Chilean Constitutional Tribunal upholds parental rights

Santiago de Chile (19 July 2021) – The Chilean Constitutional Tribunal has handed down a key decision in Latin America upholding parental rights. After more than six years in the Chilean Congress, a comprehensive children’s rights bill originally submitted by former President Michelle Bachelet (now the High Commissioner for Human Rights at the United Nations) was passed. ADF International worked directly with local allies who represented lawmakers and successfully challenged three key provisions of the bill that would have undermined the fundamental and prior right of parents to choose the kind of education that their children shall receive.

“The state should not interfere with parent-child relationships. We welcome the Chilean Constitutional Tribunal’s ruling, which sets a strong precedent for the protection of parental rights in Latin America. A majority of judges confirmed that the government cannot impose a worldview on religious and moral issues, nor interfere without grave reasons in the decision-making of parents when it comes to directing their children´s upbringing and the exercise of their rights. Parental rights are particularly protected by Chilean and international law,” said Tomás Henríquez, Director of Advocacy in Latin America and the Caribbean for ADF International. Henríquez presented these arguments in the public hearing held prior to the oral arguments at the Court.

Parental oversight and sexual education

At the Constitutional Tribunal, lawmakers from the House and Senate were represented by Mr. Cristóbal Aguilera and Mr. Jorge Barrera. In arguing for parental rights, ADF International worked with Comunidad y Justicia, a local allied organisation. The challenge focused on provisions prioritising children’s “progressive autonomy” over parental oversight and the demand that sexual education be “secular and non-sexist”, which would exclude the possibility of teaching the subject matter from different religious and moral perspectives

Following the successful challenge, the Tribunal declared all the challenged provisions to be unconstitutional: By a 6-4 ruling vote, the judges struck down provisions that would have infringed upon parental rights. By a 7-3 ruling, they decided that compulsory comprehensive sexuality education that is “secular and non-sexist” is unconstitutional, as it conflicts with parent’s rights. This ruling affirms Article 26 of the Universal Declaration of Human Rights, which states: “Parents have a prior right to choose the kind of education that shall be given to their children”, as well as the specific protection of the right of parents to have their children educated in accordance with their moral, philosophical and religious convictions, under the International Covenants on Human Rights, the American Convention on Human Rights, and the First Additional Protocol to the European Convention on Human Rights.

In their ruling, the judges highlight how the proposed provisions could lead to the substitution of the tutelary role of parents with that of the State. Through the granting of rights to minor children, the authority of their mother or father could be limited. The duty of parents to educate their children is thus reduced, by means of the State legally inserting itself into the parent-child bond. “In this way, not only is the power of the courts of justice (the State in its judicial aspect) being increased, but also the increasingly visible hand of the State’s administrative apparatus.” 

The ruling also states that: “The imposition of a ‘secular and non-sexist’ educational orientation means excluding other value dimensions that parents, by themselves and through the educational establishments they choose for their children, wish to promote formatively. The challenged [provision], contrary to what might be thought, does not seek the delivery of a pluralistic education, with greater content or diversity on the part of educational establishments.”