Identity is a fundamental right that is particularly important in childhood, as it is established immediately after birth, giving the child the surnames that determine kinship and, therefore, their identity. However, the problem arises when this right is not adequately protected, which means that information related to a person's name is not verified against biological truth—a widespread practice in Latin America—which can lead to a violation of the right to identity, given the discrepancy between biological truth and legal identity. This is repeated in the Civil Codes of the following countries: Argentina, Bolivia, Colombia, Cuba, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, the Dominican Republic, Uruguay and Venezuela. In Ecuador, it has even led to rulings by courts that formed the basis for the 2015 reform of the Civil Code, according to which this act is unchallengeable. This confirms that there is a lack of state protection regarding the veracity of identity, which even extends to digital identity, with unverified data being entered into platforms. Due to the lack of verification, biological inconsistency could affect the essence of the individual and disturb their psyche.
The methodology of the present work obeys the following order: documentary research technique and documentary review guide instrument. Because it is based on existing doctrine on the subject, in order to contrast it with the principles of identity and state protection.
Based on these considerations, the general objective of this paper is to determine the state guardianship exercised by the State to guarantee the right to identity of children and adolescents. To address this issue, several questions arise: What regulations guarantee identity? What public policies does the state propose to guarantee identity? How does legal paternity differ from biological paternity? To answer these questions, it was necessary to establish specific concepts, including identity, state guardianship, kinship and family rights.
The value of this article is based on supporting a different idea about the importance of the right to identity and highlighting the shortcomings of state protection at the time of its creation, which is why the contribution consists of offering a different perspective.
1. Introduction
After birth, the human being acquires ipso iure the fundamental right to identity, as determined by international treaties, the most important of which is the Convention on the Rights of the Child, which contemplates it as a fundamental right intrinsic to the dignity of persons, which has led the various States to recognise this right in their Constitutions and, based on this, in their internal regulations. “In the domestic legal system, international treaties are directly applicable without the need for legislative conversion …” (Heikal, 2025, p. 6) Although it should be pointed out that the case of Ecuador is somewhat different, as it has a “Constitutional State of Rights” model; therefore, it is assumed that any recognised right must be material and that its possible violation reflects a failure in the exercise of state protection.
The importance of the right to identity being constituted immediately after the birth of the child is to create the kinship that unites, in legal terms, the newborn with its nuclear and extended family, which, according to numerous doctrinal texts, is the main responsible for exercising the rights of the child, and in the absence of the latter, the State. For this reason, age represents a conditioning factor for the exercise of the right to identity; it can even be said that the right initially belongs to childhood – although it accompanies the human being at all ages – which is why the need to protect it is emphasised.
Regardless of the multiple aspects that identity encompasses, its constitution concentrates on two: nationality and name. Nationality generates the State's obligation to guarantee the rights of the new citizen, while the name identifies the person as being different from any other. As far as nationality is concerned, this data is established in various ways, the most precise being the Live Birth Statistical Certificate, which is issued by the health centre that attended the birth and which certifies the place of birth and, therefore, the nationality (Lugulu, 2024).
On the other hand, the name does pose several disjunctions with the Law and mainly with identity, since the surnames that identify the being and his relationship with his family do not require any verification in the case of the father, since this act is produced with the voluntary recognition of the child – simple word – before the Civil Registry, without any type of verification.
Once the legal father has recognised the person he claims to be his child, family relations are consolidated, which, due to the age of the child, are essential for the exercise of his rights; however, in the absence of the scientific method, there is no certainty that these subjects are related. This is why the law establishes a difference between the term “legal father” and “progenitor”, because the latter is oriented towards determining the biological origin of the offspring, which is not being verified.
In spite of the fact that, in law, scientific verification of paternity and filiation is not determined in order to establish kinship and establish identity data – which should be a rule – this legal reality is practised in Latin America, among the following states: Argentina, Bolivia, Colombia, Cuba, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, the Dominican Republic, Uruguay and Venezuela. This openly questions the effectiveness of state protection of this right.
Now, the violation of one of the rights of children and adolescents – especially identity – places the child in a different family environment, which implicitly violates other rights, since their exercise depends to a large extent on the family environment, referring to the rights derived from parental authority, such as custody, food, visits, legal, judicial and extra-judicial representation, among many others.
From this reality, it can be argued that identity is not being protected – scientific contrast – or, in terms of this research, the State is not exercising state protection to guarantee the attainment of the right. On the contrary, the regulations present in the Civil Code of the different States allow any third party to recognise a child as a child, with which identity can be violated because it does not allow access to knowing one's own origin.
This is evidence of an absence of norms and public policies to guarantee identity. Not requiring scientific proof to corroborate the biological truth in child recognition processes seriously compromises the guarantee of the fundamental right, which is even worse when this violation is directed at a priority group. In this way, recognition based solely on the declaration of third parties becomes a practice that can harm the dignity and identity of the child.
That said, the Ecuadorian case has an even more erratic connotation, since, in addition to not exercising preventive state protection to avoid the violation of the right to identity, it does not exercise any type of sanctioning protection to fully repair the fundamental right when it is proven that it has been violated. Incredible as it may seem, it even restricts the possibility of claiming the violated right through regulations that make the challenge of paternity unfeasible, causing a continuous deprivation of the right to identity and all its legal effects.
Having said this, the objective was to establish whether the regulations offer any kind of guarantee in the constitution of the right to identity and, in turn, the sanction offered in the event of possible cases of violation, in addition to comprehensive reparation. On the other hand, it is essential to understand the role of the State, especially those that call themselves Constitutional Rights, in order to effectively guarantee this right.
2. Methodology
The methodology used is based on a post-positivist paradigm because positive law is analysed in contrast with the existing reality on the subject. A qualitative approach was applied. The scope is explanatory because it aims to explain the current situation of the research topic and to propose possible solutions. The method is the bibliographic documentary research, based on the analysis of legal sources related to the object of study; therefore, the technique is the documentary review guide, through the MENDELEY programme. Finally, a synthesis process was carried out to encourage discussion and, through a new synthesis process, to reach conclusions.
This allowed for a thorough review of specialised articles and texts related to the right to identity and state protection, covering the period 2018–2024. Relevant classic works were also included, four of which are more than ten years old, justified by the recognised track record of their authors in the study of children's rights. Initially, 75 references from academic repositories such as SCImago, Publindex, EBSCO and Scielo were analysed. However, 42 specialised sources were selected.
The methodological approach adopted in this research was based on the analysis of empirical cases resolved by the Inter-American Court of Human Rights, given that this body is the highest authority on human rights protection in the region. Emblematic cases were selected that gained international notoriety for revealing the omission or direct responsibility of States in the violation of the right to identity. These jurisprudential decisions were essential in highlighting the absence of effective state protection and the need to guarantee comprehensive reparation measures in accordance with international human rights law.
The methodological process was carried out in three phases. First, the 42 sources selected through documentary research were reviewed and documented. Second, the fundamental concepts related to identity and state guardianship were categorised and analyzed in accordance with the references reviewed. Finally, these theoretical and conceptual tools were applied in the drafting and structuring of the research results. This approach was complemented by a sociological and psychological contextual analysis, supported by 11 specialised sources, which provided an understanding of the relevance of the right to identity and the consequences of its violation.
3. The right to identity and its relationship with children's rights
Within the framework of the protection of the rights inherent to human dignity, identity acquires a fundamental importance, constituting not only an autonomous guarantee but also a structural element that makes possible the exercise and recognition of other fundamental rights. Identity allows the individual to be legally recognised, to exercise his or her personality and to participate fully in legal life. Its protection is therefore indispensable to ensure the integrity of the human rights system. The United Nations Children's Fund (UNICEF, 2011), states “… the legal and social recognition of a person as a subject of rights and responsibilities and, in turn, of his or her belonging to a State … a society and a family, a necessary condition for the preservation of individual dignity …”
Although the right to identity is exercised throughout the life of human beings regardless of their age, it is important to say that it acquires a special connotation when it refers to children and adolescents, since it is initially constituted as a priority attention group “… as they are considered vulnerable groups, they have a reinforced protection when it comes to guaranteeing their rights …” (Hernández Muñoz, 2018, p. 15).
According to the Statistical Records of Live Births and Foetal Deaths kept by the National Institute of Statistics and Census of Ecuador (INEC), in 2024 there were 215,714 live births, all of whom need to be recognised by their parents in order to obtain their identity (Instituto Nacional de Estadísticas y Censos de Ecuador INEC, 2024, p. 1). This shows that children and adolescents are particularly susceptible to the violation of their rights, which is particularly serious. In particular, identity generates several other rights inherent to family relationships, and therefore, its violation directly violates other children's and adolescents' and family rights. “… the identity of a child constitutes the most important factor of children's rights” (Gurjar, 2009, p. 1).
On this point, although children and adolescents enjoy progressive recognition of their capacity to exercise their rights, in accordance with their development and maturity, they initially require the family to exercise their rights due to their conditions, which prevent them from exercising them directly or even understanding them. Emphasising that children and adolescents are holders of their rights as established in the Convention on the Rights of the Child (Creț, 2024, p. 161).
For these reasons the United Nations Children's Fund (UNICEF) has issued the following reports: (1) Birth Registration in Latin America and the Caribbean (UNICEF, 2011); (2) The birthright of every child: inequalities and trends in birth registration (UNICEF, 2013) and (3) Right to identity (UNICEF, 2018).
However, it is impossible for an infant to directly exercise his or her right to identity; in these considerations, the legal sphere attributes the legal representation of the newborn to the mother, based on the biological certainty of the maternal-filial bond, evidenced by childbirth. This biological reality constitutes the irrefutable proof of birth and of the mother's identity, giving the mother the legal basis for the immediate exercise of rights and duties on behalf of the infant, especially with regard to nationality and filiation, components of identity.
González (2011) states:
This difference derives from the special nature of the legal framework for children and adolescents, largely due to the assignment of a lack of autonomy that leads to the attribution of legal incapacity while they are minors. Evidently, this is reflected in a very special way in the ownership and exercise of political rights which exclude persons under 18 years of age …. (p. 109)
Due to the limited legal capacity that characterises minors, they cannot on their own initiate legal action to exercise their right to identity, especially to challenge an acknowledgement of paternity made without a biological basis. This restriction is aggravated when the acknowledgement has been made by a third party and not by the parent, a situation which violates the identity of the acknowledged child and which, moreover, implicitly causes the child to be limited in his or her ability to use the judicial state apparatus.
This highlights the limitation of the exercise of the right by the age of the holder, who is seriously conditioned by his or her self-determination. As a result, the most important right of childhood – after life – is not being guaranteed, causing uncertainty about the child's origin. De Lorenzi (2015) points out: “… identity is forged in the past, in the origins of the human being, it goes through the present and is projected towards the future; and although in this evolution certain characteristics may be modified, the essence of the person remains.” (p. 123).
On the basis of the grounds set out above, it can be asserted that the inability of a minor to exercise the right to identity – at least at an early age – prevents him from requesting that his identity be established on the basis of the biological truth; it also limits him in the event of a subsequent claim when the right is violated.
The act is based on a lie; what is really important in this declaration is the knowledge of the agent who executes it voluntarily, even knowing that the reality does not coincide with the recognition, in any case the false declaration is only elucidated until the paternity or maternity is challenged by those who are empowered by law to exercise the action. (Cortés and Blanco, 2015, p. 31).
Therefore, it can be anticipated that States, particularly those that identify themselves under the model of “Constitutional State of Rights”, have the obligation to protect and guarantee the right to identity in an effective manner; furthermore, it is a non-extendable obligation that, in case of violation, provides all the necessary means to recover it, as well as to guarantee its integral reparation.
… in the event that the victims or any of them are found alive after the steps taken by the State, the State must assume the costs of their identification using reliable methods, of their reunion and the necessary psychosocial care, provide the measures to re-establish their identity and make the necessary efforts to facilitate family reunification, if they so wish. (Inter-American Court of Human Rights, 2011, p. 70).
In this way, the identity of minors must be guaranteed by the State in two ways. The first is through preventive state protection that contributes to the full exercise of the right and prevents its violation by means of the promulgation of norms and public policies. And the second, through sanctioning state protection, which begins when the violation of the right is verified, with the aim of recovering the right in its entirety.
4. Digital identity systems and biometric data
Currently, states have begun to implement digital identity systems – European e-ID, Aadhaar in India, or the digital Civil Registry in Ecuador – which allow for the legal recognition of individuals through technological platforms linked to civil data registries. These systems constitute an extension of legal personality in the electronic environment, as they guarantee the authentication and verification of identity through digital means for the constitution of legal acts. “… the legal personality is usually carried out only in connection with the need to protect human rights and freedoms in the digital age, including in virtual space” (Stepanov and Stepanov, 2022, p. 20).
Although the definition provided is commonly accepted, it is prudent to note that digital identity has other definitions that broaden its context. Digital identity consists of information stored and transmitted digitally, used to access services and carry out transactions in both the public and private sectors (Sullivan and Tyson, 2023).
However, for the purpose of this research, family relationships and the child's identity are created through voluntary recognition of the child – mainly in the case of the father – which means that if there is a discrepancy between the biological and legal truth, the error would be reflected in the digital identity on any platforms containing the minor's data. Therefore, it is clear that effective guardianship should be consolidated in the voluntary recognition of the child – especially in the case of the father – so that the digital identity reports accurate data.
The reason for calling for formal recognition of personality rights in relation to digital identity, is that all modern digital identity schemes are founded on the presumption that the digital identity recorded and used under the scheme is authentic, accurate and exclusive. (Sullivan and Stalla-Bourdillon, 2015, p. 269)
In the case of children, digital identity plays a fundamental role in ensuring their early registration in the civil registry, their access to health, education and social security services, and the full effectiveness of their fundamental rights, particularly family rights. Failure to recognise the digital identity of minors can lead to exclusion and marginalisation, deepening existing social inequalities.
Digital identity must be based on the accuracy of data, which is why it is essential for the State to collect unique biological information from each individual – fingerprints, iris scans, facial patterns, voice recordings, DNA – to authenticate their identity. In other words, digital identity requires the child's DNA information and, according to this study, necessarily that of the parents, to guarantee accurate data. Unfortunately, this is not the case in Latin America (Newton et al., 2022).
Identity is made up of a series of elements, including biological, gestational, and genetic factors that are relevant to the initial recording, potential modification, and restoration of family relations. While some countries, through their legislation, policies, and practices, have slowly moved toward the recognition of these elements and have made efforts to ensure that the right to identity is respected. (Baglietto and Bordier, 2024, p. 222)
On digital platforms, DNA can be used to construct narratives of biological and family identity, especially in cases of adoption, gamete donation, or searches for origins. However, this is important in any context where identity is discussed, particularly in the case of children, as they require enhanced protection from the State due to their age and needs, which is not currently provided.
5. The constitution of the right to identity and preventive protection
From its epistemological conception, “identity” refers to the singularisation of the human being, through the determination of the elements that distinguish him or her. For this reason, the constitution of identity begins with the recognition of paternal and maternal filiation, name, a fundamental process for establishing family relations. This identification data not only determines the biological origin but also structures the family rights of the individual.
In this sense, the name composed of the paternal and maternal surnames contains the necessary information to establish infant-juvenile and family rights. “… through the name one is usually related to a family environment with the legal consequences that this entails: kinship, filiation, maternity, paternity …” (López and Kala, 2018, pp. 68-69).
In order to constitute the right to identity, the birth must be registered in the Civil Registry, the specialised doctrine incorporates the concept of “filial identity”, understood as the concordance between the legal filiation and the biological reality. This category underlines the need for the legal determination of maternity and paternity to be based on genetic truth in order to guarantee the right in a comprehensive manner.
The mother–child relationship enjoys enhanced protection, as there is immediate biological certainty arising from childbirth. This certainty is legally supported by the “statistical certificate of live birth”, an official document issued by the health establishment or the professional who attended the birth. Such an instrument constitutes direct proof of maternity and allows the birth to be registered in the civil registry without question. In this way, the legal recognition of maternal filiation is guaranteed, strengthening the newborn's right to identity from the moment of birth.
Attending a birth, from the point of view of health sciences expertise, must contemplate, in an obligatory manner, the filling out of documents such as … the “live birth” certificates … with the purpose of being a truthful, necessary and sufficient support … (Olaya et al., 2011, p. 248).
However, the establishment of paternal filiation presents legal complexities that may violate identity, because in reality the biological truth is not verified as a condition for the effective establishment of the child's identity. Simply put, the procedure for this is the voluntary acknowledgement of the child, in which any man can appear before the Civil Registry and with his word alone create the paternal-filial relationship, without any kind of verification, which leaves open the possibility of paternity fraud.
Epstein (2009) argues:
In the case of children, the imposition of another's identity results in the denial of the as-yet-unknown identity, and thus becomes real identity. In this new identity, in which there is a concealment of the aforementioned situation of denial, a new form of being appears, being in reality the denial of being. (p. 5).
Due to the omission to verify the biological truth of the human being, an identity could be constituted based on a false fact, which distorts the biological truth and the information about one's origin, ultimately violating the right. Consequently, an eventual challenge would not only alter the constituted identity but also affect related family rights.
As with any other right that requires a factual basis for its validity, filial identity must be demonstrated objectively. In this context, the scientific test par excellence is the DNA test, as it allows confirming or ruling out the existence of a biological link with a high degree of certainty. This analysis stands as a suitable mechanism to legally support the act of voluntary recognition of children, establishing the right under which the man who seeks to recognise a child acts.
In order to be legally speaking, all filiation must be legally proven … Legally speaking, one cannot speak of filiation if there is no proof of it. Filiation as a legal bond has its basis in the natural fact of generation. Every person, from the natural or biological point of view, has a father and a mother. But, as long as the natural fact has not transcended into the legal field and has not been legally established, there is no legal bond of filiation. (Aveledo, 2016, pp. 302-303).
In this order of ideas, it is clarified that preventive state protection is the obligation to dictate norms and public policies aimed at avoiding the violation of the right to identity. “… the purpose of preventive protection is to act before the damage is done … because it seeks to protect the right itself …” (Zela, 2010, p. 42) In the case of identity, preventive protection takes on two dimensions: the universality of the right and the veracity of all identification data, including the name.
The universality of the law can be verified because, as there is no requirement to prove paternity, the procedure is simple—a simple affirmation—the problem lies in the veracity of paternity, since the only scientific means of doing so is DNA testing, which is not requested at the time of establishing filiation. DNA analysis, especially using markers such as short tandem repeats (STRs) and variable number tandem repeats (VNTRs), allows genetic profiles to be compared between the alleged father, mother and child, achieving a certainty of paternity greater than 99.9% (Essam, 2020).
DNA testing should be an essential requirement for proving the validity of child recognition, as with any legal act that requires legal proof to be constituted. Unfortunately, there is a total lack of state protection in this regard. On the contrary, Ecuadorian law and comparative law irresponsibly omit to verify paternity, despite the fact that this forms the basis of the newborn's identity. It is important to note that the state must verify paternity in order to guarantee the identity of the child, taking into account the social reality of the couple.
Paternity issues always happen due to huge problems between married couples. It happens when married women enter a sexual partner in her life so the child will be not the son of her husband. There are also many cases that lead to paternity and also lead the father to deny his son or daughter and vice versa. (Kareem et al., 2020, p. 2)
It is pointed out that the legal practice in the different Latin American countries is the same: the maternal-filial link is proved by means of the statistical certificate of live birth, which demonstrates the biological reality of the birth and the right with which the mother acts to establish the identity of her child. Whereas, the paternal–filial relationship does not require proof to be constituted, any man can recognise any newborn as his child with his word alone, thus creating the identity of the minor, whether or not it is in accordance with reality.
Ecuadorian legislation is quoted for a better understanding, Ley Orgánica de Gestión de la Identidad y Datos Civiles, Article 45: “Recognition value. The birth registration legally made shall have the value of recognition, if it has been made personally by the parent or parents or their representative empowered for that purpose” (National Assembly of Ecuador, 2016).
With regard to the aforementioned legislation, which is similar to that of Latin American countries, it is argued that there is no verification of the biological truth as a requirement for the constitution of identity before the Civil Registry, and that this omission allows recognition by third parties, thus violating the identity of minors, which, in short, means that the State does not protect the constitution of the right to identity in a preventive manner.
6. The violation of the right to identity and the sanctioning protection
Due to the fact that there is no preventive state protection that guarantees the right to identity in relation to the veracity of the name or the paternal-maternal-filial link, it is evident that paternity frauds can occur, although maternity frauds are less common, although it should be specified that they do exist. This is why, once the violation has been verified, it is necessary to proceed to the sanctioning protection so that the child recovers the right, and even a full reparation can be made. “The State has the obligation … to quickly re-establish their identity” (Álvarez, 2016, p. 115).
The sanctioning guardianship is, in concept, all action directed by the State when the violation of a right has been verified. Within this procedure, the recovery of the right as such must be established, which, in this case, is the filiation identity with attachment to the biological truth and, on the other hand, the integral reparation of the right, which implies, among other issues, family rapprochement, payment of all expenses to correctly establish filiation and family rights that have been violated (Manhora et al., 2024).
In the administration of justice, the integral reparation of the right to identity must be guaranteed when filiation data is violated, because such a situation implies a profound transgression of identity, both in its static aspect – registry elements and filiation – and dynamic – social and affective relationships. This alteration imposes on the child or adolescent a drastic change in the family group, affecting all his or her infant, juvenile and family rights.
The search for their roots gives reason to exist in the present through the reencounter with an unrepeatable individual and group history, which is essential in the stages of life in which the personality must be consolidated and structured … The matter is not a punctual fact, it is a construction, a network that encompasses false announcements, secrets and conscious and unconscious prohibitions that circulate and are transmitted through all the details of upbringing. When lies and secrecy are present in the child-adult relationship, the child receives contradictory messages: verbally he is given information, but through implicit behaviours he is given a contrary message (López de Faura, 2004, p. 153).
In the context of the sanctioning of protection and comprehensive reparation of the right to identity, a serious normative omission must be pointed out in Latin American countries, due to the lack of specific legal provisions that ensure comprehensive reparation when identity has been violated. This normative absence also extends to the lack of mechanisms to restore the rights of persons who reach the age of majority and whose identity was built on a false filiation, annulling their legitimate family ties and rights for an entire existence.
Although sanctioning protection should be effectively exercised by the state regardless of its model, in the Ecuadorian context there is evidence of ridiculous legal phenomena that call into question its guarantees. These phenomena, far from strengthening the protection of the right, hinder the sanctioning protection of identity, generating a contradiction between the concepts of identity, the normative discourse and institutional practice (Roca, 2019, p. 4).
The main reference regulation is found in the Ecuadorian Civil Code, articles: 248: “Recognition is a free and voluntary act of the recognising parent. In all cases the recognition shall be irrevocable”. 249: “Recognition may be made by ….” 250: “The absence of a blood relationship with the person recognised does not constitute proof for the impugnation of the recognition …” (National Congress of Ecuador, 2005).
As can be seen, the current Ecuadorian regulations on filiation identity present a serious contradiction with the sanctioning protection by preventing the impugnation of filiation when errors are detected in the identity data or genetic mismatch. This normative restriction obstructs the exercise of the right to identity, preventing its recovery as well as its integral reparation. Therefore, it can be argued that, in the case of Ecuador, there is no sanctioning protection for cases of identity violation. A model of legal protection based on restorative justice, involving collaboration between law enforcement, government, families and communities, can improve transparency, justice and the protection of children's rights in the justice system (Hosnah et al., 2025, p. 43).
Such a normative impediment not only perpetuates situations contrary to the biological truth but also prevents the correction of flawed records, affecting the integrity of the legal system and compromising the development of related rights of a family nature. “Rules that obstruct the establishment of filiation that corresponds to biological reality are unconstitutional” (Zenere and Belforte, 2001, p. 145).
7. Incidence of the violation of the right to identity in the sociological and psychological spheres
As mentioned above, the right to identity concerns the most intimate aspect of human beings, their very existence. That is why identity has several components recognised in law, such as knowing one's origins and family relationships, among others. However, these connotations stem from a profound sociological and psychological meaning, which will be explained below.
The right to know one's own origins has been recognised as a component of the right to identity in its static dimension, because when human beings' names are established, they can determine their historical background, which in fact underpins other components that influence the construction of the dynamic dimension of identity. It is in this way that it can be argued that, sociologically speaking, identity and the component of knowing one's own origins have a major impact on the development of personality. “Identity is constructed through processes of exploration and commitment to values, roles and belongings, influenced by the family” (Crocetti et al., 2022, p. 161).
A clear example of this is the so-called cultural identity, which is based entirely on knowledge of one's own origins as the foundation for the construction of identity, given that there are distinctive traits in human beings that condition development on the basis of culture, as is the case with people who belong to indigenous communities, who have the right to know their cultural, linguistic and educational origins, among others (McLean et al., 2018, p. 642).
To enrich the theoretical framework, it is interesting to refer to cultural identity, understanding culture as a system of shared beliefs, values, customs, behaviours and artefacts that members of a society use and that are transmitted from generation to generation through learning. (Chica Andrade et al., 2024, p. 2)
Based on sociological evidence, empirical evidence supports the idea that a well-developed identity and knowledge of one's origins are fundamental to the integral development of human beings. By knowing their ancestral reality, individuals can fully exercise their identity, which has a positive influence on personal growth and social adaptation. For this reason, genetic identity should correspond to legal identity, allowing individuals to understand their origins and gain a complete understanding of themselves.
The United Nations human rights regime is heavily invoking these provisions to protect cultural identity of indigenous peoples and enjoy their traditional way of life. Cultural rights can be realized with other rights like right to impart education in their mother tongue, right to adequate standard of life, right to express their opinion in their own dialect and so on. (Singh Gill, 2021, p. 5)
In this same vein, this research project is proposed, given that the Ecuadorian State does not exercise state guardianship that allows for verification of the biological relationship between the newborn and the alleged parents at the time of recognition before the Civil Registry. This allows for the possibility that recognition may be carried out by a third party who confuses or falsifies the true origin of the child, which seriously affects the cultural identity that is the sociological reality of the human being.
Although the purpose of this section is to highlight the sociological impact of identity, it is essential to examine real cases that have occurred within the legal framework, specifically those arising from the violation of the right to identity and the right to know one's origins. To this end, we briefly refer to Judgment Series C No. 118, issued by the Inter-American Court of Human Rights on 23 November 2004, “Case of the Serrano Cruz Sisters v. El Salvador” which, in its analysis, determined:
The right to identity presupposes free knowledge of personal and family data, and access to it, in order to satisfy an existential need and safeguard individual rights. This right also has a significant cultural (as well as social, family, psychological, and spiritual) dimension, proving essential to each person's relationship with others and even their understanding of the outside world and their place in it. (Inter-American Court of Human Rights, 2004, p. 6)
In the psychological sphere, identity has even greater depth, because certainty about one's origins allows for the full development of personality, especially on the basis of family relationships, recognising the importance of the family in the formation of human beings of all ages and its significance when children reach adulthood. This is because, in establishing identity, family relationships are established and, with them, the formative environment.
Family system theorists argue that individual development and autonomy achievement occur within healthy functioning family systems characterized by age-appropriate levels of autonomy and relatedness. In such families, individual autonomy is encouraged within the context of warm and supportive relationships. (Haydon et al., 2023, p. 4)
In this way, the formative process referred to in law as “comprehensive child development” is conditioned by family relationships; the nuclear and extended family responsible for raising the child will influence their psyche. The development of identity is a central task in adolescence and is closely linked to psychological well-being. A consolidated identity and commitment to personal values and goals are associated with higher self-esteem, resilience and overall well-being, while confusion or diffusion of identity is related to symptoms of depression, anxiety, eating disorders and self-harming behaviours (Samaey et al., 2025).
Returning to the legal sphere, it is important to note that the psychological damage caused to human beings by the establishment of a false identity has been analysed in important court rulings. The impact of learning the biological truth after living with a false identity and the suffering caused by depriving human beings of what they considered to be their family highlights the need for the State to verify identity in order to establish it.
By way of example, we briefly refer to Judgment Series C No. 221, issued by the Inter-American Court of Human Rights on 24 February 2011, “Gelman v. Uruguay”, which, in its analysis of the psychological expert report on Macarena Gelman García, concluded: “… she has been affected in the most intimate part of her being: ‘her identity,' as knowledge of the facts ‘ … made her falter and destroyed her inner world … ’ ‘ … she presents symptoms that disrupt her life, prevent her from resuming a project for her future, and cause her pain …” (Inter-American Court of Human Rights, 2011, p. 36).
8. Results and discussion
The results and discussion show that there is a serious disjuncture between the right to identity and the exercise of state protection, which, as has been determined in the work, is scarce, contradictory or non-existent. Therefore, the basic argument is that the right to identity is not being effectively guaranteed by the state, and therefore, all the principles and foundations on which identity is built are in reality merely theoretical, which violates the right and, in turn, violates the rights of children and young people and their families that derive from it. In response to the research questions, it can be seen that in both Ecuador and Latin America, there are no regulations or public policies that guarantee the right to identity or biological truth for minors. Therefore, in reality, there is no differentiation between biological paternity and legal truth.
In general terms, identity constitutes an essential right; for children and adolescents, its protection acquires a reinforced dimension because it is projected onto a group of priority attention, with limitations inherent to their age that restrict the direct exercise of the right. Faced with this legal incapacity, it is the State's responsibility to guarantee the right through preventive and punitive state protection.
Preventive state protection should assume an active role in the protection of the right, which implies the issuing of norms and public policies that ensure the veracity of the identification data, especially at the stage of the constitution of the paternal-maternal-filial link. In the maternal sphere, filiation is legally accredited by means of the statistical certificate of live birth, proof of birth. In paternal filiation, the voluntary recognition of a child is made without any genetic proof, which opens up the possibility of fraud that violates identity.
This legal omission generates identities based on false facts, with serious legal implications for family rights. It became evident that Latin American states allow the registration of filiations without verifying the biological truth, thus failing to fulfil their obligation to exercise preventive state protection and guarantee the right. “The protection of the proposed right reflects, protects, and creates a social reality in which children's lives can be imbued with personal meaning” (Baglietto and Bordier, 2024, p. 3).
The absence of preventive state protection in matters of filiation identity allows for fraud, particularly in the area of paternity. Consequently, when a violation is found, state sanctioning protection must be activated in order to recover the violated right and guarantee its integral reparation, in accordance with the State's obligation to guarantee fundamental and constitutionalised rights.
Sanctioning protection, in essence, includes actions aimed at recovering the violated right and fully repairing the damage caused as a result of the violation. However, in reality, there are no regulations that determine the actions to be taken in the case of a violation of the right to identity, which is replicated in Latin American countries.
However, in the Ecuadorian reality, the regulations are in contradiction with the constitutional principles of identity protection, as they perpetuate situations that are contrary to genetic truth or, in fact, oppose it. The lack of effective mechanisms to challenge the vitiated filiation demonstrates the lack of an intention of reparation, which violates fundamental rights and shows a gap between the guarantee model proclaimed by the State and the current legal practice. This makes the current legislation a structural obstacle to the exercise of effective sanctioning protection.
9. Conclusions
The right to identity is a fundamental and constitutionalised right, indispensable for the protection of human dignity. In the case of children, it acquires an even more important connotation because it creates the kinship that establishes family relationships, responsible for exercising the rights of children and adolescents and the minor's family.
Given that the child at an early age does not have sufficient conditions to exercise his or her rights –despite being the holder – the state has the obligation to exercise a reinforced state guardianship that guarantees the right to identity.
It is essential to carry out more exhaustive comparative or transnational studies in this area of the right to identity and biological truth, both in Ecuador and in the other countries that make up Latin America.
Preventive state protection must protect the right and avoid its violation through norms and public policies which, in the case of identity, should ensure the veracity of identification data. In spite of this, paternal filiation is established by mere word of mouth, without checking the genetic truth, which opens the possibility of fraud that violates the child's identity.
Latin American states do not have legislation that allows for the sanctioning protection of the right to identity when it has been violated. The case of Ecuador is even more extreme, because its legislation prevents its recovery and, consequently, its full reparation.
The only means that protects the identity of the minor is the comparison of the genetic truth; therefore, in order to exercise effective preventive protection, the requirement of DNA testing should be incorporated into the law to support the right of the father to establish the identity of the minor. This would not lead to a violation of identity, and, as such, it would not be necessary to proceed to the sanctioning protection.
Digital identity is based on biological data that the State should collect and verify, including the DNA of the child and parents—which is not requested—to guarantee parentage. Unfortunately, this does not happen, so in the event of a biological error in the recognition of a child, this would be transferred to the platforms that allow the exercise of digital identity.
The lack of identity verification can lead to a mismatch between biological and legal identity, which has devastating effects on human beings, sociologically denying their existence and also altering their psyche, as they realise that they have been living a false identity.
