La falta de regulación de la restitución de alimentos prenatales frente a la exclusión posterior de paternidad.

Abstract

In Ecuador, the right of pregnant women to maintenance is protected from conception and covers expenses related to pregnancy, childbirth, the postpartum period, and breastfeeding. Given the need to provide this support immediately, payment may be required from the alleged father, even though biological paternity has not yet been definitively established. This situation gives rise to the legal issue examined in this study: a man who paid prenatal maintenance may subsequently be excluded as the biological father through DNA testing. Although Ecuadorian law regulates pregnant women’s right to maintenance and compliance with this obligation, it does not expressly determine what happens to the amounts paid when such exclusion occurs. To examine this issue, the study draws on restitutionary institutions under Civil Law. The doctrine of undue payment is used solely as a point of reference because the maintenance payments were made while a legally enforceable obligation existed. Restitution is also distinguished from civil liability. The proposed mechanism is not intended to compensate for all possible harm suffered by the affected party, but rather to recover the amounts that the claimant can prove were paid, provided that the established requirements are met. For this reason, restitution would not be granted automatically following a negative DNA test result. In addition to proving the absence of biological paternity, the person seeking reimbursement must demonstrate bad faith on the part of the person who initiated the claim. Finally, it is proposed that this legal remedy be incorporated into the Code on Children and Adolescents and that the General Organic Code of Proceedings (COGEP) be amended so that the claim may be heard through summary proceedings, while retaining the ordinary time limits established for this type of procedure.