Sun 6 Jun, 2004 09:03 am
Chile: High Court Discriminates Against Lesbian Mother
(Santiago, June 2, 2004) - The Chilean Supreme Court has discriminated against a lesbian mother in denying her custody of her daughters on the basis of her sexual orientation, Human Rights Watch said today.
"The court deprived this mother of custody of her children only because she refused to hide her lesbian relationship from them," said José Miguel Vivanco, executive director of the Americas division of Human Rights Watch. "Lesbians should not be forced to choose between their sexuality and motherhood."
Karen Atala, a judge from the town of Los Andes, had been awarded custody of her three daughters by an appeal court. Her former husband appealed, arguing that the court had wrongfully put Atala's rights before those of her children. Accepting the appeal by 3 votes to 2, a Supreme Court panel on Monday held that Atala's open lesbian relationship disqualified her from the right to custody that separated mothers in Chile enjoy unless barred by exceptional circumstances. The decision is final, and she has no other avenue of appeal.
The panel considered that the children's emotional and sexual development could be harmed by the absence of a father in the home and "his replacement by another person of the female gender." It also expressed concern that Atala's children could suffer from discrimination and rejection since "their exceptional family situation is significantly different from that of their classmates and neighborhood peers." The justices also criticized the lower court for "a serious fault or abuse" because it chose not to uphold "the preferential right of the children to live and grow up in a normally structured and socially reputable family, according to the proper traditional model."
The type of appeal used in this case is known in Chile as a recurso de queja (complaint appeal). For the appeal to be successful, the appellant must establish that the sentencing court committed a serious fault or abuse. This invalidates the sentence and makes the judges responsible for it liable to disciplinary action.
"To add insult to injury, the Supreme Court is telling us that the lower court did wrong even though it resolved this issue on solid legal argument and principle," said Vivanco.
The two dissenting justices stressed that the sentencing judges had proceeded correctly. They argued that Atala's sexual orientation was not a ground for depriving her of the custody she would normally enjoy as a separated mother under Chilean law. Denying her custody would impose on her daughters as well as her "an unnamed punishment, outside the law as well as discriminatory"
The Atala case has stimulated debate in Chile about the right of gays and lesbians to express their sexual orientation without prejudice or discrimination. Human Rights Watch in May published an article and a letter in the prominent Chilean newspaper, El Mercurio, urging the Supreme Court to study recent jurisprudence of the European Court of Human Rights condemning discrimination on the basis of sexual orientation.
Article 26 of the International Covenant on Civil and Political Rights prohibits discrimination based on "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." In 1994 the Human Rights Committee - the U.N. expert body charged with interpreting the Covenant - ruled that the reference to "sex" in the treaty should be interpreted as including sexual orientation. The Convention on the Rights of the Child requires states to "take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members."
Sodomy was decriminalized in Chile in 1999, but prejudice against gays and lesbians is still rife.
Source: Human Rights Watch.
Like the United States, Chile's court does not rely on common sense, the mothers love for the child or scientific data. It simply relies on the prejudices of the judges.
I agree with you. We have a lesbian couple as friends and their two children are being raised in a normal way, and there are no indications that their children have mental problems or whatever the Highcourt in Chile thinks the consequences will be.
An orphan is better off with gay parents than no parents at all.
Isn't the choice of being gay also the choice of not ever having children?
No. There are many options available for adults today who want children.
Next week, I am going to the wedding of a lesbian couple that has children. I don't know if the children are adopted or not, and it doesn't much matter.
The children are very excited about the wedding. Giving this family legal recognition is without a doubt a very good thing for these kids.
One: GLBT is genetic not choice.
Two: All living things reproduce. Humans are capable of stating this as opposed to other animals, insects and plants.
Three: The choice to reproduce and/or adopt is a choice for all, not just heterosexuals, or married heterosexuals.
I am not sure if I would allow gay couples to adopt children - I am totally for their right to be married, but I am not sure about adoption. Note: I am really NOT SURE, I am not saying that I am against it.
However, taking children away from their biological parents is complete nonsense.
Of course, when there is no abusing or anything.
disqualified her from the right to custody that separated mothers in Chile enjoy unless barred by exceptional circumstances.
Should I point out that there is another issue of sexual discrimination at work here? The fact that most cultures don't value the rights of fathers is rarely discussed. To me it is just as much of an issue.
What would happen if the father in the case was homosexual (as well as the mother)?
Ebrown_p, if the parent had been a gay male, he would have been treated very badly, even in a dangerously harmful way. There is far too much emphasis on one gender in cases like this.
Sam, appreciated your post--each point is well taken.
Wouldn't it be great if ALL parents were "qualified?"
How do you feel about single people adopting children, especially knowing how difficult it can be for a single parent to balance carrier and family?
What do you think a GLBT couple would do to harm a child? No GLBT person I have met wants to "convert" others to their way of life, this includes children. As GLBT is genetic adopted children, not being the biological offspring of GLBT parents have no possibility of passing acquiring genes for GLBT. They may however grow up with respect for the great diversity displayed by humanity.
Even in this country the GLBT population is denigrated. The terms "fag", "queer", "dyke" are not used as compliment by most of the population.
Isn't the choice of being gay also the choice of not ever having children?
The lesbian couple I told about had their two children the natural way, with the use of one sperm donor for both the children (so they do share the same father, though not the same mother for the lesbian couple decided each to have one child).
as I said Sam, I am just not sure. I am not saying that I would actually propose a law against it.
Not sure how to explane it - first of all, I think the most natural thing is for child to grow up with his or her biological parents.
Second on that list is growing up in loving family with mother and father.
Simply, I consider that most natural thing.
I am not saying being homosexual is not natural in negative way. I think that in positive way if you know what I mean - but still not really natural. Once again - thinking that in most positive way.
For example, I work a lot with blind people. It's actually stupid to even mention that they should have all rights and that they are normal members of our society. But, you can't actually say that being blind is natural condition. Again - refering to it in positive way.
So, I am not considering homosexuals immoral, wrong or anything. Just I am not considering homosexuality completely natural thing. And I don't actually think GLBT couple would harm child - even if that child would become homosexual - as I said, I don't think being homosexual is disease or something terribly wrong.
But I do think that it's more natural for child to have mother and father - if possible of course. Not to mention that we are far far away from utopian society where kids that have two mothers or two fathers will not have problems with other kids.
Single parenthood is something different. Because it happened and it was not forced to happen.
And to get back to my example - in most societies kids will not tease or do any harrasment to a child that has only mother or only father.
Children raised with love and respect are the most secure, emotionally balanced children regardless of parentage. I'm gald that this is being openly discussed, but I wonder why it has taken so long to address this non-issue?
But I do think that it's more natural for child to have mother and father - if possible of course.
I do think that this depends on the mentality in a society, not whether the parents are a gay couple or not. I do think that, concerning mental problems, these problems are created because, still, gay couples and children with gay parents aren't really accepted in this world. So instead of pleading for a return to a more 'natural' environment to protect the mental condition of these children, I think we should do the opposite and work to a mentality change in our society.
actually I agree with you - but, as I said, I think we are far far away from society without those problems.
And, as of "this depends on the mentality in a society" - you are also right, but problem is that mentality in 99,99% of societies (if not all 100%) is not positive on that issue.
So, basically, I think that good start of that work or fight is to work and fight for right of GLBT couples to get married (in USA, and in Netherlands, and in Croatia, and everywhere), and when this fight is really won, well, then we can include "third persons". Children can't choose for themselves will they or won't they be a part of that fight, so let's try to change a societies as much as we can before putting children inside the "fight".
I agree. My point was, MyOwnUsername, that we though must not keep the thought that mentality will not change, and the situation will be forever the same.
you know - it's your choice to fight for gay/lesbian rights, and it's my choice to do it - and it's our choice to keep up with insults, verbal or possibly even physical attacks and everything that is possible and not to mind them at all. It's our choice.
So, let's keep our "army" filled only with "soldiers" that actually choosed to be in it.