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Karen Atala v. Chile in the inter-American human rights system

Macarena Sáez

In 2004, the Chilean Supreme Court rescinded from judge Karen Atala custody of her minor children, decreeing that as a lesbian living with a same-sex partner, she was unfit to live with them. This ruling, a violation of Chilean law and international human rights law, revoked the custody of her daughters that she had won in previous trials in juvenile court and the corresponding appeals court. That same year, Atala filed a complaint with the Inter-American Commission on Human Rights against Chile. Midway through 2010, the Commission issued a Merits Report on the Atala case in which it set forth that the American Convention on Human Rights prohibited discrimination based on an individual’s sexual orientation. Given that Chile did not comply with the recommendations to repair the damage caused to Atala and her daughters, the Commission filed an application before the Inter-American Court of Human Rights against Chile, for which process is currently pending.

The formal justification put forth by the Supreme Court to revoke custody was that Atala had put her own interests before those of her daughters when she decided to live with a same-sex partner, and that the minor children should “live and develop in a normally structured family that is valued in the social milieu, in accordance with the appropriate, traditional model…”

The Supreme Court decision placed Chile in breach of the international obligations established in the American Convention on Human Rights by discriminating against Atala due to her sexual orientation. In accordance with the standard established by this ruling, under equal conditions, a person can be a mother and live with a heterosexual partner, but cannot be a mother and live with a same-sex partner. Motherhood and sexual orientation would be, therefore, incompatible, obliging lesbian mothers to live a permanent lie to keep their children, or live according to their sexual orientation and give up their children.

The Inter-American Court must now confirm the conclusions of the Commission with respect to whether sexual orientation is a category covered by the non-discrimination principle of the American Convention on Human Rights. We expect the Court will conclude that in this case, among other international human rights violations, Atala was discriminated against due to her sexual orientation and that her and her children’s right to privacy and to a family were violated. We expect, furthermore, that Chile will be ordered not only to repair the direct damage caused to the victims, but also to implement sufficient measures so that neither the Supreme Court of Chile nor any other government body can ever again discriminate based on a person’s sexual orientation.

The argument most commonly used to justify the Supreme Court ruling has been that the decision was based on the best interests of the children. This is an argument that does not logically follow that very same Supreme Court ruling, and which is based on the ignorance of this important principle of international law. The imposition of the best interests of the children as a central criterion in decisions involving minors has been a fundamental advance in international law and has greatly influenced legal thinking on a national level. However, this principle does not exist in an ethical vacuum that allows judges to make decisions based on their own ideas of what is right. International law has provided clear guidelines on how to apply the principle. The best interest of the child requires respect for family diversity, the privacy of the home, the belief that families should not be separated and that one should listen to minors while taking into account their age. All this was done in the custody trial that Atala won in the pertinent jurisdictions. In contrast, none of these elements were used by the Chilean Supreme Court when it overruled the case.

The damage that the Supreme Court decision had on Atala and her family is irreparable. The Inter-American Court, however, has the opportunity to condemn Chile for the Supreme Court’s violations of international law and order that the victims be compensated for this irreparable damage. The Inter-American Court also has the unique opportunity to deliver clear guidelines on the content of the right to equality in the region, by declaring emphatically that the American Convention values all types of families equally, and that sexual orientation is as irrelevant in determining child custody as are race, sex or any other social condition.

Macarena Sáez is a lawyer in Chile and Professor of Law at the American University Washington College of Law. She is also a member of Libertades Públicas A.G, a professional association of Chilean lawyers who defend freedom of expression and minority rights and participate in judicial proceedings and public debate.

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