DRAFT LAW NO. 178 /X

PATERNITY/MOTHERHOOD RESEARCH-(CHANGE OF

DEADLINES)

Exhibition of reasons

Knowledge of true ancestry is a relevant aspect of personality

individual, which, in addition to representing an effective condition of full enjoyment of the right to

personal identity and the right to the name, takes on it itself the nature of law

fundamental with constitutional dignity, as stated by the Constitutional Court,

by the Judgment No. 99/88 of April 28: " there is a fundamental right to the

knowledge and recognition of paternity-which constitutes a 'reference'

essential of the person-, right that is extracted is from the right to personal integrity, and in

particular to the integrity 'moral', be it of the right to 'personal identity', recognized in the

articles 25 (1) and 26 (1) of the Constitution ".

The right to personal identity is therefore a right that our Constitution enshrines

as a fundamental right and the meaning of which translates into the guarantee of the identification of each

person, as an individual, singular and irreducible, and which covers, in addition to the right to

name, a right to "personal historicity".

In turn, the right to personal historicity designates the right to knowledge of the

identity of the progenitors, and may substantiate, for example, the right to research

of paternity or motherhood.

The question of the deadlines for the purposeful of the research actions of the

paternity / motherhood met during the history deep changes.

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The Ordinations set a deadline of 30 years for the research actions of

paternity, however the Code of 1966 would come to shorten the term of proposition of the action,

apparently " as a way to fight the investigation as pure hunting instrument à

paternal inheritance ".

While countries such as Italy, Spain or Austria have opted for the printability

regarding paternity research actions, as they consider that the demand for the

omit bond of the biological ascendant is a value that prevails over any others

relating to the progenitor's claim, in Portugal and following the wording given to paragraph 4 of the

article 36 of the Constitution of the Portuguese Republic, which abolished the legal distinction between

legitimate and illegitimate children, the Civil Code was reformulated in 1977, however, that review,

has not changed the deadlines set for the research actions of paternity.

The reason that apparently originated the limitation of the time frame for the implementation of the shares

of paternity research was the " combating the action of the legal determination of the parent, as

pure instrument of hunting for parental inheritance, when the father was rich ", however, as if

refers to the Recommendation 36 /B/99 of the Ombudsman and to our view, well, " the truth

is that the course of time cala the revelation of the progeny and the legal relevance of the

parentage, yet no inheritance exists or intends ".

On the other hand, and there are no doubts about the legitimacy of the tutelage of interest

researcher's heritage underlying the research action of paternity, as it does not

if you are glimpses because it is that your rights in this matter should be distinct from any

other heirs, it is also true that not all children of incognito parents target the

getting an inheritance.

In this connection, it is still read in the said Recommendation, quoting Prof. Moitinho de

Almeida, " ... There are still children of father incognito, because they have not dared to allow themselves to

the children who, at the mercy of the various circumstances among which avulates ignorance, already

let go of the deadline to investigate their parenthood, could still do so,

although without inheritance effects. What especially interests them, is not any inheritance, in the

greater part of the non-existent cases, but rather the assignment of a known parent to se

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be able to present before the public repartitions, where they have to decline their membership,

without exhibiting the ferrete of its inferiority of children of father incognito ".

By constitutional imperative the law can only restrict rights in the cases expressly

provided for in the Constitution, however the fact that the researcher does not power, at all time,

propose the respective research action, sets up, in our view, a real constraint

to the exercise of that fundamental right.

On the other hand, affirming the Constitution that the children born of marriage and the outside of it

are found to be in the same situation, it is manifest that the legal regime enshrined in the article

1817. of the Civil Code constitutes a restriction on the exercise of the right to historicity

personnel and a discrimination with respect to persons in such conditions.

The regime out of the Reform of the Civil Code of 1977, thus kept the restrictions on

exercise of the right to personal identity and personal historicity and, consequently, to the

full enjoyment of the right to the name, with regard to the deadlines for the purposeful of the action of

research of paternity / motherhood.

In the meantime, Law No. 21/98 of May 12, by allowing the initiation of action within a

year later than the date of the death of the intended mother, in case the investigator is by her

as a son and without having voluntarily ceased this treatment, came to give a

important step with regard to the removal of these restrictions.

Despite this important breakthrough, other restrictions remain in the current regime,

in particular the deadlines for the purposeof the actions in cases where there did not exist

treatment.

And being certain that there is no doubt about the legitimacy of the tutelage of interest

researcher's heritage underlying the research action of paternity, is also

certain that a solution that makes it possible, at all times, the faculty to intry the action of

paternity research, also with heritage effects, would enter into collision with

other constitutional rights, namely security, stability and certainty

legal, and would be likely to affect third-party heritage legal relationships.

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But we cannot, for that matter, stay "hostage", and not seek other solutions that

allow those who, disconnected from any material interests, only wish to,

with the action of investigation of paternity, the exercise of the right to its historicity

personnel, the right to the name.

This is what the present project aims at, allowing any time to be proposed to

of paternity / maternity research when they are supposed to only produce effects

of a merely personal nature, therefore excluded in order not to affect any possible relations

third-party patrimonial legal, any rights or advantages of a heritage nature.

Even so, we cannot say that the present project creates discrimination between

children, those who are children with the fullness of rights (personal and patrimonial) and the

others, who would only be children with uniquely personal rights, because in fact

the project will only slam or diminish the extent of the undeniable discrimination currently

existing between children with personal and heritage rights and children without rights wants

personal, wants patrimonial. Therefore, discrimination already exists, what it is intended to be

diminish the scope of that discrimination.

The present initiative was already presented in the VIII and IX Legislatures, having been

even approved in the generality on December 22, 2000, but would end by

lapse with the end of the VIII Legislature.

Having present the Recommendation 36 /B/99 of the Mr. Ombudsman and considering that the

right to personal historicity represents a true condition of full enjoyment of the right

to personal identity and the right to the name, "The Greens" through the present draft law

intend, for, to remove obstacles, constraints or restrictions on the freedom of

investigate parenthood.

Thus, the undersigned Deputies of the Parliamentary Group "The Greens" present, in the

applicable regimental and constitutional terms, the following draft law:

Article 1.

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Article 1817 of the Civil Code shall be replaced by the following:

" Article 1817.

1-(...)

2-(...)

3-(...)

4-(...)

5-(...)

6-(...)

7-As long as the intended effects are of a merely personal nature, the

action of research of motherhood can be proposed at all time ".

Article 2.

This diploma shall immediately enter into force.

Assembly of the Republic, November 7, 2005.

The Deputies of "The Greens",