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.
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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.
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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."