47
consider the specific protection that is involved, for example, that they not be
arbitrarily denied a family medium148 and that they not be retained and illicitly
transferred to another State. 149 In the present case, illegal transfer of Maria
Macarena Gelman's her mother to another State in her state of pregnancy with the
mentioned purpose (supra para. 97), prevented the birth of the girl in the mothers
country of origin where she normally would have been born and acquired Uruguayan
nationality because of an arbitrary situation, in violation of the right recognized in
Article 20(3) of the Convention.
129. In this case, the facts affected the right to personal liberty given that, in
addition to the fact that the girl was born in captivity, her physical retention by State
agents, without the consent of her parents, implied an infringement to her liberty, in
the broadest terms of Article 7(1) of the Convention. While children are subject to
human rights, this right implies the possibility of all human beings to selfdetermination and to freely choose the circumstances and options regarding their
existence. In the case of children, they exercise this right in a progressive manner in
the sense that the minor of age develops a greater level of personal autonomy with
time,150 to which in their infancy they carry this out by way of their next of kin. Thus,
the separation of a child from his or her next of kin implies, necessarily, a threat to
the exercise of the child's liberty.
130. The proven facts also affected the right to life, enshrined in Article 4(1) of the
Convention, to the detriment of Maria Macarena Gelman, in the extent that, due to
said separation, her survival and development was placed at risk, that which the
State was obligated to ensure, pursuant to the provisions of Article 19 of the
Convention and Article 6 of the Convention on the Rights of the Child, particularly
through the protection of the family and the non-interference of an unlawful or
arbitrary nature in the family life of the children, given that family plays an essential
role in their development. 151
131. The situation of a child whose family identity has been illegally altered and
caused by the enforced disappearance of a parent, as is the case concerning María
Macarena Gelman, ceases only when the truth about said identity is revealed by any
medium and the victim is guaranteed the factual and juridical means to recover a
true identity and, where appropriate, a family relationship, with the relevant legal
effects to follow. As such, the State did not guarantee her right to juridical
Perú. Merits, Reparations and Costs. Judgment of May 30, 1999. Series C No. 52, para. 100, and Case of
of the Yean and Bosico girls, supra note 143, para. 139.
148
Convention on the Rights of the Child, Article 16.
149
Convention on the Rights of the Child, Article 11, and Inter-American Convention on International
Return of Childrend, Article 4º.
150
Cf. See Committee on the Rights of the Child. General Comment 7: Implementing child rights in
early childhood, 40 session, UN DocCRC/C/GC/7/Rev.1, September 20, 2006. para. 17.
151
Cf. Advisory Opinion OC-17, supra note 131, paras. 66 and 71. In the same sense, Article 16 of
the Additional Protocol to the Convention on the American Human Rights in the Area of Economic,
Social and Cultural Rights "Protocol of San Salvador" provides that "[e]very minor child has the right to
grow under protection and responsibility of their parents, save in exceptional, judicially-recognized
circumstances, a child of young age ought not to be separated from his mother.”
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