theory that distinguished the healthy connections of a child to the longings and desires of her legitimate family from the place she occupies in a kidnapper’s family. They seemed to focus on ruptures in a child’s identity. For example, the “adoptive” parents want to valorize the children by separating them from their parents. If the children want their original identity back, the desire inevitably opens a breach (chasm) between them and those who raised them.[205] One of the round table members also discussed a breach of the genetic line and its history, even where no lies are told. But living with secrets and lies has a terrible effect on a family, transforming it into a non-family.[206] The third round table participant mused on the importance to the children of finding small points of physical similarity to the families to which they were restored. From there, she said she entered a second stage of thinking, in which she paid more attention to the law. The law provided that adoption is permissible when a child is abandoned. But in a moment of “social catastrophe” some people exploited those rules. Perhaps some were even in good faith to begin with, but if the improper adoption continued after the truth emerged, they acted in good faith no longer.[207] The round table participants went on to discuss living with a secret,[208] turning a child into an object,[209] and facing tragic truths (such as that for children born in captivity, their birth was the occasion of their mother’s death).[210]
Out of praxis, the Abuelas’ mental health team developed a theory of healing which they believed worked for the children of the disappeared.[211] The team consisted of clinicians who did not ignore the particular circumstances of individual children or the fact that there was disruption and pain in the transition. But they also firmly believed that restitution was in the best interest of the children involved. Whatever the clinical validity of that position or the needs of individual children, however, the team also operated within a social context.[212] As theAbuelas noted, the meaning of restitution
*** Top of Page 164 ***“transcended” individual justice and was also a matter of the reconstruction of society.[213]
As the Abuelas successfully established a national genetic data bank, the Ford Foundation grant was renewed. A Foundation memorandum specifi-cally noted the variety of resolutions for the forty-two children (of 200 documented kidnapped) located by the Abuelas so far: nineteen were returned to biological families; twelve remained with “adoptive families,” while resuming their real names and ties with their biological families; six cases were in the courts; and five children were known to be dead.[214] The agency representative acknowledged that the goal of the Abuelas was reunification, but observed that they “take the specific circumstances of each case into account, to assess what is most appropriate and consistent with the children’s rights and well-being.”[215] Just as in the original grant evaluation, the renewal acknowledged that the Lima staff recognized the sensitive issues involved—the fear of trauma when a child is separated from the second family after a long period of time. They were still persuaded, though, that the Abuelas had addressed the issue with their mental health team on staff and that it would be worse to let the children find out the truth even later.[216] By 1990, when the Ford Foundation was ready to make its closing grant, however, they were not as comfortable with the best interest balance; the final evaluation spoke of a “growing concern about the possibly traumatic effects of a separation of a child from his or her adoptive parents, especially after a certain period.”[217]
*** Top of Page 165 ***VII. Ximena Vicario: The Last Restitution?
Although a court granted her grandmother provisional custody of thirteen-year-old Ximena Vicario in 1989, a drawn-out battle over restitution and then over visitation rights extended back to 1984 and forward into the late 1990s. Fought in the courts, the media, and on the international stage, the struggle over this case marked a turning point, after which it was virtually impossible to recover a child of the disappeared.[218] This change coincided with additional calls for impunity, which led to the pardoning of the major figures of the juntas for their varied crimes and to their release from jail. After Ximena Vicario’s case, the Abuelas’ version of the “best interest of the child” lost favor in Argentina, even as the organization continued to enjoy some international success.
On February 5, 1977, Ximena’s mother was taken with the nine-month-old baby to federal police headquarters in Buenos Aires. Her father was disappeared separately the following day. Neither parent was ever seen again.[219] The baby, however, arrived at a state orphanage wearing a sign that said, “I am the daughter of Subversives. They killed my parents today.”[220] The Abuelas located the girl in 1984, discovering that she had been “adopted” and named Romina Siciliano by Susana Siciliano, who worked in the institution where she was left.[221] When located, Siciliano refused to come to any kind of agreement with Ximena’s grandmother that would involve them both in the raising of the child. It took four years for the girl’s identity to be proven through genetic testing.[222] Although the adoptive mother was never part of the military or the police, she was charged with falsifying her knowledge of the child’s origin and taking Ximena illicitly from the orphanage.[223]
*** Top of Page 166 ***Even after biological ties were established with grandmother Darwinia Monaco de Gallicchio, the first federal judge, Juan Fegoli, ruled that Siciliano could keep Romina-Ximena with visitation rights to the grandmother.[224] On January 2, 1989, the grandmother gained provisional custody of the child[225] after seven hours of interviews with court-appointed psychologists.[226] Dramatically, the twelve-year-old girl stood on the courthouse steps swearing that she did not want to go with “that old woman” and that she would escape from her or commit suicide if she was forcibly separated from Siciliano. Shortly after the transfer, court psychologists reported that the girl was doing fine, but did not answer to her birth name, Ximena Vicario. Her biological family claimed, “She is reconstructing her life and learning about her real family and real identity. She has the telephone next to her but has not chosen to call the other family.”[227] The adoptive mother continued her campaign after the transfer, taking it to the media, both domestic and international,[228]and applying for visitation rights.[229]
Ximena-Romina remained with her biological grandmother for nine months, but in September 1989, there was a setback in the courts.[230] Relying on an antiquated law, the Supreme Court of Argentina ruled that only the parents and a legal guardian have standing and may directly participate in the proceedings; the grandmother lacked standing.[231] The Court distinguished a proceeding concerning the custody of a child, which created this problem, from other proceedings in other courts to determine the familial relationship. Until Siciliano’s adoption of Ximena-Romina was declared null, the Court considered her the parent. Thus, they were prepared to vacate the lower court’s order.[232] The lawyer appointed to represent the child, who had also been the defense attorney for ex-Junta chief General Videla, recommended that the Court turn Ximena-Romina back to Siciliano.[233] In ordering a remand, however, the Supreme Court noted that the fact that Ximena had lived with her grandmother for most of the last year could not be ignored. The Supreme Court directed the lower court to consider the
*** Top of Page 167 ***girl’s interests and wishes in making any custody disposition, even if the original order was vacated.[234] The lower court eventually left Ximena with her grandmother, subject to visitation by her adoptive mother. The visitation was a great frustration for Ximena and her grandmother, and they finally appealed to an international court for relief.[235]
Meanwhile, the criminal action and the direct attack on the adoption (adopción plena or full adoption) both stretched out unconscionably long.[236] Finally, in 1991, a lower level court ruled that the adoption was a nullity. Siciliano claimed that the adoption could not be attacked because of “prescription,” that is, the principle of finality. She also disputed the validity of the blood test and claimed to have found Ximena abandoned.[237] The court rejected the “adoptive mother’s” arguments about prescription due to reasons of public order and social interest.[238] It held that the case was one of family status, defined as the position or relationship that someone occupies in a family.[239] The judge likened this to a jurisdictional issue to which prescription simply did not apply.[240]
The lower court reviewed the evidence, including the blood tests that had been ordered as part of the criminal proceedings. The tests showed a 99.82%
*** Top of Page 168 ***probability that Ximena was the granddaughter of the Vicario grandparents. Although the criminal action had not yet reached a conclusion, the judge considered it urgent to act to resolve the fate of a girl who was fifteen years old and who had experienced a painful past filled with concealment of her origins and a present filled with uncertainty and conflict. The procedural fraud in obtaining the adoption was enough to act to nullify it. Based on the evidence, he was persuaded that there was no consent by the parents for the adoption and that it was therefore a nullity. At last, Ximena Vicario’s real identity was declared legally.[241] Despite this conclusion, however, litigation stretched out into two appeals, finally reaching the Supreme Court of Buenos Aires in 1994, the year Ximena Vicario reached age eighteen.[242]
In a lengthy 1992 decision, the court of the second instance, or intermediate appellate court, upheld the nullification of Siciliano’s adoption of Ximena. By now, Ximena-Romina had spent several years with her grandmother, but without finality in the confirmation of her name, identity, or right to resist visitation by Siciliano. There are two particularly interesting features of the court’s analysis. First, it referenced international law, specifically the United Nations Convention on the Rights of the Child of 1989, which Argentina had ratified and adopted into domestic law. Second, the judges correspondingly placed the “best interest of the child” at the center of their reasoning.[243] The conclusion was that regardless of the love that Siciliano might have for Ximena, her best interest prevailed; she had a right to her real name, to be cared for by her biological family, and to enjoy her identity and her family relationships without illicit interference.[244] The girl herself said she did not want to see Siciliano any more. With this evidence, this was enough.
One of the intermediate appellate judge’s remarks illustrated how easily “best interest” could work against the grandmothers and in favor of the “adoptive” family. Judge Conde agreed with the judgment affirming the nullification of the adoption, saying that he had read articles about the children of the disappeared and their displacement from one family group to another. He observed that these children have a difficult time adjusting to a new family and that, above all, the best interest of the child should govern. In this case, according to what the child herself said, there was no dispute
*** Top of Page 169 ***about what her best interests were.[245] The child’s own wishes and the status quo of her grandmother’s custody coincided in 1992. Thus, Judge Conde justified the complete nullity of Siciliano’s fraudulent adoption on the grounds of a best interests definition that departed from the version of best interests that the Abuelas had struggled so hard to establish.[246]
In 1994, when Ximena was nearly eighteen years old, the nullity of her fraudulent adoption achieved finality. Siciliano still contended that the adoption was final because she had committed no fraudulent acts and because the girl had been abandoned. However, Siciliano’s prescription argument and application for an extraordinary writ were both denied by the Supreme Court of Buenos Aires.[247] However, Ximena and her grandmother continued pressing their claims in international courts for reasons that will be discussed below. After Ximena’s case, in the context of a changing political climate, legal and public opinion turned against the claims of the Grandmothers.[248] Until political pressure by the Abuelas induced a change in the law,[249] the Argentine Supreme Court’s 1989 decision on standing made future cases more difficult by limiting appeals by biological families.[250] According to a 1993 report, courts subsequently were reluctant to order blood tests and no other children had been restored in the interim. Conceding tactical defeat, the Grandmothers concentrated on restoration of the children’s identities without a change in custody. They also looked increasingly to international courts for hope of any action on the remaining high profile cases.[251]
VIII. Developing International Norms To Right Wrongs
After Ximena Vicario’s case was decided, the Abuelas ">*** Top of Page 170 ***
and Political Rights (CCPR).[252] Because Argentina has adopted the Optional Protocol to this Covenant, individuals who believe themselves to be victims of a violation by a State Party of any of the rights protected in the Covenant may communicate directly with the Committee.[253]
Ximena’s grandmother alleged that they were victims of violations by Argentina of a number of Articles of the CCPR, which entered into force for Argentina in 1986.[254] She complained that the forced visits, which were still occurring in 1990, subjected Ximena to a “psycho-affective involuntary servitude” in violation of articles 15 and 8 of the CCPR and constituted an arbitrary intrusion on both her own and Ximena’s privacy, which was forbidden by article 17. She also alleged that the Argentine court’s refusal to afford her standing in the guardianship proceeding denied her equal protection before the law and the right to privacy. In addition, she claimed that Ximena suffered psychological torture from the forced visits and was being denied her right of identity because she was required to bear the name given to her by Siciliano.[255] Her grandmother persisted, even after the visitation ceased in 1991, Ximena received her identity papers in 1993, and the guardianship ended in 1994, arguing that the proceedings violated rights by stretching out unreasonably long and establishing injurious precedents that would bind other Argentine courts.[256]
The Committee’s findings were mixed. It felt unable to rule on the invasions of Ximena’s human rights that occurred prior to 1986, when Argentina ratified the Optional Protocol. It was mindful of the numerous proceedings in which Ximena’s grandmother was allowed to represent her and in which the State Party’s courts attempted to determine the facts, balance the “human interests of the persons” involved, and give redress. On the other hand, it took a long time to afford any relief in the domestic courts,
*** Top of Page 171 ***and this delay was certainly encouraged by the initial denial of standing to her grandmother to represent the girl. Consequently, the Committee concluded that there was a violation of the Covenant because the State was required to take affirmative steps to protect a child such as Ximena in a timely manner and not to deny her grandmother the right to represent her.[257]Although it came at great psychological cost to the girl, whose life was subjected to a long period of uncertainty, Ximena’s grandmother and the Abuelas ultimately prevailed in Argentina’s domestic courts as well as in the international human rights venue.
The Abuelas appreciated the importance of international appeals from the beginning of their existence, while they still lived under the hand of the military regime.[258] After the restoration of civilian government in Argentina and as the Abuelas drew closer to locating and reclaiming some of the children, a number of kidnappers fled to Paraguay with the children they had appropriated. The Abuelas called this the “segunda desaparición” or “second disappearance.” Paraguay was a logical choice, as it shared a border with Argentina and was under the rule of General Alfredo Stroessner, “the longest-running dictatorship in the hemisphere, which ran the country from 1954 to 1989.”[259] Paraguay had also participated in the collaboration between Southern Cone countries, which led to kidnappings of Uruguayan, Argentinian, Chilean, and Paraguayan citizens wherever they were found. In response to these flights, the Abuelas urged international action. In 1988, they persuaded the Human Rights Commission of the United Nations to send an investigator, Theo van Boven. The Paraguayan government, still under Stroessner, refused to cooperate, but van Boven was able to base his report on information he gathered in Argentina.[260]
In his report, van Boven accepted the Abuelas’ version of the “best interest of the child” and found it to be incorporated in existing international norms. He concluded that “these children are deprived of their right to keep their own identity, to know their past, to enjoy parental care and not to be separated from their parents against their will.” The children lived with the kidnappers who were responsible for atrocities in violation of international humanitarian principles, and thus they themselves were denied the opportunity to develop normally “in conditions of freedom and dignity (Principle 2 of the Declaration of the Rights of the Child).” They learned intolerance and discrimination rather than friendship among peoples, peace and universal brotherhood (Principle 10 of the Declaration) from the parents who appro-
*** Top of Page 172 ***priated and fled with them. Van Boven concluded from “lengthy and intense discussions in Argentina with relatives of disappeared children, health professionals, psychologists and judges,” that “nearly without exception the return of the child to the legitimate family is in “the best interests of the child” (see also Principles 2 and 7 of the Declaration) and an imperative requirement of justice.[261]
In his report, van Boven examined two infamous cases: the case of the “Rosetti-Ross twins” (now known to be the Tolosa twins) and the case of the children raised by Major Norberto Atilio Bianco.[262] Bianco was a military doctor who worked at the Campo de Mayo Hospital where children were born in captivity to detained mothers who were later murdered anddisappeared.[263] He took two babies born there, a girl and a boy, and falsely registered them as his own.[264] The Abuelas located the children in 1984, but Bianco fled with them in 1986 before genetic tests could be administered.[265] Paraguay rebuffed Argentine efforts beginning in 1987 to extradite Bianco and his wife Susana Wherli.[266] An appeals court in Paraguay accepted Bianco’s argument that the extradition would endanger his two children.[267] Bianco successfully resisted for nearly ten years after the initial charges and after van Boven’s report to the United Nations. Bianco and Wherli were finally arrested by Interpol on March 3, 1997 and extradited to Argentina to face charges of forging documents and misappropriating minors.[268] Even though the Bianco couple admitted at the extradition hearing that they were not the biological parents of Carolina and Pablo, they insisted that they had the consent of the biological mothers to take the children.[269] By that time,
*** Top of Page 173 ***both of the children had married Paraguayans and were fiercely protective of their “parents.”[270] They have refused to submit to genetic testing, and Paraguay refused to require it.[271]
The case of the Rosetti-Ross twins involved twin boys, located in the hands of Samuel Miara and his wife Alicia Beatriz Castillo. By many accounts, Samuel Miara was a brutal police sub-commissioner who actively participated in repression and torture.[272] He appropriated twin boys, born in captivity, who then were falsely registered as being born to his wife, Beatriz. In 1984, the Abuelas denounced the deception, but like Bianco, Miara fled to Paraguay with his “family” before genetic tests could establish the twins’ identities.[273] In 1988, when Theo van Boven submitted his report, it was mistakenly believed that the children were related to the Ross-Rossetti family.[274] Even with irrefutable evidence that the boys were kidnapped, however, Argentine authorities were unable to reach Miara in Paraguay until after the end of Stroessner’s dictatorship there. Genetic testing in 1989 overwhelmingly established that the now twelve-year-old twins were the sons of María Rosa Tolosa and Juan Enrique Reggiardo, young architecture students who were kidnapped and disappeared by the military regime. Despite the test results and Miara’s confession that the children were not biologically his, the court initially granted custody to the Miaras.[275] As late as May 1993, the sixteen-year-old twins remained with Beatriz Miara, even after new decisions that annulled their false birth certificates and gave them the last name of their biological parents.[276]
*** Top of Page 174 ***The Abuelas appealed to the International Commission of Human Rights (“The Commission”) of the Organization of American States (OAS), which referred the case to the Inter-American Court of Human Rights (“The Court”) for “provisional measures” available in cases that threatened irreparable harm to human rights.[277] The Commission and the Court are the official interpreters of the American Convention on Human Rights (“ACHR”).[278] The Court ruled that Argentina should take steps without
*** Top of Page 175 ***delay to protect the psychological integrity of the minors and to avoid irreparable harm to them.[279] Some commentators consider the Argentine response an unusually effective example of the impact of the Inter-American Court,[280] as Argentina first moved the boys into a foster home and then into the care of their maternal uncle.[281]
Rita Arditti reports that the domestic decision to return the Tolosa twins “was based on Article 8 of the United Nations International Convention on the Rights of the Child—the right to preservation of identity, an article for which the Grandmothers had lobbied extensively at the United Nations.”[282] Article 8 of the United Nations Convention on the Rights of the Child (“Child Convention”), adopted in 1989, provides:
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.[283]
This provision was included “at the suggestion of Argentina in the light of mass ‘disappearances’ of children whose identity papers had been deliberately falsified and family ties arbitrarily severed.”[284]
*** Top of Page 176 ***The original version submitted by the delegation of Argentina was even more pointed. It would have established that “the child has the inalienable right to retain his true and genuine personal, legal, and family identity” and imposed affirmative duties on states to assist any child who “has been fraudulently deprived of some or all of the elements of his identity” to reestablish his “true and genuine identity.” In a reflection of the Abuelas’ position in Argentina, this obligation would have included restitution or restoration of the child to his blood relations.[285]
In response to questions from Norway about whether the same guarantee generally was covered in other provisions, Argentina insisted that specific protection was necessary. They distinguished between a child’s true and genuine identity and his or her legal one. There was some concern expressed by other representatives about hidden family law problems in the proposal as drafted and about the meaning of “family identity.” As a result, the term “family identity” was replaced by “identity, including nationality, name and family relations as recognized by law.”[286]
According to Cynthia Price Cohen, a leading scholar and activist who participated in the drafting of the Child Convention,[287] the “best interest of the child” is only one of four major themes that pervade the agreement.[288] The Child Convention makes many references to “best interest,” which appears to be the standard by which to measure state compliance.[289]For example, though Article 3 makes the “Best Interests of the Child” a primary consideration in all actions regarding children,[290] there is also a recognition of the child’s own evolving capacities, implying that care and protection must be balanced against a child’s “individual personality rights.” Nondiscrimination is a third major theme. Fourth, “respect for the child’s human dignity” is also required. Cohen believes that the chief importance of the Child Convention is that it establishes the child, rather than the adults who care for the child, as the rights holder, and that its standards, (while “pro-family”), make it clear that the child is a separate human being, not the family’s property.[291]
Interestingly, in the working groups that drafted the Child Convention, debate and revision reduced the Article 3 “best interest” standard from the
*** Top of Page 177 ***paramount to a primary consideration.[292] How then is Article 8’s “right to identity,” the provision which the Argentine delegation contributed out of their own experience, to be understood? Is it the implementation of the best interest of the child standard, or is it one of those instances, referred to in the working groups, of a competing interest in justice?
After the twins were placed in the custody of their uncle, the case became a cause celebré in the media, and the boys’ custody was changed yet again in the name of their “best interest.” It began with an appearance on a “show hosted by a right-wing politician,” but extended to the “most popular prime-time programs.” In Rita Arditti’s words, audiences in these programs were “manipulated” to favor the Miaras, now called “love parents” or “historical parents.” Shortly thereafter, the judge placed the twins with a foster family and permitted visits with the Miaras.[293]
The criminal case finally reached a conclusion at the end of 1994. Miara was freed based on credit toward his sentence for time spent in pretrial detention.[294] On appeal, the judges were convinced that the couple knew the illicit origins of the twins, though they felt that the charge of kidnapping could not be proven against them (a problem in most of these cases). Most interesting was the appellate judges’ treatment of children’s “choices.” The chief opinion observed that the Miaras never intended to tell the boys the truth because it would have damaged the couple’s selfish interest in possession. Miara did not care about the suffering he imposed on the children he forced to be his “sons.” Any “consent” by the minor children, moreover, was ineffective in light of family rights and the boys’ lack of legal capacity to make a choice. Only their legitimate parents could consent.[295] The court continued in this vein, commenting on legal scholarship that discussed the protection afforded by law to familial and social integration. Because a child under ten years of age is totally dependent, the law punishes anyone who encroaches on the only valid exercise of will—that of the parents or legiti-
*** Top of Page 178 ***mate custodians. The defendants deprived the twins of a necessary component of their upbringing: knowledge of their parents and their history. Thus, the Miaras damaged the boys psychologically and took away their choices by removing them from one world and placing them in another. The lies told them permeated the children’s upbringing. Not surprisingly, the judges in this criminal proceeding against the Miaras did not rely on the “right to identity” of Article 8 of the Child Convention. They focused on the guilt of the defendants rather than on making any decision concerning the custody of the children.
IX. Impunity Under Attack:
Recent Developments in Proving a Systematic Plan
Even as it became more difficult to succeed legally and in the court of public opinion, the Abuelas persisted. They methodically began building a case designed to demonstrate that the kidnappings of the children of the disappeared were not isolated occurrences, but part of a systematic plan orchestrated from above.[296] The late human rights activist Emilio Mignone, whose own daughter was disappeared, reported that while he looked for her, “an officer told him the army was working on a system by which the children of ‘subversives’ would not grow up hating the military”—a doctrine based on abduction and change of identity.[297]
After 1995, changes in the political and legal climate in Argentina and abroad once again brought to the forefront the children of the disappeared. With the arrests of high officials of the juntas beginning again in 1998, it was clear that the fate of the children of the disappeared had an impact that went far beyond the sixty-three resolved cases, affecting Argentine literature, music, popular culture, public life, criminal justice, and, once again, politics.[298] In 1995, navy officer Adolfo Scilingo became the first member of the Argentine military to break the silence about the “dirty war.”[299] Horacio Verbitsky published The Flight: Confessions of an Argentine Dirty Warrior,[300] in
*** Top of Page 179 ***which Scilingo expressed his remorse about participating in the death flights in which the disappeared were thrown into the sea.[301] His admissions forced Army Chief of Staff General Martin Balza to admit for the first time that “illegal means” had been used to fight the dirty war.[302] The revelations reignited public outrage.[303] In June 1996, the Madres marched for the 1000th time. A new generation of young activists admired them[304] and challenged the spectacle of known murderers and torturers walking the streets with impunity.[305] Calling themselves HIJOS, they began to conduct “outings” (“escraches”) in which they followed the former officers of the dictatorship, carrying posters accusing them of their crimes. They occupied the streets in front of the houses of the dirty warriors and drove them out of public spaces.[306]
In October 1996, Spanish Judge Baltasar Garzón opened an investigation into the fate of Spanish nationals who were disappeared in Argentina.[307] Garzón, sometimes called “King Baltasar,” led a high-profile campaign against Chile’s infamous former dictator that resulted in the detention in London of Augusto Pinochet.[308] In the Argentine case, Judge Garzón heard testimony from, among others, Carla Artes, a HIJO whose Spanish-Argentine mother was disappeared by the regime in 1976. Her nine-month-old baby was given to Eduardo Ruffo, who worked at the concentration camp where the mother was confined and presumably murdered. Carla was raised by Ruffo until her grandmother made an open appeal on Argentine television. One hundred former Argentine officials were initially named as suspects in Judge Garzón’s investigation of genocide and terrorism against Spanish citizens. If they were
*** Top of Page 180 ***summoned, the judge was empowered to seek international search and arrest warrants, but then-President Menem said that he would not honor any requests for extradition.[309] He issued a presidential decree in January 1998 instructing Argentine federal courts not to cooperate with Judge Garzón’s extradition efforts.[310]
The Abuelas had already filed lawsuits designed to establish that the kidnappings were pursued according to a plan.[311] Although Carlos Menem, the man who issued presidential pardons to the leaders of the junta in 1989 and 1990 and who initially fostered impunity, could hardly be accused of pressing for action, events began to overtake his government. In June 1997, the transcript of an interrogation under torture was broadcast on television, lending credence to the idea that not all archives were purged at the end of the dictatorship and that evidence would still be found.[312] Graciela Fernandez Meijide, former secretary to CONADEP with a human rights reputation whose own son was disappeared in 1977, swept to victory for the Buenos Aires legislative seat, temporarily making her a leading opposition candidate for the 1999 presidential elections.[313]
In November 1997, attorney Alberto Pedroncini filed a lawsuit on behalf of twelve of the disappeared, alleging that the pardons were ineffective in cases of kidnapping where the victims were never found, thereby creating a continuing offense.[314] Popular protest forced Menem to shelve his proposal to build a shrine to national reconciliation on the site of the most brutal detention center, the Navy’s Mechanics’ School (ESMA). This gesture to the Argentine military came just hours after legislators announced plans to draft
*** Top of Page 181 ***a law annulling amnesty and was called a “provocation” by the Abuelas and other human rights groups in Argentina.[315] After Navy officer Alfredo Astiz, “the blond angel,” publically admitted his role in the dirty war on January 13, 1998, he was summoned to civil court by the relatives of one of the disappeared to be interrogated.[316] An avalanche of complaints followed.[317]
By the middle of 1998, the scale and success of the HIJOS “escraches” or “outings” had quickened,[318] and the federal Congress had enacted a symbolic repeal of the amnesty laws.[319] A federal judge investigating the kidnapped babies, Judge Antonio Bagnasco, received a hoax bomb threat.[320] In June of 1998, federal judge Roberto Marquevich dropped a legal bombshell. He ordered the detention of former President General Jorge Videla on charges that he was responsible for the kidnapping of five children of thedisappeared.[321]
For the Abuelas and other human rights groups, this development evoked a mixed reaction. Though Videla was questioned and detained on charges relating to the kidnapping of first five, and later more,[322] children, he was not arrested for the 66 charges of murder, 306 abductions, 97 cases of torture, and 26 cases of theft for which he had originally been sentenced to life imprisonment in 1985 but for which he had been pardoned by President Menem in 1990.[323] This was because the amnesty laws and pardons were said to have exempted the crime of kidnapping children from their purview.[324] Even this rather strange result, which might insulate Videla from accountability for murdering the parents but at least hold him responsible for kidnapping their children, was not a certainty. A former federal prosecutor doubted that legal charges could be filed against Videla because he was absolved of the crime of theft of minors by the Federal Chamber in 1985. At
*** Top of Page 182 ***that time, the child stealings were considered isolated cases not to be pursued. Videla could not be tried twice for the same crimes.[325] Even as the general prosecutor announced the creation of a special unit to work on kidnap cases on the same day that Judge Marquevich ordered Videla’s detention, human rights groups expressed skepticism about the motives of the office and the judge.[326]
In any event, however, the arrest of the former junta head Videla reignited debate over the stolen babies,[327] produced evidence of a plan orchestrated from above and executed with the cooperation of other Southern Cone nations,[328] and led to the arrest of a whole string of officials of the late dictatorship.[329] The cases were consolidated in front of another federal judge, Antonio Bagnasco, who had already been investigating the child stealings. He ultimately issued a lengthy indictment involving seven former officials.[330] President Menem promised he would not interfere with the workings of the judicial system,[331] but his government nonetheless opposed any extradition to Spain, Italy, or Switzerland where inquiries proceeded about the disappearances of Argentine citizens.[332] Menem was disqualified from serving a third
*** Top of Page 183 ***term,[333] and his Peronista (PJ) party suffered a resounding defeat on October 24, 1999, at the hands of the center-left Alianza (a coalition of Frepaso and the Radical Party), led by Fernando de la Rua, the former mayor of Buenos Aires.[334] Although the election contest centered around the stalling economy, corruption, and the flamboyant excesses of the Menem years, its result also changed the climate for human rights complaints.[335]
Since the detention of Videla, the number of teenagers coming forward to determine whether they are children of the disappeared has tripled.[336] Yet, after all the years of theAbuelas’ work, only sixty-three children have been identified and had their cases resolved.[337] Although one of the officials interrogated gave some information about the outline of the kidnapping plan,[338] no lists of the disappeared have been forthcoming.[339] Some of the now-grown children of the disappeared who are learning their identity at this late stage find it hard to accept the implications of that truth.[340] It remains to be seen what effect the arrests will have on the future of Argentine democracy[341] or even on the individual officers charged.[342]
*** Top of Page 184 ***en of the disappeared, the “best interest of the child” is not just an individual question, but necessarily reflects the social, cultural, that is to say, political, context in Argentina.[344] Consequently, there are competing versions of what indeed constitutes the “best interest of the child.”
Second, even procedural issues may reflect the political context of family law decisions. In Argentina, the Abuelas struggled to establish a procedure for determining identity in these cases. To the extent that they succeeded, they made inroads on the impunity for their crimes enjoyed by the former regime. To the extent that the courts permitted procedural doctrines such as jurisdiction, standing, and prescription (limitations periods),[345] to block or
*** Top of Page 185 ***significantly delay the ordering of blood tests and the resolution of custody, impunity benefitted, but the children suffered the costs of delay. Even if incurred in the name of finality of legal proceedings or of stability in a child’s life, in the Argentine context, the delays added to the injury she suffered.
A. The Best Interest of the Individual Child Is Political
The political context was evident in the competing versions of “best interest” propounded by the parties. The Lavalléns’ lawyers in Paula Logares’ case for example, argued that those they called the “padres de crianza” or raising parents were the protectors of the child. The fact that they engaged in criminal conduct was secondary to the interest of the child. The lawyers defined those interests as being protected from disturbance or trauma or having custody changed solely in the interests of third persons, even of the biological parents themselves.[346] This was a kind of “psychological parent”[347] argument that seemed entirely abstracted from anything that had happened in Argentina or in the child’s own life.[348]The defenders also talked about the wishes of the child and the affection they felt for their raising parents, an argument that was particularly dramatic in cases of older children like the Tolosa twins who were displayed in the media, articulately expressing their attachment for the Miaras and their strong identification with them. The Miaras claimed in their own defense that “the children should have the right to choose, to be happy, to be with whom they want to be.”[349] During the long legal battles the teenaged boys resisted admitting their biological relationship to the Tolosas and defended their adoptive family from the allegations made by their maternal uncle: “He can’t come saying my father is a kidnapper, because if you attack my father, you’re attacking me.”[350] One of the boys said that he already had an identity which could not be changed.[351] After years in the hands of the Miaras, the demand that
*** Top of Page 186 ***they be reintegrated into their legitimate family seemed threatening to the Tolosa boys, and they were not able to make an adjustment to living with their maternal uncle when the transfer finally occurred at age sixteen.
The Abuelas, and the Argentine legal system to a greater or lesser extent, had a counter-story to this a-contextual view of the “raising parents” and the alleged stability and security they provided. Although the Abuelas talked about “strict and pure justice to the bitter end” for their murdered children and kidnapped grandchildren,[352] this was not simply a matter of “best interest” versus “justice.” Rather, the Abuelas developed an entirely different version of “the best interest of the child,” one that was grounded in Argentine social reality and was about the children’s right “to their name, to their heritage, to their identities.”[353]
The assertion that the criminal conduct of the appropriators of children was irrelevant certainly would be hard to swallow. The famous Argentinean dissident and victim of the regime, the late Jacobo Timmerman, said that he could not feel calm at the thought of the boys in the custody of a “beast of that caliber.” He explained, “a torturer cannot say, ‘I feel like a father for these children.’ . . . If we accept that, we have to accept that they were right when they killed, they were right when they tortured, and they are right now in keeping the children.”[354]
The Abuelas’ views, however, went beyond the claim of injustice. In the context of the wrenching and murderous secrets and lies of the nightmare years, they believed that the truth was healing for the children and in their best interest.[355] The Abuelas were reacting to a deliberate plan devised by a dictatorship to wipe out the identity of part of their own people by murdering them, taking their children, and raising the infants with values alien to the whole familial and social setting from which they had been stolen.[356] Restitution (or reintegration) was a social remedy for a social crime in the sense that it was a reclaiming of the children by the families of the victims for the values the children would otherwise have enjoyed.[357] The Tolosas spoke of the boys’ need to learn their own history and said that the then-
*** Top of Page 187 ***fifteen-year-olds had been lied to and brainwashed and could not be expected to make their own choices.[358]
The competing versions of “best interest of the child” are also competing versions of “children’s rights.” Best interest of the child implies what is called parens patriae in United States law, that is, that adults, in particular the court, substitute for the minor’s parents to protect and make decisions on her behalf.[359] Children’s rights, on the other hand, connote interests that the child herself posesses, not just as the object of the parents’ care and affection.[360]
The Abuelas decried the treatment of children as chattel, objects, war booty who were taken and distributed to satisfy the desires of adults.[361] They upheld the child’s right to identity and were instrumental in the passage of Article 8 of the United Nations Convention on the Rights of the Child, which establishes that right as a matter of international law. Some children, though, were unwilling to accept their legitimate identity, and the appropriators also claimed that they were defending the child’s right to choose which identity he or she wanted.[362] This reflects a troubling dilemma: whatever is said about “children’s rights,” someone else always speaks for the child and defines those rights. The competing views of “children’s rights” in Argentina, like the story and counter-story of “best interest of the child,” pit the overtly social against the covertly political. The Abuelas’ definition is grounded in their view that a child stolen out of his social environment has a “right” to regain his origins, his history, and his identity. The Abuelas demanded full restitution of the child to the legitimate family at first and then later at least restoration of that family’s name.
In the hands of some jurists, this easily could slide into a parental rights claim,[363] but the Abuelas consistently maintained that they were promoting children’s rights. The care with which they negotiated individual accommo-
*** Top of Page 188 ***dations and with which they managed transitions in the restitution process lends significant support to this claim.[364] Their definition of “children’s rights,” however, clearly was a social one.
The appropriators’ definition was superficially grounded on the needs of each individual child. By ignoring the context, however, it in fact serves the desires of “raising parents” and their right-wing political position and does little to secure “children’s rights.” Moreover, they often failed to show care and concern for the impact of the transition on the children they had appropriated, instead telling them abruptly and only when caught, continuing to lie about what happened, fleeing with them, and delaying and extending their suffering.[365]
Under United States constitutional law, the approach would be strikingly different. First, the United States is one of only two states in the world that have not signed the Child Convention that includes the concepts of “children’s rights” and the “right to identity,” shaped largely by the Argentine delegation.[366] Second, many of these issues would be resolved strictly as a matter of individual rights under the Fourteenth Amendment to the United States Constitution rather than as a social question. The critical inquiry would be whether or not the grandmothers enjoyed a protected “liberty interest” in their putative relationship with their missing grandchildren, or if the children enjoyed a “liberty interest” in their relationship with their families of origin. The United States Supreme Court has recognized the constitutional dimension of the parent-child relationship since Meyer v. Nebraska,[367] a 1923 case which held that parents have a liberty interest in educating their children in a foreign language.[368] Over twenty years ago, in Stanley v. Illinois,[369] the Court made it clear that the right to family integrity is a basic one that is protected by the due process clause of the Fourteenth Amendment to the United States Constitution. It stated:
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” . . . “basic civil rights of man,” . . . and “rights
*** Top of Page 189 ***
far more precious than . . . property rights.” It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment . . . .[370]
The Court has extended the recognition of a liberty interest to other instances where the father was not married to the mother of the child, but where there was both biological fatherhood and an established parental relationship.[371] It has limited this protection, however, where the father was competing against a traditional marital family consisting of the mother and her husband.[372]
If a “liberty interest” is not triggered, the protections of the Due Process Clause, whether procedural or substantive, do not come into play. Without a “fundamental” liberty interest, government is free to regulate in any fashion that is procedurally regular and not totally arbitrary or irrational.[373] A plurality of the Court in Michael H. v. Gerald D.[374] decided that unlike other family units that have traditionally merited constitutional protection, the unwed father’s relationship with his young daughter did not, either historically or in contemporary constitutional jurisprudence. Although observing that the United States Supreme Court has “never had the occasion to decide whether a child has a liberty interest, symmetrical with that of her parent, in maintaining her filial relationship,” the plurality also found that the girl’s due process claim was even weaker and must fail as well. To the extent there was a social component here, it was the right of the state to decide to protect a marital family against an interloper, albeit one who was both a biological and psychological father.[375]
It has been much more difficult in United States law to gain recognition of a liberty interest on behalf of anyone other than acknowledged parents and blood-related family groupings in certain contexts. Recently, in Troxel v.
*** Top of Page 190 ***Granville,[376] the Court held that a Washington State statute, which permitted any person to petition for visitation rights at any time so long as visitation is in the best interest of the child, violated the substantive due process rights of the mother as applied in that case. Earlier, in Moore v. City of East Cleveland,[377] a divided Court invalidated a zoning regulation that had the effect of prohibiting a grandmother from living with her two grandsons by different children, and the cousins from residing together. The Court noted that the minors’ relationships with uncles, aunts, cousins and grandparents merited constitutional protection.[378]
By contrast to even this relatively modest ruling, “psychological” families have had a great deal of difficulty establishing a protected constitutional interest, largely because of Smith v. Organization of Foster Families for Equality and Reform (“OFFER”).[379] In OFFER, a class of foster parents lost on their claims that after a child lived in a foster home for twelve months or more, the foster parent and child developed psychological and other familial ties, creating a protected liberty interest in the foster parents entitling them to procedural fairness before the foster family is disrupted. The Justices emphasized three distinctions between foster parent-child relationships and the families that were constitutionally protected: there is no biological tie, there is a conflict and tension between foster parents and the biological parents, and foster parents assume the relationship contractually, knowing it is not meant to be permanent.[380]
Attacks by adoptees on sealed records in the United States, although they may be based on a child’s “right to identity,” nonetheless also are grounded
*** Top of Page 191 ***in the constitutional jurisprudence of “privacy,” “liberty,” and “due process.”[381] But even a brief comparison underlines an important feature of the story of the children of thedisappeared in Argentina. Although not lacking in “rights” language, there is a social meaning in the Abuelas’ legal position which is something different than the United States’ framework of individual rights and liberties.
B. The Procedural Is Political
The significance of social context in the Argentine cases extends to legal procedures. The searches started with individual grandmothers (and other family members) who transformed themselves into the Abuelas by developing a social perspective and a political and legal strategy. They had to meet both a social and an individual burden of proof in order to establish the identity of the children. The Abuelas’ strategy moved Argentine society from very uncertain legal precedent and a science that had to be invented for just this purpose to the National Genetic Data Bank and Ley 23.511. It is possible to consider the 1987 legislation an acknowledgement of the social probable cause.[382] The Argentine legal system thereby admitted the truth of the secret kidnappings and disappearances in society as a whole. It also established a mechanism for proof of individual cases. The individual standard required a reasonable claim before genetic tests could be ordered. Refusal to take the tests counted as evidence against those who refused. By using informants and pictures and pointing out discrepancies in the stories of supposed parents, the Abuelas sought to meet the legal standard and make individual claims that were true and reasonable.[383]
This certainly is too simple a picture because, as discussed above, the search for the children of the disappeared is inextricably intertwined with the politics of impunity in Argentina. Even the 1987 legislation did not guarantee results. It depended on the court, the timing of the latest military rumbles, the civilian government’s interest in assuaging that group, and on public opinion, which could be influenced by the Abuelas on the one hand, or right-wing media, on the other.[384] It also mattered whether the case involved a birth that was falsely registered or a full adoption which was final
*** Top of Page 192 ***(even if alleged to be fraudulent).[385] Finally, as time went on, the children got older and the delay itself had its own effect.
Delay was caused by many things in these cases. First it was the dangers of the dictatorship. When children were located prior to 1983, and their families had the courage to seek judicial remedies, the outlook was bleak.[386] Even after 1983, searches were not easy and children once located might disappear again. Some were taken abroad to Paraguay or other refuges for junta veterans.[387] Meanwhile, the Argentine legal system was still staffed with many of the 400 judges appointed by the dictatorship as part of the Proceso, or general reorganization of all of Argentine life undertaken by the juntas.[388] There were lengthy delays in ordering genetic testing and even lengthier delays in disposition of the criminal cases against the appropriators.[389] Just as in United States’ law, “jurisdiction,” “standing” and “prescription” procedural doctrines operated as gateways to the merits. They created obstacles that had to be overcome in order to reach the substantive issues of custody or the child’s true identity. In the case of Argentina, “jurisdiction” was a question of the competence of a federal criminal court to provide for the children who were the victims of the alleged crimes. In order for the court to be able to order a custodial disposition, it had to find that the child was abandoned or in moral danger.[390] In the case of full adoptions (adopción plena), “standing” objections created delay. The argument was that only parents or legal guardians had standing to participate in custody proceedings and that the grandmothers therefore could not represent themselves or the child until after the adoption was nullified.[391] In other cases, “prescription” defenses (limitations on the accused crimes) were raised. During these delays, judges did not agree about what to do in the meantime, whether to leave the child in situ, transfer the child to her legitimate family, or even to send the child to a neutral foster family.[392]
Procedural devices which have the effect of promoting stability and finality in child custody disputes are appealing. The Uniform Child Custody Jurisdiction Act (UCCJA)[393] and its recent successor, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA),[394] along with the full faith and credit provisions of the federal Parental Kidnapping Prevention
*** Top of Page 193 ***Act (PKPA),[395] create their own gateways which are supposed to force the disputants to return to the original court for any modifications of child custody so long as there is continuing exclusive jurisdiction. Because jurisdictional limits discourage forum shopping for a more sympathetic court, this is a major way of controlling outcome through procedural devices. It is also a way of promoting the best interest of all children, even if it is at the expense of any individual child. Because we think that “snatch-and-litigate” is bad for children, we legislate to discourage that kind of behavior. The individual court which has a child before it who is already subject to an order by another court with continuing jurisdiction is not supposed to make a merits inquiry.[396] Instead, when the court enforces jurisdictional mandates, it upholds a substantive decision made by the system as a whole; the less incentive there is to grab children and try for a better result in another court, the better it is for children as a group.
In Argentina, delay meant the passage of time for a child who was growing up with the “wrong” set of parents, time in which the child also imbibed the values of the family raising him and came to believe the lies offered to him as truth. Delay and lack of finality created terrible conflicts for Ximena Vicario, left in a no-man’s land between her grandmother and her “adoptive mother.” Initially, she was left with Siciliano, even when the genetic tests established her true identity with a 99.82% certainty. Subsequently, this decision was reversed, and she went to her legitimate family. Nine months later, the court ruled that her grandmother lacked standing but decided to leave the girl with her, together with compelled visitation by Siciliano. Even after the false adoption was nullified, the appeals went on for years. The struggle over visitation, which the child herself did not want, continued in Argentine and international courts until Ximena turned 18.[397] Delays caused by flight, extradition, and legal processes meant that the Tolosa twins were sixteen-year-old adolescents by the time they were unsuccessfully entrusted to their maternal uncle.[398] Carolina and Pablo were over eighteen and married by the time the Biancos were brought to justice. The two children raised by Bianco, a brutal servant of the dictatorship, were unwilling to return to Argentina or submit to genetic testing that would establish their true identity.[399] Delay clearly compromised the best interest of the children caught in its sticky embrace and made the question of remedy much more complicated. Even the Abuelas had to recognize the significance of delay. As the years went by, they changed their demands from restitution
*** Top of Page 194 ***of the child to restitution of the child’s identity, knowledge of her origins and name and return of her legal identity.[400]
The procedural delays suffered by the children of the disappeared, even in the name of stability or finality, were a mistake. The truth that these terrible things had happened in Argentina and that these “parents” had taken children illegitimately could not be denied. This was a situation of planned, mass kidnapping of young children and babies with an ideological motive. In that context, procedural devices that artificially prevented or slowed the legal resolution of that truth could not be justified. Similarly, the refusal to rectify the wrong when other proof existed and identity was established to a 99.82% certainty by scientific tests was harmful in that context.
The disputes over procedure and substance were “political” in the sense that they were contests over values. The question was who would get to control the transmission of values to the next generation. The Abuelas took the position that the legitimate families of the kidnapped children were entitled to pass on their values. They argued that the children had to be restored to an entire ecological nest or social network from which they had been wrongfully stolen.[401] Theo van Boven concluded in his report for the United Nations that the appropriators taught children values which violated international norms: intolerance and discrimination rather than friendship among peoples, peace, and universal brotherhood.[402] Finally, for theAbuelas, restitution was necessary for the reconstruction of a society that had been shattered by the nightmare years.[403]
On their part, the appropriators often were more than just psychological “parents” trying to protect their children. The basic argument of the “raising parents” was that no matter how guilty they were of criminal acts, they were entitled to retain custody of “their” children.[404] They did not really talk about their right to transmit their values, an argument the courts would have been likely to reject. Instead, they talked about “attachment.” Yet it was no accident that Miara and Bianco fled to Paraguay with their kidnapped children, where another right-wing dictator remained in power for a long time and where they socialized with one another.[405] Nor was it coincidence when lawyers for the junta officers accused of horrific crimes in the name of national security and the fight against “subversion” showed up to defend the “parents” of the children under dispute.[406] Siciliano (who had raised Ximena Vicario) and the unhappy Tolosa boys became the darlings of
*** Top of Page 195 ***the right-wing media,[407] just as the Abuelas learned how to appeal to international opinion.[408] Insofar as “impunity” was the watchword for the aftermath of the nightmare years, it was difficult to reclaim the children. Insofar as the Abuelas succeeded, they also made inroads on “impunity.” Both in the broader sense, which applies to all family law, and in a meaning that is more specific to the Argentine situation, family law once again has been shown to be “inescapably political.”