Revista Científica Interdisciplinaria Investigación y Saberes

2024, Vol. 14, No. 3 e-ISSN: 1390-8146

Published by: Universidad Técnica Luis Vargas Torres

How to cite this article (APA):

Jaramillo, A., Maliza, S. (2024) Reconciling rights: Prenatal adoption and

legislation in Ecuador, Revista Científica Interdisciplinaria Investigación y Saberes, 14(3) 1-24

Reconciling rights: Prenatal adoption and legislation in Ecuador

Reconciliando derechos: Adopción prenatal y legislación en Ecuador

Alexandra Anabel Jaramillo León

Master in Law, mention in Procedural Law, Professor of the Faculty of Jurisprudence, Political and

Economic Sciences, Law career of the Universidad Indoamérica, Tutor of the law career of the

Universidad Técnica Particular de Loja, Trainer of the Coach Ecuador Institute.

alexandrajaramillo@uti.edu.ec

https://orcid.org/0000-0002-7556-1166

Sairy Jesus Maliza Yucailla

Eighth semester student of the Universidad Tecnológica Indoamericana.

smaliza2@indoamerica.edu.ec

https://orcid.org/0009-0000-7354-869X

The objective of this article is to critically analyze the prohibition of

prenatal adoption in Ecuador, identifying legal barriers and proposing

possible legislative reforms that would allow its implementation under

specific conditions. The effectiveness of the current Childhood and

Adolescence Code is analyzed and regulatory gaps that generate

legal insecurity are identified. The methodology used was a

bibliographic review, based on the analysis of recent scientific articles,

comparative legislations and normative documents in force. The

development of this work contemplates the ethical and legal

dilemmas, the need to guarantee the informed consent of the

pregnant mothers and the protection of the rights of the fetus.

Comparison with international models shows the importance of

implementing post-adoption support programs and international

cooperation to improve the transparency and effectiveness of the

process. Finally, legislative reforms are proposed to create a specific

framework for prenatal adoption, simplify administrative procedures,

and professionalize adoption personnel.

Abstract

Received 2024-03-12

Revised 2024-06-22

Published 2024-08-01

Corresponding Author

Alexandra Anabel Jaramillo León

alexandrajaramillo@uti.edu.ec

Pages: 1-24

https://creativecommons.org/lice

nses/by-nc-sa/4.0/

Distributed under

Reconciling rights: Prenatal adoption and legislation in Ecuador

Revista Científica Interdisciplinaria Investigación y Saberes , / 2024/ , Vol. 14, No. 3

Keywords:

Prenatal adoption, right to life, adoptive families, adoptive

families

Resumen

El presente artículo tiene como objetivo analizar críticamente la

prohibición de la adopción prenatal en Ecuador, identificando las

barreras legales y proponiendo posibles reformas legislativas que

permitan su implementación bajo condiciones específicas. Se analiza

la efectividad del actual Código de la Niñez y Adolescencia y se

identifican vacíos normativos que generan inseguridad jurídica. La

metodología utilizada fue una revisión bibliográfica, basada en el

análisis de artículos científicos recientes, legislaciones comparadas y

documentos normativos vigentes. El desarrollo de este trabajo

contempla los dilemas éticos y legales, la necesidad de garantizar el

consentimiento informado de las madres gestantes y la protección de

los derechos del feto. La comparación con modelos internacionales

muestra la importancia de implementar programas de apoyo post-

adopción y de cooperar internacionalmente para mejorar la

transparencia y efectividad del proceso. Finalmente, se proponen

reformas legislativas para crear un marco específico para la adopción

prenatal, simplificar los procedimientos administrativos, y

profesionalizar al personal de adopción.

Palabras clave:

Adopción prenatal, derecho a la vida, familias

adoptivas

Introduction

Prenatal adoption presents unique challenges in terms of the

protection of the rights of the parties involved, which makes it a topic

of growing relevance in the legal and social sphere. Despite the lack

of specific legislation that deals in detail with the adoption of a child

prior to its birth, this problem takes on greater relevance in Ecuador.

The nasciturus (fetuses) and pregnant women are in a situation of legal

Reconciling rights: Prenatal adoption and legislation in Ecuador

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vulnerability due to the regulatory vacuum caused by the lack of a

clear legal framework. "Prenatal adoption is an issue that raises

important legal and social questions, especially in countries such as

Ecuador where legislation does not yet specifically address this

practice" (Cando, 2021, p. 10).

In Ecuador, the Childhood and Adolescence Code explicitly prohibits

the adoption of children before birth. According to Article 163,

numeral 1, of the Childhood and Adolescence Code, the adoption of

an unborn child is illegal. This provision shows a big difference

between local regulations and adoption practices in other countries,

where prenatal adoption is regulated and allowed under certain

circumstances. The current situation generates a debate on whether

it is necessary to review or reform Ecuadorian legislation to adapt it

to international human rights standards and ensure effective

protection of all parties involved (Tenecora Peralta & Clavijo Banda,

2022, p. 1).

The purpose of legal adoption is for children who cannot be raised by

their biological parents to obtain a safe and stable environment.

However, prenatal adoption involves decisions about an unborn child,

which introduces a number of additional problems. This process raises

important ethical issues, such as the need to ensure that the expectant

mother gives her consent in a free and informed manner, without

pressure. The rights of the unborn fetus must also be considered

(Hernandez, 2022, p. 12).

In our country, prenatal adoption could offer a viable solution for

many pregnant women and adoptive families, provided it is

implemented with adequate safeguards. However, the current

legislative prohibition prevents this option from being considered,

leaving unexplored a potential avenue to guarantee the welfare of

unborn children and expectant mothers (Baelo Álvarez, 2023, p. 8). It

is essential that the legal framework be aligned with international

human rights principles, which promote the protection and well-being

of both the unborn child and the gestating mother (Flores, 2011, p.

3).

Under this perspective, the main objective of this research is to

critically analyze the prohibition of prenatal adoption in Ecuador,

identifying legal barriers and proposing possible legislative reforms

Reconciling rights: Prenatal adoption and legislation in Ecuador

Revista Científica Interdisciplinaria Investigación y Saberes , / 2024/ , Vol. 14, No. 3

that allow its implementation under specific conditions. It seeks to

evaluate the viability of prenatal adoption as a legal and ethical

option, considering the rights and welfare of all parties involved. In

addition, we intend to propose a regulatory framework that ensures

the effective protection of the rights of pregnant women and unborn

children, in accordance with international human rights standards.

Methodology

Adoption has been a crucial practice throughout human history and

plays an important role in shaping family structures and the continuity

of lineages. Adoption has undergone significant change from its

beginnings in ancient civilizations to its formalization in contemporary

legislation, reflecting changes in social structures, legal regulations

and cultural perceptions of family and children's rights. This evolution

demonstrates how adoption has evolved from a means of securing

inheritance and lineage to a means of child protection that seeks to

provide a safe and loving environment for children who cannot be

raised by their biological parents.

Adoption was a common practice in ancient civilizations to ensure

continuity of the family line and inheritance of property. Legal

documents from Mesopotamia and Babylonia show that families

adopted children, mainly boys, to ensure that they had heirs to

maintain their name and manage their property. The laws regulating

this type of adoption protected both adopters and adoptees,

protecting both economic and family interests (Berebitsky, 2000, p.

35). Similarly, adoption was also used for similar purposes in ancient

Egypt, although it was less common, mainly among the upper classes

who sought to ensure the continuity of their lineage and heritage.

Adoption became institutionalized as a formalized legal practice in

ancient Rome. The Romans used adoption as a political and social

tool. Adult adoption was common and was used to strengthen

political alliances and positions of power within Roman society. One

of the earliest Roman laws, the Law of the Twelve Tables, included

specific provisions on adoption, highlighting its importance in the

social and legal structure of the time.

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The historical development and conceptualization of adoption shows

how the practice has changed significantly over time, reflecting

changes in social and legal structures. In ancient civilizations, the

purpose of adoption was to ensure the continuity of inheritance of

blood and property. In Rome, adoption not only guaranteed

inheritance, but also served as a political strategy to consolidate

alliances and positions of power.

During the Middle Ages, strict inheritance laws and patriarchal family

structures in Europe significantly reduced adoption rates. Most

families preferred to keep property and lineage with their biological

descendants. However, in exceptional cases, adoption was used to

protect orphans and administer property in the absence of direct heirs

(Pertman, 2000, p. 15). The Renaissance brought a new perspective

to adoption, linking it more closely to philanthropy and child welfare.

Humanist ideas encouraged the care of orphans and foundlings as a

moral and social obligation. As a result, many more orphanages and

day care centers have been established, many of them run by religious

and charitable organizations. Adoption is increasingly seen as a way

to provide homes and families for children in need, reflecting a

gradual shift towards child protection and recognition of their rights

(Qian, 2012, p. 22).

Results

In the modern era, adoption has undergone a series of significant

reforms reflecting changes in social perceptions and advances in

children's rights. In the 19th century, adoption began to be more

strictly regulated by national laws, with the goal of protecting

children's rights and ensuring that adopters were fit to provide a safe

and loving environment (O'Halloran, 2010, p. 12). In France, for

example, the French Revolution and the promulgation of the

Napoleonic Code in 1804 marked an important milestone in the

history of adoption. The Napoleonic Code introduced a legal

framework formalizing adoption, recognizing the rights and duties of

adopters and adoptees, and establishing clear procedures for

adoption.

In Latin America, adoption has also evolved significantly over the

centuries. In Ecuador, the adoption of minors is regulated by the

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Childhood and Adolescence Code, which establishes procedures and

guarantees to ensure that adoption is carried out in the best interest

of the child. According to Article 151 of the Childhood and

Adolescence Code, the purpose of adoption is to ensure the child a

suitable and permanent family, providing a safe and affective

environment that allows for his or her integral development (National

Assembly, 2014). However, the Childhood and Adolescence Code

establishes significant restrictions for prenatal adoption, reflecting the

legal complexities and challenges associated with this practice.

In recent decades, the approach to adoption has shifted to focus

more on the welfare of the child and the rights of adopters and

adoptees. International conventions, such as the United Nations

Convention on the Rights of the Child, have significantly influenced

adoption laws around the world, promoting principles of non-

discrimination, the best interests of the child and the child's

participation in decisions affecting his or her life. These principles

have been incorporated into many national legislations, including

Ecuador's, to ensure that adoption processes are transparent, fair and

focused on the welfare of the child (Qian, 2012, p. 20).

Adoption is now seen as a legal act that establishes a legal

relationship between the adopter and the adoptee, conferring on the

child all the rights and responsibilities of a biological child. This legal

framework seeks to ensure that adopters are rigorously screened to

ensure that they can provide a safe and loving environment. In

addition, modern adoption laws include provisions to protect the

rights of birth parents, ensuring that their consent is informed and free

from coercion (Pertman, 2000, p. 17). These safeguards are essential

to ensure that the adoption process is ethical and fair to all parties

involved.

Ethical and legal dilemmas in prenatal adoption.

Prenatal adoption presents a number of ethical and legal dilemmas

that must be addressed with special consideration. From an ethical

perspective, one of the main challenges lies in ensuring that the rights

and welfare of both the unborn child (fetus) and the expectant mother

are fully respected. One of the main ethical dilemmas in prenatal

adoption is the issue of informed consent.

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It is important for surrogate mothers to understand the implications

of relinquishing their rights to a child prior to birth. According to

Berlina (2014), the complexity of the medical and legal procedures

involved in prenatal adoption can make it difficult for pregnant

women to make informed decisions. In addition, there is a risk that

vulnerable women may be coerced or manipulated into relinquishing

their children, raising serious ethical concerns about the validity of

consent.

From the legal point of view, there are regulatory gaps regarding

prenatal adoption in many countries, including Ecuador. The lack of

specific regulations can lead to contradictory interpretations and

considerable legal uncertainty. Chapple and Abramsky (1994) argue

that the lack of clear standards may result in insufficient protection of

the rights of the pregnant mother and the fetus. This legal uncertainty

not only affects those involved, but can also lead to abuse and

exploitation, especially in situations where pregnant women are in

economic or social hardship. Without a clear legal framework, it is

difficult to ensure that procedures are carried out in a fair and ethical

manner.

Another important ethical dilemma is to consider the welfare of the

fetus. Humber and Almeder (2013) emphasize that the fetus has

interests that must be protected. Prenatal adoption requires that all

necessary measures be taken to protect the health and welfare of the

fetus during pregnancy. This includes providing adequate medical

care and protection against all forms of exploitation and abuse. Due

to the lack of clear rules to protect the interests of the fetus, its welfare

cannot be fully taken into account in the adoption process.

In addition, legal dilemmas in prenatal adoption include the question

of the rights of the birth parents. Fischmann and Hildt (2011)

emphasize that the rights of the birth parents must be carefully

balanced with the interests of the unborn child and the adoptive

parents. In some cases, birth parents may change their minds after the

birth of the child, which can lead to complex and emotionally draining

legal disputes. The lack of clear and fair legal procedures to resolve

these disputes can increase uncertainty and legal insecurity in the

prenatal adoption process. It is essential that laws include

mechanisms for resolving disputes in an equitable manner.

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Similarly, prenatal adoption also raises ethical questions about

commercialization and exploitation. Rodin and Collins (2013) warn

about the risks of prenatal adoption becoming a marketplace where

pregnant women are exploited for their ability to gestate. This raises

serious ethical concerns about the dignity and rights of women, as

well as the integrity of the adoption process. It is essential that any

legal framework for prenatal adoption include safeguards to prevent

exploitation and ensure that the process is conducted ethically and

fairly.

Therefore, proper regulation and oversight are critical to address

ethical and legal dilemmas in prenatal adoption. Berliner (2014)

asserts that implementing clear and transparent policies can help

ensure that everyone involved understands their rights and

responsibilities. In addition, it is important that adoption agencies and

health care providers are trained to adequately address the ethical

and legal aspects of prenatal adoption. Education and training can

help reduce the risk of exploitation and abuse and ensure a fair and

equitable adoption process.

Ethical and legal dilemmas

Adoption, understood as a legal act, is a legal mechanism that

establishes a filial relationship between persons who are not related

by blood. This legal act not only confers on the adopted child all the

rights and obligations inherent to biological filiation, but also

guarantees the protection and welfare of the minor, in accordance

with the principles of the best interests of the child and human rights.

In this sense, adoption as a legal act implies a set of legal and

administrative procedures that seek to ensure that the process is fair,

transparent and for the benefit of the adopted child. Adoption is,

therefore, a necessary tool to ensure that children who cannot be

raised by their biological parents have the opportunity to grow up in

a safe and loving environment (Jones, 2017, p. 20).

From a historical perspective, adoption has been used by different

societies as a tool to ensure continuity of lineage and inheritance. In

ancient Rome, for example, adoption was a formalized legal act that

allowed childless patricians to ensure the transmission of their

patrimony and name. This legal mechanism was regulated by the Law

of the Twelve Tables, which established the rules for adoption and

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guaranteed the rights of adoptees. This legal approach has evolved

over time, adapting to the needs and realities of modern societies.

Adoption in Rome not only served to maintain family lineage, but was

also used as a political tool to form strategic alliances (Jones, 2017, p.

7).

In the current situation, adoption is regulated by a series of legal

norms aimed at protecting the rights of all those involved, especially

the child. In Ecuador, the Childhood and Adolescence Law establishes

the legal framework for adoption and defines adoption as a legal act

aimed at securing a suitable permanent family for a child (National

Assembly, 2014). The Code establishes requirements and procedures

for adoptions and ensures that adopters meet suitability standards

and that the process is carried out with the best interests of the child

in mind. These regulations are essential to ensure that the adoption

process is conducted in an ethical manner and that the rights of the

adopted child are respected.

Adoption as a legal act also includes a series of administrative and

judicial procedures designed to guarantee the legality and legitimacy

of the adoption. Transparency of the process. In Ecuador, the

adoption process begins with an administrative stage that evaluates

the suitability of the adoptee. This evaluation includes a review of

personal, economic and social background, as well as the

performance of psychosocial studies (Asamblea Nacional, 2014).

Once the adoptee is determined to be suitable, the process moves to

the judicial stage, where a family judge must approve the adoption

and make the appropriate decision.

An important aspect of adoption as a legal act is the consent of the

biological parents. This consent must be free, informed and voluntary,

and must be given before a competent authority. The law establishes

that the biological parents have the right to receive all necessary

information about the adoption process and its implications before

making a decision. In addition, Ecuadorian law protects the right of

birth parents to revoke their consent within certain timeframes and

under certain conditions, thus ensuring that their decision is final and

not influenced by external pressures (Coulibaly, 2015, p. 16). This

procedure ensures that the consent is genuine and that the rights of

the biological parents are respected.

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Another important aspect is the integration of the adopted child into

the adoptive family. This integration includes not only the transfer of

legal rights and responsibilities, but also the social and emotional

recognition of the child as a formal member of the adoptive family.

Keating (2009) points out that adoption should be seen not only as a

legal act, but also as a process of forging emotional bonds and

building lasting family relationships. In this sense, the Adoption Law

aims to facilitate this integration by providing adoptive families with

support and follow-up to ensure the child's well-being. Successful

integration is fundamental for the emotional and psychological

development of adopted children.

Intercountry adoptions add even more complexity to the legal

process. Intercountry adoption is regulated by international treaties

such as the Hague Convention on Protection of Children and

Cooperation in Respect of Intercountry Adoption. The Convention

aims to ensure that cross-border adoptions are carried out in the best

interests of the child and with respect for his or her rights. his or her

fundamental rights (Bohorquez & Ronald, 2015, p. 18). These

agreements establish specific procedures and requirements for

international adoptions, such as proof of suitability of the adoptee and

approval by the central authorities of the countries involved.

In the case of Ecuador, international adoption is regulated by the

Childhood and Adolescence Law and international treaties ratified by

the country. This legal framework ensures that international adoptions

are carried out in an ethical and transparent manner, protects

children's rights and guarantees that adopters comply with the

established requirements (Dieta Nacional, 2014). Ecuadorian

authorities should work with authorities in the adoptees' countries of

origin to ensure that this process is carried out in accordance with

international standards. This cooperation is essential to prevent child

trafficking and ensure that the adoption process is safe and legal.

Adoption as a legal act also faces particular challenges and dilemmas,

especially in the context of new reproductive technologies. Hollinger

(2018) argues that advances in technologies such as in vitro

fertilization and surrogacy raise new legal and ethical issues with

respect to adoption. These technologies make it possible to create a

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biological bond between the adoptive parents and the adopted child.

This is something that would not otherwise exist and can complicate

the legal adoption process and raise questions about the definition of

parentage and parentage. It is important that adoption laws adapt to

these technological advances to ensure that all legal and ethical issues

are considered.

Adoption in Ecuador is regulated by the Childhood and Adolescence

Law and the Civil Code. Ecuadorian law requires adopters to undergo

a rigorous evaluation to ensure that they can provide a safe and loving

environment. This includes a thorough evaluation of their financial,

social and emotional capacity to care for their child. In addition, the

law establishes specific adoption procedures, such as the need to

obtain the consent of the birth parents and the consent of a family

judge (National Assembly, 2014). These regulations are essential to

ensure that the adoption process is fair and that the rights of all

involved are protected.

Adoption also involves the transfer of legal rights and obligations

from the adopted child to the adoptive family. According to Sellinger

(2016), this process includes amending the child's birth certificate to

reflect the new relationship and transferring all legal rights and

responsibilities associated with parenthood. This process is intended

to ensure that adopted children have the same rights and protections

as biological children, including inheritance rights and access to

health care and education. The transfer of rights is an important part

of the adoption process, as it ensures that the child is fully integrated

into the adoptive family.

The implementation of the legal institution in Ecuador

The implementation of the legal institution of adoption in Ecuador has

been a complex process that has required the adaptation of legal

norms and the creation of appropriate administrative and judicial

procedures. Adoption, as a mechanism to ensure the welfare of

children and guarantee them a safe and affective family environment,

has evolved significantly in the country. This implementation process

has involved not only the adaptation of national laws to international

human rights standards, but also the creation of an administrative

system that guarantees transparency and fairness in adoption

procedures.

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In Ecuador, it is mainly regulated by the Childhood and Adolescence

Code. This code establishes a set of rules and procedures that seek

to ensure that the adoption process is transparent and in the best

interest of the child. According to the regulations, adopters must

meet a series of strict requirements to be considered suitable. These

requirements include psychological, economic and social

assessments that ensure that adopters can provide a safe and stable

environment for the child (Espinosa, 2016, p. 19). The suitability

assessment is a very important step in the adoption process, as it

seeks to ensure that only people who can provide a suitable

environment for the child are approved as adopters.

The adoption process in Ecuador also involves a series of judicial

procedures that seek to guarantee the legality and transparency of

the process. Once the adoptive parents are deemed suitable, the case

moves to the judicial stage, where a family judge reviews all

documentation and evaluates the case. The judge must ensure that

all procedures have been followed correctly and that the adoption is

in the best interest of the child. This judicial review is essential to

ensure that the process is fair and that the rights of all parties involved

are respected (Martinez, 2017, p. 18). The role of the judge is

determinant in the adoption process, as his or her final decision

determines whether the adoption proceeds.

A fundamental aspect of the implementation of adoption in Ecuador

is the consent of the biological parents. The law establishes that this

consent must be free, informed and given before a competent

authority. This means that the birth parents must fully understand the

implications of the adoption and must not be coerced in any way. In

addition, they have the right to revoke their consent within a certain

period of time if they feel that their decision was not made in full

knowledge of the facts. This procedure seeks to protect the rights of

birth parents and ensure that their consent is genuine (Ortega, 2018,

p. 21). Informed consent is an essential safeguard to protect the rights

of birth parents in the adoption process.

The implementation of adoption has also faced significant challenges,

especially with regard to intercountry adoption. International

adoption is regulated by international treaties and conventions that

seek to ensure that these processes are carried out in an ethical and

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transparent manner. In Ecuador, international adoptions are overseen

by the Central Adoption Authority, which works in collaboration with

accredited adoption agencies in other countries. This approach seeks

to ensure that international adoptions are conducted in the best

interests of the child and that the rights of all parties involved are

respected (González, 2019, p. 18).

Training and follow-up of adopters are other important aspects of

adoption implementation in Ecuador. Adoption agencies and social

workers play an important role in this process, providing support and

guidance to adoptive families. This follow-up is essential to ensure

that adoptive families can handle challenges that may arise and that

the child is properly integrated into his or her new family environment.

According to Rodriguez (2015), training and follow-up are essential

for the long-term success of adoptions and to ensure that the adopted

child receives the necessary support for his or her emotional and

psychological development.

Adoption in Ecuador has also evolved to include specific provisions

on the adoption of children with special needs. These provisions seek

to ensure that children with disabilities or medical needs receive

appropriate care and attention. Adoption agencies and social workers

must work closely with adoptive families to ensure that they are

prepared to handle the special needs of the adopted child.

Implementation of these provisions is essential to ensure that all

children, regardless of their needs, have the opportunity to grow up

in a safe and nurturing environment (Lopez, 2018, p. 29).

In terms of legislation, the Childhood and Adolescence Code is the

main legal framework regulating adoption in Ecuador. This code has

been adapted and updated to reflect international human rights

standards and to ensure that the adoption process is fair and

transparent. In addition, the code establishes specific procedures for

international adoption, ensuring that international treaties and

conventions ratified by Ecuador are respected (Paredes, 2016, p. 26).

Constantly evolving legislation is essential to adapt to changing

needs and ensure that the rights of children and adoptive families are

protected.

The implementation of adoption in Ecuador also includes the creation

of support programs for adoptive families, which provide resources

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and assistance to families during the adoption process and after the

child has been integrated into the home. The goal is to ensure that

adoptive families have the necessary support to handle challenges

that may arise and to ensure that the adopted child receives adequate

care and attention. According to Perez (2017), these support

programs are essential for the long-term success of adoptions and to

promote the well-being of adopted children.

Collaboration between national authorities and international

organizations is becoming imperative for the successful

implementation of adoption in Ecuador. Adoption agencies and

children's rights organizations work closely with Ecuadorian

authorities to ensure that the adoption process is conducted in an

ethical and transparent manner. This collaboration includes training

social workers, monitoring adoption processes, and promoting

children's rights in all aspects of the a doption process (Quiroz, 2018,

p. 21). International cooperation is critical to ensure that best practices

are implemented throughout the adoption system.

Analysis of the Effectiveness of the Current Legal Framework in

Ecuador

The current legal framework for adoption in Ecuador is mainly

regulated by the Childhood and Adolescence Code, which

establishes regulations and procedures to ensure that children

without families receive adequate care in a safe and affective

environment. However, despite the legal provisions, several

limitations and challenges have been identified in the effective

implementation of these regulations. One of the main problems is the

lack of clarity and specificity in the laws on prenatal adoption, which

creates a regulatory vacuum and generates legal uncertainty for both

adopters and expectant mothers.

Article 163 of the Childhood and Adolescence Code explicitly

prohibits the adoption of unborn children, reflecting a conservative

and restrictive stance towards this practice. This prohibition, while

intended to protect the rights of the nasciturus and prevent possible

abuse, also limits the options available to expectant mothers and

prospective adoptive parents (Asamblea Nacional, 2014). The

absence of a clear legal framework for prenatal adoption creates

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uncertainty and may deter families from considering this option, even

in situations where it could be in the best interest of the unborn child.

In addition, the adoption process in Ecuador faces administrative and

bureaucratic challenges that can significantly delay the placement of

children in adoptive homes. Espinosa (2016) notes that the suitability

assessment of adopters, although complicated, is often a lengthy and

complicated process that can demotivate potential families. This

process includes psychological, economic, and social assessments to

ensure that adopters can provide a suitable environment for the child.

However, a lack of resources and trained staff at adoption agencies

can lead to delays in these evaluations, negatively affecting the

children waiting to be adopted.

Judicial review of adoption cases is also an essential aspect of the

legal framework that seeks to guarantee the transparency and legality

of the process. Martinez (2017) highlights the importance of the role

of the family judge in the review and approval of adoption cases,

ensuring that all parties involved understand and comply with the

established regulations. However, the workload in the courts and the

possible lack of specialization in adoption issues may result in judicial

decisions that do not always fully consider the best interests of the

child.

International cooperation in adoptions, although regulated by treaties

and conventions such as the Hague Convention, faces challenges in

its practical implementation. Gonzalez (2019) indicates that

international adoptions require effective coordination between the

central authorities of the countries involved, which is sometimes

complicated by differences in regulations and legal procedures. This

cooperation is vital to prevent child trafficking and ensure that

intercountry adoptions are carried out ethically and legally.

Although the current legal framework in Ecuador provides a solid

basis for adoption regulation, there are areas that require significant

improvement to ensure its effectiveness. The lack of specific

regulations on prenatal adoption, administrative and bureaucratic

challenges, and the need for greater specialization and resources in

the judicial system are areas that need to be addressed. The review

and reform of these laws and procedures can contribute to a more

efficient, fair and child-centered adoption system.

Reconciling rights: Prenatal adoption and legislation in Ecuador

Revista Científica Interdisciplinaria Investigación y Saberes , / 2024/ , Vol. 14, No. 3

Ethical and legal challenges in prenatal adoption

Prenatal adoption presents a number of complex ethical and legal

challenges that must be carefully addressed to protect the rights and

interests of all parties involved. From an ethical standpoint, one of the

main challenges is to ensure that expectant mothers give their

consent in a free and informed manner, without coercion or undue

pressure. The autonomy of the mother and her right to make

decisions about her body and her pregnancy must be respected,

while protecting the well-being of the fetus.

One of the most critical issues is the question of informed consent. It

is essential that expectant mothers fully understand the implications

of relinquishing their child's rights prior to birth. Berliner (2014)

suggests that the complexity of the medical and legal procedures

involved in prenatal adoption can make it difficult for mothers to make

truly informed decisions. In addition, there is a risk that women in

vulnerable situations may be coerced or manipulated into

relinquishing their children, raising serious ethical concerns about the

validity of their consent.

From a legal perspective, it faces a significant regulatory vacuum. The

lack of specific regulation can lead to contradictory interpretations

and considerable legal uncertainty. Chapple and Abramsky (1994)

argue that the absence of clear rules can result in the unprotected

rights of pregnant mothers and fetuses. This legal uncertainty not only

affects the parties involved, but can also lead to abuse and

exploitation, especially in contexts where pregnant women are in

situations of economic or social vulnerability.

The welfare of the fetus is another ethical aspect that must be

considered. Humber and Almeder (2013) emphasize that the fetus,

although unborn, has interests that must be protected. Prenatal

adoption should ensure that all necessary measures are taken to

protect the health and welfare of the fetus during pregnancy. This

includes the provision of adequate medical care and protection

against any form of exploitation or abuse. The lack of clear regulations

on how to protect the interests of the fetus can lead to situations

where its welfare is not adequately considered in the adoption

process.