Colombia’s highest court denies children the right to a mother and a father
What’s at Stake:
- The right of children to be adopted
- The right of children to a mother and a father
- Protecting the best interests of the child
Every child has the right to a mother and a father, even those who are up for adoption. A wealth of research-based evidence shows that children do best, across a range of outcomes, with a mother and a father. But when it comes to adoption, adults’ wishes are often prioritized above the rights and best interests of children. In Colombia, the claim of one same-sex couple had the effect of embedding this unequal treatment in the country’s laws.
A female same-sex couple from Medellin, Colombia, filed for an adoption, which was denied by the courts. Diego Andrés Prada Vargas then presented a claim that the laws which denied the couple were unconstitutional and discriminated against them because of their sexual preference.
With Vargas’ constitutional challenge, the Constitutional Court of Colombia received opinions on the case from experts and NGOs. ADF International, in coordination with local Colombian allies and other organizations from the Latin American region, prepared several legal briefs for the case. These were presented before the court and discussed alongside a resolution project that had been prepared, which favoured same-sex couples having the “right” to adopt.
In February 2006, with a 4-4 tie, an ad hoc judge was assigned to review the case and deliver the court’s final resolution. Claiming that there is already jurisprudence on this issue from 2014, the judge upheld the constitutionality of the laws in question, namely articles 64, 66, and 60 of Law 1098 by which the “Children’s Code” was issued, and article 1 of Law 54 which defines the nature of civil unions. The court’s decision made it clear that same-sex couple adoptions can take place when one of the partners is the biological mother or father of the child. By its decision, the court overlooked children’s best interests and will deprive some children in Colombia from their inherent right to a mother and a father.
Our Role in the Case
ADF International filed a legal brief before the Constitutional Court of Colombia. It argued, based on international human rights treaties and the principle of the best interests of the child, that the “right” to adoption corresponds to the child, not the adults.