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-

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 disappeared erupted again into Ar-

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

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 the disappeared. 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-

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

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 disappeared might 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

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]

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 the Malvinas/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]

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

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

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,

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 functionaries to respond to the Abuelas’ petitions persuaded them to change tactics. They created case files with photos of their missing children and grandchildren, displayed with a history of each case. Copies were sent to the United Nations, the Organization of American States (OAS), and the Vatican. In August 1978, the Abuelas sought the attention of the Argentine press, publishing the first collective advertisement soliciting 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.

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,

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

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]

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 of disappeared 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

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

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

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 the Madres 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-

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-

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, the Abuelas 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.

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

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 the only instance in which the issue of the legal effect of blood tests reached the Argentine Supreme Court.[116] It estab-

lished at the highest level the credibility of blood tests.[117] Laura’s case also made an important jurisdictional ruling, confirming the authority of the federal criminal courts over the custodial placement of minor children who were victims of federal crimes, such as falsification of official birth records.

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]

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-

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

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 of disappeared 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 . . .

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

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

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]

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 the Abuelas’ 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

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]

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]

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, the Abuelas held conferences which reached resolutions incorporating the Abuelas’ positions on restitution under a variety of circumstances.[171] All these sources reflect that the Abuelas always 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]

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 the Abuelas, 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 emphasized that he was not willing to take the time to further prove this because the welfare of the girl demanded that there be a fast decision that would remove any

uncertainty. By this he meant the pressing need to restore her name and the documents she needed to avoid any moral harm.[179]

When he reached 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,

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 the Psyché

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

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 Abuelas were 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-

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 the Abuelas, 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]

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 the Abuelas noted, the meaning of restitution

“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]

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]

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

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%

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 artic