Family Law Reform in Twentieth-Century Chile and Latin America

In 1998, a controversial reform abolished the discrimination against illegitimate children that had been a fundamental tenet of Chilean civil law since its nineteenth- century codification. The reform, which enhanced rights to material support and inheritance for the 40 to 50 percent of children born each year to unmarried parents, sparked heated debate among different political sectors: right and left, conservative and progressive Catholics, feminists, and human rights reformers. It represented the culmination of a century of legal deliberation among Chilean jurists who had long proven reluctant to expand legal definitions of family and the rights accorded “non-normative” but widespread kinship forms. Reforms similar to the Chilean one had been enacted elsewhere in the hemisphere: in Mexico in the 1920s, in Argentina, Bolivia, and Guatemala in the 1940s, and in Brazil in the 1980s. Indeed, the Chilean reform can be read within a broader hemispheric narrative of legal change, albeit one exhibiting different chronologies in different national contexts. In this narrative, twentieth-century Latin American states have gradually broadened definitions of kinship and accorded increased rights to categories of kin (including extramarital children, adoptive children, and consensual partners) who historically faced discrimination, when not a total lack of legal recognition. This paper explores the Chilean reform within this context. It seeks to plot the evolution of family law in relation to the wider political economy, tracing how legal constructions of kinship have been shaped by three historical developments in twentieth-century Latin America: first, the emergence of a social welfare apparatus in the mid twentieth century; second, the heightened resonance of invocations of “equality before the law” in the context of late twentieth-century democratization; and finally, the increased importance of kin-based networks in the face of contracting social safety nets under contemporary neoliberalism.