Colombia’s Courts Battle over Gay Adoption
Colombia’s National Constitutional Court will determine this week whether changes will be made to article 68 of the Adolesence and Infancy Code, allowing same-sex couples to adopt children. In January of 2015, magistrate judge Jorge Ivan Palacio put forth a 145-page document detailing the reasons why same-sex couples in Colombia should be allowed to adopt, and on January 27th, the high court took an initial vote on whether they would support Palacio’s measure. Though nine magistrate judges sit on the bench, the vote was a 4-4 split as one judge abstained from official duties for the time being. This division in the high court is reflective of societal-wide debates going on in Colombia about the rights of LGBT people in the country. They are part of the cultural clashes going on within a society with strong conservative religious foundations, but whose legislature is experiencing an increasingly
liberal ideological shift.
Palacio’s document lists a number of reasons, judicial, cultural, and scientific, why there should be no impediment to gay couples adopting children. Colombia’s constitution dictates that when this situation arises, one of eighteen lower-level associate judges serves as a tiebreaker. A tiebreaker judge will be selected later this week, but as it stands now, eleven of the eighteen have conservative records and would likely vote against the measure. Six are liberals who would vote for it, and one is unknown.
Palacio’s paper and the current debate comprise only the latest instance in an ongoing struggle between the government and Colombia’s LGBT community. But it has gained notoriety recently because it marks the first time that the ICBF, or Colombian Institute of Familial Wellbeing has come out in support of same-sex parenthood. The institution, which is responsible for the protection of minors in the legal system and is therefore heavily involved in adoption cases, shared with the court a report in which they consulted “various schools of psychology and social work. “ The study ultimately found no reason to believe that adopted children would be worse off with parents of the same gender.
The report showed a new face for the ICBF, which has previously come out explicitly against adoption for gay couples. In March of 2011, a top ICBF official barred a gay American man from taking two Colombian children whom he had legally adopted back to the United States. Ultimately the courts had to step in to allow the American journalist to leave the country with the boys. In August of 2014, the ICBF also rejected the adoption requests of a lesbian couple that had conceived children via in-vitro fertilization. The non-biological parent of the children wanted to formally adopt them, and was rejected. Once again, the high court had to step in and order ICBF to approve the adoption.
Although Colombia’s high court has sided historically with gay individuals on adoption matters before, it has always been on a case-by-case basis. The current debate represents the first significant sweeping, definitive changes on the issue — and that is what has some factions, including many religious leaders, concerned. In January of 2015, the leader of the Episcopal Church in Colombia, monsignor Luis Augusto Castro, officially joined the Catholic Church in opposing adoption rights for same-sex couples. In cases of same-sex adoption, he claims, “there is an infraction on the rights of the child. In both cases they are denied maternity or paternity.”
In many ways, this cultural battle between conservative forces like the church and the LGBT community in Colombia is microcosmic of the situation going on in most of Latin America. The region has been noted for its progressive policies with regards to gay marriage and adoption; Argentina was the first Latin American country to legalize same-sex marriage in 2010, and since then Uruguay, Brazil, Mexico, and Chile have all expanded rights for their gay citizens.
But these progressive legal measures seem to still exist within a fairly repressive religious culture. Especially in countries like Colombia, where the church has closer ties to the government, rights for LGBT citizens are more hard-fought, than in Argentina or Uruguay, where the populations are more secular.
Of the eighteen associate judges, for example, who have the potential to rule on Palacio’s legislation, one, Mauricio Uribe Blanco, is a priest and head of philosophy at one of the nation’s most conservative universities. Another, Martín Gonzalo Bermúdez is described as “very religious.”
Given these facts, and the division of the magistrate court, it is likely that Palacio’s measure will not pass, and that the Constitutional Court will not come out in favor of same-sex adoption. Still, Colombia has passed anti-discrimination laws, and civil union laws for same-sex couples, indicating incremental progress in LGBT rights. So if long-term trends are to be trusted, all indications are that LGBT Colombian couples will gain the right to adopt children in the near future.