Adoption by same couples


Claim of unconstitutionality against the articles 64, 66, 68 (partially accused) of the Law No. 1098 of 2006 “by means of which is issued the Code of Infancy and Adolescence” and the 1st article of the Law No. 54 of 1990 “by means of which are defined the marital unions and the patrimonial regime between permanent partners”. The plaintiffs proposed three charges against the accused dispositions: (i) first of all, they plead that they are contrary to the principle of equality, because those norms contemplate a lack of protection to the prevalent interest of the minor in situation of adoptability and a discrimination against the same sex couples; (ii) they alleged a relative legislative omission and (iii) they addressed the existence of an institutional predominant interpretation of the norm by the Colombian Institute of Family Welfare (“Instituto Colombiano de Bienestar Familiar” ICBF) and the General Procurator of the Nation, which ignores fundamental rights.

The Court analyzed the following topics: (i) the superior interest of the minor, and his or her right to have a family; (ii) the adoption by same sex couples, valuing the experience of comparative law and the scientific evidence available; (iii) the existence of relative res judicata in the charges for violation of the principle of equality and the right of the couples conformed by same sex partners to constitute a family and the (iv) moral suitability to adopt. The Court concluded that it is not admissible from a constitutional point of view to exclude from the processes of adoption the same sex couples, because they conform a family, the Chamber also considered that an exegetic interpretation in that way generated a protection deficit for the children and adolescents in a situation of abandonment, such thing unacknowledged the superior interest of the minor, represented by their right to have a family, in that sense the Court declared the constitutionality of the demanded norms, conditioning its interpretation to include also the same sex couples that conform a family.

Finally , the  Court  indicated that, like any adoption process, it must always be aimed at guaranteeing the best interests of the child and the restoration of their rights, "it will be the duty of the State to verify in each case whether the requirements established in the legal system and the suitability of the adoptive family, in such a way that it provides socio-economic stability and an environment of respect, love and well-being for the child."