register of those wishing to adopt and who were willing to pay to have a child; the young girl was
taken to another city (Victoria) where she met the couple; she entered a private clinic, at no cost
to herself, in which the couple also stayed; when the child was born the situation was
whitewashed by placing her into foster care in the presence of an officer from the office of the
Ombudsman for Children and the Poor.
12. The petitioners state that on August 4, 2000, the judged decided to close the file relating to
the legal proceedings because he was of the opinion that “leaving aside any legal and ethical
assessment of the behavior of Diana Elizabeth Enríquez and of those who helped her and/or
incited her to act in such a way, she is not punishable under the terms of Article 138 of the Penal
Code.2
”
13. They state that the prosecutor appealed against this decision on August 10, 2000 and on
September 12, 2000, the Criminal Court of Gualaguey, in the province of Entre Ríos, resolved to
revoke the contested court decision and instructed the acting judge to continue investigating the
case. However, they allege that although the investigating officer presented sufficient evidence to
substantiate a possible claim of child trafficking, the case judge on January 31, 2001 shelved the
proceedings because the act is not subject to criminal proceedings based on the argument that
trafficking babies is not defined in the criminal code and can only be sanctioned when it involves
an attack on a person’s identity or marital status, and provided that a parent/child filiation is
altered.
14. Furthermore, the petitioners allege that based on his desire and need to both know and bring
up his daughter, in the proceedings entitled “Enríquez Milagros s/ Legal Guardianship,” Mr.
Fornerón, on October 18, 2000, asked for the provisional guardianship to be halted and to have
his daughter returned to him. As part of these proceedings, given that the biological mother
denied that Leonardo Aníbal Javier Fornerón was the father of Milagros, on November 14, 2000
Mr. Fornerón underwent a DNA test, the result of which was received on December 11, 2000 and
indicated a 99.9992% probability that he was the father of Milagros. The petitioners allege that
notwithstanding this, and disregarding the fact that the child should be with her biological family,
who claimed her, on May 17, 2001, the judge of first instance in the Civil and Commercial Court of
Victoria, resolved to grant guardianship to the couple in whose care she already was.
15. The petitioners stress that the finding of the court of first instance on May 17, 2001, denies
the rights of Leonardo Aníbal Javier Fornerón as biological father, because it concludes that no
formal partnership had existed between him and Diana Elizabeth Enríquez and that the fruit of
that relationship, Milagros, was not the result of love or of a desire to set up a family, and that as
Mr. Fornerón did not know the child and was not married, Milagros would lack the presence in her
life of a mother. The petitioners are of the opinion that this argument is discriminatory and does
not respect the greater interest of the child, which would be to know and grow up in the bosom of
her biological family.
16. The petitioners state that on May 18, 2001, Mr. Fornerón appealed the finding of the court of
first instance, which was revoked on June 10, 2003 by the First Court of the Second Chamber of
Appeals of Paraná, capital of the province of Entre Ríos, because it was of the opinion that it was
necessary to essentially respect the dignity of the person of Milagros, her freedom to be with her
family of birth and her biological identity, and resolved therefore to annul the guardianship
decided by the judge of first instance in the Civil and Commercial Court of Victoria. However, both
the guardians and the Ombudsman for the Rights of Children and the Poor, on June 27 and 30,
2003 respectively, lodged appeals against the findings which were both accepted, and the
resolution of first instance was reinstated. On April 2, 2004, the Civil Court of the High Court of
Art. 138. A prison sentence of between one and four years is applicable for any act whatsoever that throws doubt on,
alters, or suppresses the legal status of another person.
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