Could A Win For LGBT Adoption Rights Kill Marriage Equality In Colombia?

A lesbian couple from Medellín is poised to win joint parental rights after a years-long legal battle. But the decision could plant the seed to undo court victories for marriage equality.

Courtesy of Ana Elisa Leiderman and Verónica Botero

Verónica Botero was thrilled to learn that she might be about to become a mother — because of a leak to one of Colombia’s leading newspapers. But the same report had bad news — she could become a mother at the expense of ever being a wife.

Botero is already raising two children in Medellín with her partner of eight years, Ana Leiderman, who gave birth to them both through artificial insemination. The couple has been in a years-long legal battle with Colombian authorities to get Botero recognized as their legal parent. They fought the case all the way to Colombia’s Constitutional Court, which took up the matter in 2010.

On Nov. 16, El Espectador published a story reporting on a leaked draft of the court’s ruling, written by Luis Guillermo Guerrero, a conservative judge who took over from liberal Juan Carlos Henao in 2012. To their relief, it suggested the court was preparing to rule in their favor.

The fact that a judge with Guerrero’s conservative reputation is planning to endorse a ruling in favor of LGBT family rights came as an encouraging surprise to LGBT rights advocates. But they won’t see it as a total win if the ruling is issued as El Espectador reports. The adoption ruling could be a Trojan horse — a decision that looks progressive on its face, but actually contains legal arguments that could set back LGBT rights in the fierce legal battle now unfolding over marriage equality in the country.

The adoption ruling as reported by El Espectador would establish a right for gays and lesbians to second-parent adoption. But it would also contain language saying that the Colombian constitution still reserves special protections for heterosexual couples because of their ability to reproduce. And that, activists fear, could be the basis for denying marriage equality when the court is forced to clearly rule on whether same-sex couples have full marriage rights, in separate cases currently making their way through the courts.

Those cases are currently tied up in lower court fights and point to Colombia’s confusing stance on marriage equality. Many same-sex couples were granted marriage licenses under a 2011 Constitutional Court ruling that held for the first time that gays and lesbians have family rights — but the ruling didn’t clearly say that meant couples could marry, so some judges have since granted licenses only to have another judge come along and annul them.

The adoption ruling would be the first major LGBT rights decision since Guerrero joined the court and offers clues about where the court might go when the question of these couples’ marriages reaches it. (Though the court made headlines in March when it ruled against authorities trying to reverse the adoption of two Colombian boys by the gay American author Chandler Burr, the legal questions in that case were about due process, not about LGBT family rights.)

Colombians won’t truly have a sense of where the court is headed until the ruling is out, and the timing of this decision is still unclear. But, Mauricio Albarracín — a lawyer for the LGBT rights group Colombia Diversa who is working on both the adoption and marriage litigation — said what they know so far is concerning.

“The devil is in the details,” he said.

Courtesy of Ana Elisa Leiderman and Verónica Botero

Botero and Leiderman met as students in fourth grade. Their lives took them to different continents — Leiderman, now 44, became a textile engineer and lived in the United States, and Botero, now 43, became a civil engineer and lived in Europe. When they reconnected and began their romance in 2004, Leiderman requested that her company, Addidas, transfer her to its headquarters in Germany. The two women entered a civil union under German law in Nuremburg in 2005.

In 2007, Leiderman became pregnant with their daughter, Raquel, through artificial insemination in a German clinic. The couple moved back to Colombia when Leiderman was just a few months pregnant, and their baby was born there.

That year the Colombian Constitutional Court ruled that “uniones maritales de hecho,” a kind of domestic partnership status created for heterosexual couples, must also be available to same-sex couples. Botero and Leiderman registered as such when they returned to the country.

The same court, however, had closed the door to joint adoption for same-sex couples in 2001. LGBT advocates were leery of bringing up family issues again because they had won a remarkable string of protections in the socially and politically conservative country — victories they credit to a careful, incremental strategy. Colombia Diversa, the main organization bringing strategic litigation, didn’t want to touch adoption or marriage.

“Marriage and adoption are the most sensitive subjects anywhere in the world,” said Germán Rincón-Perfetti, one of the group’s lawyers, in an interview last year. “That’s why, in Colombia Diversa, we did not want to get involved in these issues, but rather we wanted to advance other things.”

But external events forced their hands. A lawyer with no history of LGBT activism, Felipe Montoya Castro, initiated a marriage case over Colombia Diversa’s strong objections. (His suit was not on behalf of a particular couple, but rather a demand for a constitutional interpretation from the Constitutional Court.) And Leiderman and Botero were determined to get legal protections for their daughter.

“Sometimes, things happen and we want to plan for ‘what if’,” Liederman told BuzzFeed. “We wanted a legal relationship between my wife and the children.”

Courtesy of Ana Elisa Leiderman and Verónica Botero

The facts in Botero and Leiderman’s case helped make it easy for the courts to reopen the question of same-sex couples’ parental rights. Under the 2001 ruling, it was clear that a same-sex couple could not jointly adopt a child who was biologically unrelated to both of them. But the family codes regarding second-parent adoption — circumstances where one person already is the parent of the child — said nothing about the gender of the couple. The rules applied to “spouses” and “permanent partners,” not husbands and wives.

Rincón-Perfetti agreed to take their case as a private attorney even though Colombia Diversa declined to get involved. The couple was astonished when the local court ordered the agency in charge of adoptions to process their application in 2009, and even more surprised when a higher court agreed later that year. But the adoption officials kept stonewalling, so they took the case to the Constitutional Court in 2010, at which point Colombia Diversa decided to lend its weight to the case.

Meanwhile, the marriage case — which Colombia Diversa had joined by that time out of concern that other lawyers could screw up the case — was also pending before the high court. The fact that they arrived at the court around the same time may partly explain why Leiderman and Botero’s ruling has been so long in coming. One explosive family law case in this socially conservative country might have been enough for the court to spend its political capital on at a time, and the court couldn’t delay ruling on the marriage question for procedural reasons.

The marriage ruling was confusing and messy: It reversed earlier decisions that held that heterosexual couples were the only kind whose families are protected under the Colombian constitution. “Without a doubt, unions formed by same-sex couples have the status of a family” under Colombian law, the court wrote in its decision.

However, the court did not rule that same-sex couples immediately had the right to marry. Instead, it ordered the Colombian Congress to pass legislation that would give same-sex couples equal rights. If Congress failed to pass legislation — which is exactly what happened — the court would allow judges and notaries to start solemnizing same-sex unions, though it didn’t clearly state this meant they could marry. And that’s why that question is headed back to the high court: At least three judges have allowed couples to wed under this ruling, but these marriages are facing challenges in other courts by conservative activists.

Despite the strong assertion that the families of same-sex couples have legal protection, however, the court also said that the ability to reproduce entitled heterosexual couples a special status.

It was, as Colombia Diversa’s Albarracín said, a “Frankenstein decision.”

So alarm bells went off when Albarracín read the El Espectador report on the adoption case.

Although he was pleased that the draft adoption ruling reportedly stated that it is “unacceptable in light of constitutional requirements” to deny Botero her maternal rights, the ruling would also strongly endorse the notion that some rights were still reserved solely for heterosexual couples.

“While it is true that, in light of the Constitution, the heterosexual, monogamous family has a special protection on the part of the state, it is also true that the Constitution itself acknowledges, recognizes, and protects the diversity of family structures,” Judge Guerrero reportedly wrote.

The marriage case will hinge on just what “special protections” the court will decide the constitution reserves for the heterosexual, monogamous family. While it is a positive sign for LGBT advocates that the court is now ruling second-parent adoption isn’t one of them, they find the fact that the court’s new personnel wants to underscore that the families of LGBT people and heterosexuals are not completely equal very troubling.

When the court next rules on the marriage question, Albarracín explained, language in the adoption decision reserving a special status for straight couples could provide a basis for saying it is not discrimination to bar same-sex couples from marriage—their family rights are adequately protected by domestic partnerships.

“With this kind of language [in the adoption decision], you can open the door to differentiation in the future,” Albarracín said. “You have first-class families and second-class families.”

But if this is a Trojan horse — using a decision that has a progressive immediate impact to achieve a more lasting conservative goal — critics on the right aren’t so encouraged.

After the El Espectador story appeared, Colombian Cardinal Ruben Salazar issued a statement proclaiming: “The Catholic Church opposes entrusting children for adoption to couples made up of people of the same sex … It is necessary to protect, as a priority, the physical, psychological, and moral development of minors. That is an inescapable duty that the state institutions must undertake with responsibility and independence in the face of growing influence of gender ideology and pressure from some mass media and interest groups.”

Perhaps heeding Pope Francis’ gentler tone on same-sex relationships, Salazar added: “It is necessary to demonstrate that the Catholic Church in Colombia is deeply concerned that the legitimate rights of all citizens are recognized and protected without any discrimination. With motherly love, the Church welcomes all men and women … aware that, regardless of their orientation and even sexual behavior, everyone enjoys equal dignity before God and the State. ”

It’s still not certain when the court will issue its ruling in Botero and Leiderman’s case. And even if they win, it won’t entirely be the end of the process — all the court can order in this case is for the adoption agency to process their application.

“They could still find something wrong with us,” Leiderman said ruefully.

But the couple hasn’t put their life on hold. They had a second child in 2010, and Leiderman said they have built a very good life for the children despite their legal battle. They have a supportive school, pediatrician, and neighbors.

“We don’t need permission from anybody to be a family,” Leiderman said. “Things work. But … the ‘what if’ is what worries us.”

J. Lester Feder is a foreign correspondent for BuzzFeed and 2013 Alicia Patterson journalism fellow.

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