RIGHTS-CHILE: Supreme Court Is Last Hope for Lesbian Mother

By IPS Correspondents Reprint | | Print |

Gustavo González

SANTIAGO, Apr 20 2004 (IPS) - Chile’s Supreme Court is due to decide next month whether a lesbian mother has the right to raise her daughters in the home she created with another woman after separating from her husband.

The custody battle between Karen Atala and her ex-husband Jaime López has a special ingredient: she is a judge and he is a lawyer in the Chilean court system, which will set what could be a historic precedent for the rights of sexual minorities in this South American nation of 16 million.

”We hope the Supreme Court will not give in to the blackmail from the conservative sectors and, in line with international law, will not discriminate against the mother because of the sexual option she has expressed,” Ximena Zavala, director of the Women’s Institute Foundation, one of the many organisations that is closely following the case, told IPS.

Atala, 40, is a judge in the Tribunal de Garantía in the city of Los Andes (77 kms northeast of Santiago) where she moved in February 2003 with her partner, 42-year-old historian Emma de Ramón.

Their relationship began in Temuco (670 kms south of the capital) in June 2002, three months after Atala separated from López, 39, a lawyer who works in the Public Defender’s Office in that city.

Atala and López married in 1993. Their conflict-ridden marriage led them, in late 2000, to seek counselling, which continued for over a year. They have three daughters, aged nine, seven and four. Atala also has an 18-year-old son from her first marriage.

The therapist helped Atala realise that she is a lesbian, and urged her to assume her sexual identity, which she had been suppressing since childhood.

The three girls stayed with their mother after the separation, until the father went to court in November 2002 when he found out that de Ramón was living with Atala and his daughters.

The women moved to Los Andes with the girls. But in May 2003, a judge granted temporary custody to López, and his daughters returned to Temuco.

Atala’s visiting rights only allowed her to see them twice a month.

In October, a court ruled in Atala’s favour. Her ex-husband filed an appeal, and the case went to the Appeals Court in Temuco, which granted custody to the mother in a unanimous verdict on Mar. 30.

”The reports produced by diverse institutions conclude that the sexual option of the mother, lesbianism, does not in and of itself render her unfit. It has been found that homosexuality is within the realm of normal behaviour and is not a manifestation of any pathology that would disqualify” the mother, stated the ruling.

The Temuco court cited five academic studies. A Catholic University report states that children raised by lesbian mothers cannot be said to suffer psychological or social disadvantages or to present ”atypical” behaviours in terms of development of sexual identity.

The Pan-American Health Organisation (PAHO) attests that homosexuality is not a psychological disorder, and a report by the University of Chile Psychology Department says lesbianism is not a pathologoy, and that there are no differences between children raised by lesbians and those raised by heterosexual parents.

Psychologist Soledad Larraín, the author of the Psychology Department report, cited a January 2003 study by the American Psychological Association, which is based on a follow-up of 50 cases.

”It is conflicts in the family, not the structure of the family per se, that affect children,” said Larraín.

The National Women’s Service, a government agency, sent the court a report based on research by the National Family Commission, according to which the solidity of a family is based on ties of affection, more than blood relationships or traditional social conceptions.

Lastly, the Legal Medical Service rebutted one of López’s central arguments, after its psychologists found that none of the three girls showed ”alterations” of their sexual roles.

The Appeals court ruling also invoked the Convention on the Rights of the Child. In addition, it took into account the desires of the three girls who, although they said they wished their parents would get back together, clearly stated that they preferred to live with their mother.

But Atala’s legal victory was countered by her ex-husband’s lawyers, who brought a complaint before the Supreme Court against the Temuco judges, and filed for an injunction – a move that brought the custody battle to a halt until the Supreme Court issues its verdict on the complaint, which it is set to do in May.

Lorena Fries, an attorney with the Fundación La Morada, a local women’s group, told IPS that the complaint filed in the Supreme Court ”should lead to a sentence favourable to Karen Atala,” and said she fully agreed with the Temuco Appeals Court decision.

”Karen Atala’s fitness as a mother cannot be cast into doubt because of her sexual option, and that was made clear in the ruling,” said Fries.

”A woman’s sexual option is not a determining factor in whether she is fit to be a mother,” Mirta Ossandón, assistant director of the Women’s Action Programme, an independent women’s group, commented to IPS.

But Ximena Zavala added that the injunction granted by ”the Supreme Court worries us, because it could be a sign of disagreement with the previous verdicts.”

”We believe Karen Atala’s position is courageous and dignified, in the context of a society that despite everything is slowly opening up to tolerance and respect for differences,” added the director of the Women’s Institute Foundation.

”According to the information we have, in this lengthy legal process, Atala has been required to undergo tests that were not required of her former husband. This once more highlights the ongoing control exercised over the sexuality and reproductive health of women,” said Zavala.

”What is truly harmful for children is to live in a home where violence persists as a form of relating to each other, when double standards and a contrast between values and daily practices are constantly perceived in the family,” she added.

”What can preserve a healthy family setting for children is transparency in relationships, mutual respect, and the parents’ commitment to their children. The parents’ sex life is their own private business,” said the activist.

If the Supreme Court ruling is unfavourable to Atala, the Movement of Homosexual Liberation and Integration will take the case to the United Nations and the Inter-American Court on Human Rights.