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- Was there a boy: the punishment for substituting children in the hospital may increase
Was there a boy: the punishment for substituting children in the hospital may increase
In Yakutia, investigators exhumed a newborn who died in a maternity hospital in 2008 three days after birth. 17 years later, Daria Luzina, the baby's mother, suddenly found out that her child could have been replaced. In the near future, the biological material seized during the exhumation will be sent for genetic examination, which should show the presence or absence of kinship between mother and child. Izvestia analyzed this and other cases of child substitution and identified a loophole in the legislation — it is impossible to bring to criminal responsibility for such crimes because the statute of limitations is too low. The State Duma told Izvestia that they were ready to study the statistics of cases of child substitution and, if necessary, work out the issue of amending legislation.
Inconsistencies in the medical record
In Yakutia, the exhumation of a newborn girl who died in the maternity hospital at the central district hospital of the village of Khandyga in 2008 took place. The girl's mother, Daria Luzina, was expecting a boy at the time — a series of ultrasounds during pregnancy showed that the child would be male.
The birth took place by caesarean section, and the doctors told Daria, who had recovered from anesthesia, that a girl had been born with numerous pathologies, so she was unlikely to survive. On the third day, the baby died, and 17 years later, her mother suddenly found out that this child could have been unrelated to her, but the real one was alive.
As Izvestia wrote, a series of events prompted the mother of many children to this conclusion. In particular, she received documents from the hospital this year stating that the girl was born with numerous external deformities, but 17 years ago, Daria did not visually notice them during the delivery of the child and his funeral. There were also oddities in the archive log of the morgue — it says that the deceased child was a boy.
The woman could not get an official medical card — the maternity hospital refused to issue it. The investigators met Daria halfway and initiated a check on her request. On Friday, March 14, an exhumation took place in the Yakut village of Opalovka, where the girl is buried. The remains of the child were sent to Yakutsk for a genetic examination, which, as investigators and Daria expect, should establish or refute a biological relationship.
— Everything went well, the child's father was present at the procedure, everything was recorded on video, — said Daria. — The investigators have reported that a result will be available soon.
How children are confused in maternity hospitals
Izvestia studied the data on child substitution and found out that Daria Luzina's story is far from the only one, but such incidents are more often an accident than an intent.
In January 1987, at the Chelyabinsk Regional Perinatal Center, doctors confused newborns with similar surnames. Zoya Tuganova and Elvira Tuligenova were giving birth that day. Both girls did not grow up with their biological parents.
Zoya Tuganova established the fact of substitution only in 2017, the woman told Izvestia.
— I felt that the girl didn't look like us. But we raised her as our own," she said.
The woman found her alleged native daughter (Lucia) — DNA analysis showed a genetic relationship: the girl grew up in an orphanage, and then ended up in a foster family. Now she is an adult, and Lucia has three children.
— I filed a lawsuit in court, — Zoya Tuganova shared. — I demanded to collect 10 million rubles from the perinatal center, but in the end they paid me only 1 million. The court rejected our appeal.
In addition, in 2018, the court paid another 1 million rubles to Lucia and Zoya Tuganova's estranged daughter Katya.
Evgenia Solomatova, head of the legal department of the Regional Perinatal Center in Chelyabinsk, said she was not satisfied with the court's decision.
— In 1987, there was no liability for moral damage. It appeared only in 1991," she explained her position to Izvestia.
According to the victims' lawyer, Andrei Marchenko, all three women disagree with such a material assessment of the shocks they have experienced and are now preparing a complaint to the Constitutional Court.
Mistake or crime
According to Daria Luzina, she really wants those responsible for the possible substitution of her child to be punished. However, the criminal article on child substitution (Article 153 of the Criminal Code of the Russian Federation) is rarely used in practice — so much so that it can be called "dead," sources in law enforcement agencies told Izvestia.
The State Duma told Izvestia that they were ready to study the statistics of cases of child substitution and this particular case, and, if necessary, to work out the issue of amendments to the Criminal Code. The specifics of this category of cases are related to the fact that for many years the actual circumstances of the incident may be unknown to parents, recalled Daniil Bessarabov, first deputy chairman of the State Duma Committee on State Building and Legislation.
"But often circumstances that make parents wonder if they have one or the wrong child arise when the statute of limitations has already passed," the deputy said. — This excludes the possibility of bringing to criminal responsibility a person who intentionally substituted a child, based on selfish or other motives. And, of course, we should study whether it is necessary to increase the statute of limitations in such cases. Now he makes it possible for the guilty to escape responsibility, which is unfair to the biological parents of the child.
The MP noted that parents now have the opportunity to file claims in a civil lawsuit for compensation for moral damage, but there is no way to achieve a fair sentence for an intentional crime.
All the lawyers interviewed by Izvestia agreed on the assessment of the article on substitution as "dead".
To qualify substitution as a crime, intent is important, lawyer Anastasia Rastorgueva, leader of the legal department of the Skolkovo Women's Association, told Izvestia.
"According to the meaning of the article, the substitution must be made out of selfish or base motives," she said. — If there is no intent, then it is more likely a mistake, and a mistake is not a crime of substitution.
Self-serving motives consist in the desire to extract material benefits or get rid of material costs, Vladimir Voronin, managing partner of Altavista law firm, told Izvestia.
—And base motives should be considered intentions that contradict the requirements of public morality and morality, for example, envy, replacing a healthy child with a sick one, a girl with a boy, and vice versa," the lawyer said. — Over time, it is almost impossible to establish when such an intention arose, especially if it arose spontaneously when it comes to envy or other questionable feelings.
According to the lawyer, even if such a crime is detected and the person involved is identified, a person will be able to evade responsibility by explaining their act as trivial negligence, for example, when a midwife confused the tags of newborns after feeding them.
If there was no intent or it has not been proven, a person may be charged with negligence (Article 293 of the Criminal Code), Anastasia Rastorgueva noted. And this is a minor crime, the statute of limitations for which expires two years after its commission. In addition, by involving a person under this article, the investigation needs to prove that it was his negligence that led to such deplorable consequences.
"Therefore, the maximum that victims can expect in such cases is to recover compensation for moral damage from the medical institution whose employees made such a mistake," the lawyer believes.
The lawyer stressed that the maximum penalty for child substitution is five years, and the statute of limitations for prosecution does not exceed six years from the date of the crime.
Establishing the fact of child substitution does not guarantee the identification and prosecution of the culprit, Vladimir Voronin added. Witnesses of those events forget important nuances, maternity hospital staff change jobs or retire, medical documents are destroyed or lost over time for other reasons. All this leads to an irreparable loss of evidence.
According to the statistics of the Supreme Court, over the past eight years, the courts have been investigating crimes under art. 153 of the Criminal Code of the Russian Federation were not considered at all, the lawyer noted.
Over time, it becomes difficult to establish the actual circumstances of the crime, and the crime itself turns into an incident that cannot be proven due to the passage of time, says Anastasia Gorodova, a lawyer at the Monastyrsky, Zyuba, Stepanov and Partners Bar Association.
"But of course, with the development of DNA testing and digital archives, it has become easier to establish the fact of child substitution," she said. — Guilt in the commission of a crime should be proved by a sufficient body of evidence, rather than relying on a single piece of evidence, such as an expert opinion indicating the absence of family ties between parents and a child.
She also said that the criminal legislation of the CIS countries demonstrates almost similar approaches to criminalizing child substitution: the actions in question fall under a separate structure in the Criminal Code, while the severity of sanctions and the statute of limitations are almost identical to the Russian approach.
Since people sometimes find out about the facts of substitution decades after birth, it can be difficult to prove intent on the part of the perpetrator, confirmed Oksana Starozhiltseva, chairman of the Commission of the Russian Bar Associations for the protection of social and economic rights. For these reasons, there are few criminal cases in practice in cases such as child substitution. Families who have been subjected to such a test in their lives, as a rule, apply to the court in a civil procedure with claims for moral damages from hospitals where the substitution took place.
But there are certain difficulties here too. If the crime was committed a long time ago, then the hospital where the birth took place may not actually exist. Then there is the question of the legal successor. There are cases when the courts rejected the plaintiffs on this basis, because it turned out that there was no legal successor. Then it remains to sue the federal relevant departments — the Ministry of Health or the Ministry of Finance.
In addition to suing the court, a family that has learned about the fact of substitution has the right to apply to law enforcement agencies — the Investigative Committee and the Prosecutor's Office with a request to conduct an audit. This check may also affect medical documentation, as medical institutions will be required to provide it upon request.
In 2011, the Kopeysk city court in the Chelyabinsk region awarded 3 million rubles each to parents whose newborn children were confused due to a medical error. They were compensated by the maternity hospital, which caused the girls to end up in strange families. The substitution became known 12 years after the birth of the children.
The following people worked on the material: Elena Balayan, Natalia Grafchikova, Anna Muravyeva, Sofia Prokhorchuk, Valeria Mishina
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