ARGENTINA: The ‘Final Battle’ for Gay and Lesbian Rights

By Marcela Valente Reprint | | Print |

Marcela Valente

BUENOS AIRES, Aug 26 2005 (IPS) - By drawing the media spotlight to five-year-old twins Lucas and Julia and their two “daddies”, the Argentine gay and lesbian community is gearing up to fight for a bill in Congress that would not only legalise same-sex civil unions, but grant these couples the inheritance and adoption rights normally limited to marriage.

By drawing the media spotlight to five-year-old twins Lucas and Julia and their two “daddies”, the Argentine gay and lesbian community is gearing up to fight for the passage of a bill in Congress that would not only legalise same-sex civil unions, but grant these couples the inheritance and adoption rights normally limited to marriage.

The bill will be introduced in the Argentine Congress in September. If it is passed into law, Argentina will become the first country in Latin America to legally recognise homosexual couples nationwide.

Same-sex civil unions are currently authorised in the city of Buenos Aires, but these partnerships do not include the right for one spouse to automatically inherit from the other, nor do they permit adopting children as a couple.

The civil union bill, which is backed by numerous jurists, is considered to be more progressive than the same-sex marriage law adopted in Spain last June. Instead of merely expanding the legal concept of marriage to include same-sex couples, the proposed legislation would establish a new, more open institution that some heterosexual couples may choose to opt for as well.

The marriage law currently in force in Argentina contains over 300 articles regulating this legal institution, while the civil union draft law contains less than 160, because it has been designed as an institution that more fully respects the right of every couple to voluntarily adopt its own decisions, explained Marcelo Suntheim, secretary of the Argentine Homosexual Community (CHA).

For example, he noted, “In a civil union, adultery doesn’t exist, because faithfulness is not an obligation.” In order to dissolve the union, all that is required is for one of the partners to declare their wish to do so to the civil registry.

In order to gauge the public’s reaction to the bill soon to be discussed in Congress, the CHA convinced Martín Farach and Andrew Colton, a gay couple, to appear before the media with their five-year-old twins, Lucas and Julia.

“We’re just a regular, boring family like any other,” maintained Farach, an Argentine who moved abroad with his family after the military coup led by General Juan Carlos Onganía in 1966.

Farach met Colton, who is from the United States, 19 years ago. They got married in Canada, and divide their time between living in the United States and Argentina. They are now thinking of settling in Buenos Aires permanently, however, because life “has become unbearable” in the United States since George W. Bush arrived at the White House, they said.

They became fathers five years ago with the help of a female friend, who was impregnated with sperm provided by one of them.

“Our families have to be made more visible, because otherwise we will just be engaging in abstract discussions,” said Suntheim.

He stressed that there are hundreds of gay and lesbian couples who have been raising children together for many years in Argentina, but the issue has been kept relatively hidden until now.

The strategy of presenting the Farach-Colton family to the media, and therefore to the public, was aimed at highlighting “family diversity” and raising awareness before the bill is submitted to Congress.

There are many lesbian couples who are raising children born to one of the partners during a prior heterosexual relationship. Other lesbian couples turn to donated sperm and artificial insemination as a means of having a baby together.

At the same time, Argentine law allows single men and women to adopt children, and the authorities have even permitted adoption by individuals who are members of a same-sex couple who have not attempted to hide this fact.

“It’s not that we can’t have children. The problem is that these children don’t have the same rights as others. If the legal parent dies, the children could end up in an orphanage, even though they have another parent,” stressed Suntheim.

Same-sex couples also confront inequality when one of them dies. It is almost impossible for the surviving partner to collect the pension of his or her deceased “spouse”, and only on rare occasions does the law recognise same-sex partners as automatic heirs to the estate of the other member of the couple, as is the case with legally married couples in Argentina.

The civil union draft law seeks to fill this legal void, and even offers alternatives. It contemplates the right to collect a deceased partner’s pension, and with regard to inheritance, couples can either choose to have the surviving partner automatically declared the sole heir, or opt for a prior mutual agreement on the disposition of the estate of the deceased spouse.

Suntheim believes that even many heterosexual couples will choose this more open form of legal union, with fewer rules and regulations than conventional marriage.

In the 1990s, the efforts of the Argentine gay and lesbian community focused on fighting discrimination, but today they are working to demand full respect for their civil rights.

Their first victory came in 2003, with the legalisation of same-sex civil unions in Buenos Aires, the first and still the only city in Latin America to grant this right.

Around 350 same-sex couples have officially entered into civil unions since this municipal regulation was approved on May 20, 2003, but these couples do not have the right to adopt children or to automatically inherit from a deceased “spouse”, since matters like these can only be addressed by federal law.

In October 2004, in preparation for the coming debate on the same-sex civil union bill, psychologist and CHA health issues coordinator Jorge Raíces Montero presented the Congress with a book on the subject of same-sex adoption, with contributions from 24 specialists in fields ranging from psychoanalysis to family law to gender studies.

At the time of the book’s release, Raíces Montero told IPS that there was overwhelming evidence that children raised by same-sex couples were “just as well-balanced psychologically as children in any traditional family.”

While all children have certain needs that are met by functions which society has classified as “maternal” and “paternal”, these functions are not necessarily tied to any given gender or sexual orientation, and both roles can in fact be fulfilled by the same person, or shared between two people of the same sex, he explained.

After the controversy sparked by the release of Raíces Montero’s book last year and the media campaign focusing on the Farach-Colton family this year, the CHA is preparing for the final battle: the adoption of a same-sex civil union law that would be in force throughout the country and include full rights to inheritance and adoption.

The association is expecting a repeat of the heated debate unleashed by the authorisation of same-sex civil unions in Buenos Aires, including the fierce opposition put forward by conservative right-wing groups and the Catholic Church.

A preview of what is to come was provided by the media coverage of the Farach-Colton family. The conservative daily newspaper La Nación not only published a profile of the family, but also quoted experts who stressed that what is important is the fulfilment of maternal and paternal functions, and not the gender of the person fulfilling them, thus tacitly endorsing adoption by same-sex couples.

The civil union bill was drafted by Judge Graciela Medina, who also drew up the initiative adopted by the city of Buenos Aires. The CHA has asked a dozen jurists to study and revise the bill, and the final text is almost ready. “We know it is going to be challenged, so we want it to be solid,” said Suntheim.