After two mothers separate, one of them struggles to see her daughter

There are days Millaray Arellano (62) went to the hairdresser. I wanted a radical change. But not for nothing. “After the fight I fought for my daughter, I feel like a warrior” , he admits. And this is how life goes today; with hair shaved on the sides, like a character from the Vikings series.

The beginning of the struggle he describes dates back to early 2018, when he separated from the biological mother of his daughter, now 10 years old. “The first two or three weeks after the separation, I would pick her up from school every day and also put her to sleep at night, because ever since she was little, she slept next to me. We did it because I had my office in the house where we lived. But in the fourth week, my ex sued me. He asked me for mediation. She told me that someone told her it was better to do things legally. He asked me for a million and a half in support. I did not accept because I could not pay this amount. I asked him to work too and that we split our daughter’s expenses 50/50. I also offered to look after the girl and come see her. But legally, I didn’t have the right to do so, because at the time I was born, the Marriage Equality Act didn’t yet exist. “That’s where a war started.”

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Millaray met his daughter’s mother about twenty years ago . They first met in the bar she created exclusively for women. Their love at first sight was immediate, so much so that three months later, they were symbolically married and then left to live in the United States. But while there, Millaray suffered an accident that left her unable to recover for months, and after that, they decided to return.

In 2010, they moved to Curicó, to a large house where Millaray began practicing holistic medicine therapies. He had been doing it for a while, but it wasn’t his main activity. After the accident, it became his livelihood.

Once settled, the idea of ​​being mothers began to haunt them. “My ex-partner had always wanted to be a mother, but I was unable to finance fertility treatment; I had lost a lot of money during my recovery,” he says. And he continues: “One day, I was doing one of my treatments, which I describe as magical, on a friend who loves me very much. It occurred to me to ask him to give me “a little bug.” Because my ex didn’t want to have a relationship with a man”

The friend agreed. So a few days later he went to their house, masturbated in the bathroom, gave them his sperm in a small bottle and left. Millaray then inserted it into her ex-partner’s vagina using a syringe. “It didn’t work the first time, we spent a year trying. But there was one day when I, who am half-witch, had an intuition. My ex didn’t really want to keep trying, because every time it didn’t work, he became depressed. But I told him this time it would be different. I called my friend, he came, left us the bottle of sperm and left. Then I lit incense, played music, we made love… I prepared everything for her to relax. I inseminated her, left her with her legs up for a little while and rested my forehead on her padding. I had a freezing feeling. That’s how our daughter arrived, in 2013. I was giving birth, I cut the cord,” she says.

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At that time, there was no marriage equality law yet. And therefore, although they gave her the last names of both, she was legally registered with only one mother.

Francisca Millán is a lawyer and partner at AML Defensa de Mujeres, and also a representative of Millaray. He explains that at the time of the birth of their daughter there was no legal possibility of generating parentage on the part of the two women and, therefore, its registration was carried out only recognizing the maternity of the surrogate mother which until then was obtained with the birth certificate. “This is what we call a ‘vacation’ in relation to a potential caregiver who, before the law, can only be a man,” he says.

Years later, when the civil union agreement was created, in 2015, the couple entered into this agreement in an effort to somehow safeguard their daughter’s assets. “I thought that with this I could insure my daughter, because if something happened to me, my affairs would be in the name of my ex, her biological mother. But the truth is that Civil union is of no use when it comes to filiation,” says Millaray. “I checked it out after a few years when ours didn’t work out and we split up.”

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Lawyer Francisca Millán reports that after their separation, the two women reached an agreement, approved by the family court, for a direct and regular relationship (what was previously called “visitation”) and a pension eating. “The law allows this to be regulated even if it is not a parent, as happens for example with grandparents. It is a voluntary agreement, but once signed it has legal implications because it is like signing a contract,” he says.

However, this agreement was only kept for about a year. After that, the biological mother began to obstruct the execution of the agreement. “In the middle of all this, she left with the girl to live in Santiago, with her parents. I traveled every time I had to see it, but several times I got there and they didn’t show it to me. I had to go to the police and leave the file. I couldn’t do anything but file a complaint, because legally she wasn’t my daughter and they could have charged me with kidnapping,” says Millaray.

But when the pandemic began, she saw the possibility of being with her daughter even more hindered, which generated distance in this bond. “At one point, one of the judges determined that she would have to pay 1 UTM every time she didn’t let me see her. There, I started to see her a little more, but the pandemic arrived and made everything more difficult. My daughter’s mother forced me to take the PCR test every time I went to see her. But the worst part was when one day the girl told me that I was going to kill her because she was very sociable and that exposed her to infections; She also told me that I had abandoned her or that if she saw me, she would no longer be able to see her other mother,” Millaray said.

Faced with the despair of this scenario, Millaray asked the biological father, that is to say her friend, to recognize her as his daughter. He thought that this way he could ensure a connection through him. However, this generated a successive spiral of legal efforts which culminated in a court decision annulling the direct and regular relationship agreement which directly involved the refusal of the visits initially agreed upon.

“The legal mother’s argument is that my client is no one, that she has no rights over the daughter and that, just as she decided to sign a direct and regular relationship agreement, she could now also eliminate this agreement because it is a decision that is hers alone as the sole mother of the minor. Basically, this takes advantage of the legal vacuum that existed before the Marriage Equality Act,” explains the lawyer.

According to the lawyer, the legal discussion they initiated in this case is that Millaray had the recognition of a bond with the girl, and that this bond only had a legal difference based on the arbitrariness of not recognizing the diversity of families. “Through the direct and regular relationship and the food that these women provided, an attempt was made to fill this void, but later the legal mother herself and her defense took advantage of this void to try to put an end to this link.

What is more serious in this case – continues the lawyer – is that the court reacted in a very simplistic way by saying that if the biological mother had reached an agreement, she could put an end to it. “The question here is: if this was a man, a father, would a court have reached such reasoning? Probably not, because it is absurd that, simply because one parent does not want their child to bond with the other parent, the child is refused. In this case, it is allowed because of the sexual configuration of this family,” he says.

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“My daughter is 10 years old, at 7 I stopped seeing her. She was a very happy girl,” says Millaray.

“We appealed to resume the visitation agreement, but the court rejected it, so we filed an appeal to the Supreme Court, which had more advanced reasoning on these issues, establishing that in the process it had been approved that the bond between the social mother and the daughter existed, that they were recognized by the parties themselves through the voluntary agreement and that, therefore, the simple fact of annulling it by the will of the legal mother was arbitrary discrimination and ignorance of the family configuration they had decided to create at the beginning,” explains Francisca Millán.

The court order was to reinstate that bond. “The problem is that we are talking about years in which this connection was broken due to legal proceedings, so we cannot expect a reconnection as if nothing had happened, because she is a girl, not a thing. This is why today we are defining the modalities according to which respect for the direct and regular relationship will be reestablished,” continues the lawyer.

“I feel guilty for bringing my daughter into the world to experience this. I also feel anger. It is not possible for justice to allow the rights of a boy or girl who wishes to be with his mother or father to be violated. Now the Supreme Court has ruled in my favor. He determined that the girl had the right to be with her mother, as she told me, because she was born into the nucleus of a family; determined that they cannot remove her from their affection because it violates her rights,” says Millaray. But he also admits to being afraid. “I haven’t seen the love of my life in a year and eight months and I don’t know what I’m going to find. I don’t know what they told him, what he thinks of me. I am with a psychologist who is helping me, because a lot of time has passed and the links have broken. The only thing I want is to go back to the time when we went for walks together in Vichuquén, to see her happy and for her to see me like that.