Colombia legal challenge could set precedent on gay couples’ familial rights in Latin America

August 10, 2012

Theirs is a storybook romance, from the time they became friends in the fourth grade to a love affair that blossomed when they were in their late 30s.

Now in a legal union, Ana Leiderman and Veronica Botero have a young son and daughter. But they are not quite a family under the law. Leiderman, who gave birth after being artificially inseminated, has custody of the children. And Botero has virtually no rights, or legal responsibilities, concerning them.

To Leiderman and Botero, it is a case of discrimination that hurts them all. Their contention is being reviewed by Colombia’s highest court in a case that, if successful, would not only upend this conservative country’s social order but also have implications across Latin America, where gay rights advocates are demanding equal rights for same-sex couples.

“The case clearly plants the recognition of a family made up of two people of the same sex,” said Mauricio Albarracin, a lawyer with Diverse Colombia, a gay rights group that has advocated for the couple. “It’s no longer a discussion over protections for a couple but over the ties and rights of a nuclear family.”

In the United States, the debate over gay couples and their rights to be parents have been hot-button topics ahead of November’s election. But in many ways, it is in Latin America where gay communities are making some of the biggest strides.

Most prominently in big countries, such as Brazil and Mexico, gay rights advocates are using innovative legal strategies before courts with a progressive bent. That has led to a range of rulings that are giving gays rights that were once unthinkable in a traditionally conservative and Catholic region, including the right to adopt.

The developments have not been lost on American activists, who have faced obstacles such as voter-approved propositions blocking gay unions and a Virginia law that effectively permits adoption agencies to turn away prospective parents because of their sexual orientation. Nine U.S. states prohibit or restrict adoptions by gay people, and in 30 states, there is no mechanism to allow both partners in a same-sex union to adopt, according to two recent reports partly authored by gay rights groups.

“It is fascinating to watch the evolution in Latin America, because in many respects, there are countries that are eclipsing, quite quickly, the United States,” said Jennifer Chrisler, director of the Washington-based Family Equality Council, an advocacy group for gay families. “So I think it’s incredibly hopeful for those of us in the United States who are watching these trends.”

The most-watched development took place in Argentina in 2010, when the National Congress approved same-sex marriages and all the benefits that go with such unions, including the right to adopt. In Brazil, the highest court last year extended the rights enjoyed by heterosexual couples to same-sex unions, making adoption by gay couples possible in the region’s biggest country. The Supreme Court in Mexico upheld Mexico City’s landmark decisions to legalize same-sex marriages and permit adoption. Tiny Uruguay also permits same-sex couples to adopt.

Changes through the courts

Javier Corrales, an Amherst College professor who has closely studied the gay rights movement across several countries, said the region may be on the cusp of a revolution. But he described fierce pockets of resistance across the Americas, places where homophobia and violence are common.

Indeed, for every Argentina there is a Jamaica, where consensual sex between two men can result in a 10-year prison term and mobs beat and sometimes even kill gays. And aside from a few places where public support for gay rights is high, a majority of people in many countries oppose same-sex marriage, let alone adoption, polls show.

Facing stacked odds in the region, activists determined that the path toward obtaining rights was not to search out broad-based public support. Instead, they took advantage of the fact that several high courts in the region were increasingly independent and led by judges who view the status quo limiting the gay community as a violation of anti-discrimination laws and international norms, said Jose Miguel Vivanco, the Americas director of Human Rights Watch.

That is how advocates in Colombia made progress.

“The lesbian, gay, bisexual and transgender activists worked the political scene and they couldn’t, just couldn’t, get anywhere,” said Rodrigo Uprimny, director of DeJusticia, a Bogota think tank and rights group that has provided legal briefs supporting gay plaintiffs.

“They couldn’t even get minimal things, like rights to an inheritance,” said Uprimny, explaining that activists then turned to the courts. “It was all done through litigation, and it’s worked out real well.”

Although Colombia is a tradition-bound country, the Constitutional Court in 2007 ruled that same-sex couples could form a legal union.

Other rulings permitted gay couples access to pension benefits, alimony, inheritance and other rights. Then last year, the court ruled that gay unions constituted a family, opening a legal avenue for gay rights advocates to use in their fight for adoption rights.

Now, the court is mulling over Leiderman and Botero’s case.

“I never dreamed in my wildest dream that I would be in a case like this,” Leiderman, 43, a textile engineer, said of the suit, which began more than two years ago. “But when you are really committed, you go to whatever length is necessary.”

‘I want to be recognized’

Married in 2005 in Germany, where they were living at the time, Leiderman and Botero returned to this mountainous, picturesque city where they had grown up and began a family. Their children, Raquel and Ari, are now 4 and 2.

Although the couple’s legal union is recognized by Colombian law, Botero wouldn’t have rights to custody should Leiderman die. Should Botero die, her estate wouldn’t automatically be passed down to the children. She is not obligated to care for the children, and if she and Leiderman split, she would have no legal recourse to see them.

“I don’t have rights, and I do not have legal responsibilities,” said Botero, 42, a university professor and engineer. “I want to be recognized.”

The couple’s efforts to win rights — and those of other gay people who want to adopt — have generated a backlash.

Bishop Juan Vicente Cordoba, a Catholic Church official who has been the public face of the opposition in Colombia, warned that gay men might become sexually attracted to the children they adopt. Other activists have said that approving adoptions for gay people could destroy the Colombian family.

“Who is the child going to call ‘Mommy?’” said Jose Galat, rector of Gran Colombia University and a prominent Catholic activist who opposes adoptions by gay people. “And in a union between two lesbians, who is going to be the father?”

Leiderman and Botero said that in Medellin, they have never faced discrimination or felt uncomfortable. They said they live ordinary lives that revolve around demanding jobs and raising Raquel and Ari.

“For every flamboyant hairdresser, there are probably 10 families just like ours, that don’t look different, don’t sound any different,” Leiderman said. “I don’t have an “L” tattooed on my forehead.”

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