Current Situation of Homoparental Adoption in Latin America: A Bioethical Problem of Discrimination, Rights and Social Justice

Discrimination-Exclusion of Same-Sex Couples

The LGBTI community has suffered systematically discrimination, not only by society but also by the State particularly in matters of health and other fundamental rights like the freedom of having a family and the possibility of adoption as individual or as couple. Sexual orientation is one of the most frequent factors of discrimination and violence in addition to ethnicity, sex, age and socioeconomic status, not only in Mexico but also in the rest of Latin America [16].

Gilbert Hottois, philosopher bioethicist, affirms that discrimination is to distinguish, differentiate with more or less serious practical consequences and based on unjustifiable criteria, and that the criteria for discrimination are unjustifiable either for logical and objective reasons or for moral reasons [17]. The prohibition of homoparental adoption in Latin America is a form of discrimination based mainly in moral criteria as we explained earlier.

From a sociological perspective, discrimination is understood as a type of social relation in which a certain group of people are stigmatized and devalued, resulting in acts of contempt and abuse that because of their constant and repeated installation become harmful to the lives of the people who conforms it. Taking as a point of departure some particular feature of these groups to denigrate or exclude them in access to certain goods or interests [18]. Exclusion is one of the extreme consequences of discrimination.

From a bioethical perspective nothing justifies the discriminatory behavior in the prohibition of homoparental adoption, since it is a form of restriction that impairs the exercise of universal rights and those established in the different constitutions of Latin-American countries and the world. It also ignores what the Universal Declaration on Bioethics and Human Rights of UNESCO states: “No individual or group should be submitted for any reason, in violation of human dignity, human rights and fundamental freedoms, discrimination or stigmatization” [19].

The problem of discrimination in Latin America against the LGBTI community is lower than in some countries of Sub-Saharan Africa due to the rise of the fundamentalist evangelical churches and the Middle East where Islam is practiced and homosexuality is not only pursued, but is penalized by death due to sharia (Islamic law) as in Iran, Mauritania, Nigeria (northern area), Pakistan, Saudi Arabia, Sudan, Yemen and Afghanistan [20].

In Mexico, social perception about the union between same-sex couples and homoparental adoption was analyzed in the National Survey on Discrimination in 2010, made by the National Council of Discrimination Prevention, in its results on sexual diversity was found that 7 out of 10 people over 40 disagree with allowing couples of lesbian women to adopt children. 6 out of 10 between 12 and 39 years have the same opinion. The population in Mexico shows more tolerance for adoption by lesbian women than by gay men couples. 8 out of 10 over 50 years say they disagree that gay male couples are allowed to adopt boys and girls. 7 out of 10 between the ages of 30 and 49 say the same thing [21].

Parametría, a firm that carries out strategic research and market analysis in Mexico held in its parametric chart Mexicans Divided on the Rights of the Homosexuals, carried out in 2013, that 70% of the population disagrees with the adoption of children by same-sex couples and 51% say that the union between men and women is the only one that must be recognized in society [22]. Mexico, is the second country of the Organization of American States with greater violence towards the LGBTI community after Brazil according to the statistical record of the Inter-American Commission of Human Rights between 2013 and 2014 there were 86 attacks in Mexico; 76 of them, homicides [23]. Honduras has also suffered hate crimes against the LGBTI community, reporting between 2009 and 2012, 186 complaints of deaths; most of these crimes have not been punished [24].

Some Latin American countries suffered in the past laws that criminalized homosexuality, for example Nicaragua, the only country that considered it as a crime until March 2008 when the penal code was revoked, repealing article 204 to make it legal to be homosexual. Likewise, in Cuba, homosexuality was pursued for decades, nowadays it is no longer punished and in recent years has sought to recognize the rights of homosexual people and penalize homophobia [25].

In Chile, the civil union between people of the same sex was approved on October 22, 2015, but this excludes the possibility of homoparental adoption, which is why it is currently sought to approve equal marriage to homosexual couples. At this moment, homoparental adoption is under discussion and legislation. It is important to say that it was until 2004 that civil divorce was legalized in Chile. In the surveys on tolerance and non-discrimination carried out by the Ideas Foundation and the Department of Sociology of the Faculty of Social Sciences of the University of Chile measurements of high homophobia rates were observed, although comparing the 1996 survey to the 2002, it can be noticed a progressive transformation to a greater tolerance towards the LGBTI community. The 2006 World Values Survey also reported high rates of rejection of non- heterosexual people and practices [26].

The exclusion of homosexual couples in the adoption process is mainly associated from a bioethical perspective with the problem of discrimination; it was born from the idea that children may suffer moral and psychological damage when adopted by same-sex couples. Moreover, it is associated with human dignity, which has as its central axis the basic capacity that we all have to elaborate our project of life and self-determination as Lizbeth Sagols affirms in Interfaz bioética, dignity is the very foundation of The Universal Declaration of Human Rights when states that “Every man is born free and worthy”, that is, every human being has the right to self-determination, and is not a mean to serve the ends of others, because he was born as an indeterminate being, “open” and free [27]. The violation of the dignity of the LGBTI community not only permeates the legal sphere, but also health. The World Health Organization considered homosexuality as a disease until May 17 of 1990 when it was removed from the International Classification of Diseases [28]. Is urgent the presence of bioethics in the discussion of homoparental adoption and also in health policy-making, so public institutions and society are aware of the risks and prevent the violation of human rights, and overall promote the depathologization of homosexuality.

Social Justice and the Adoption of a Child

The prohibition of homoparental adoption is not only a problem of human dignity, discrimination and exclusion as stated in the previous section; it is also a problem of social justice. We must consider that children left in the care of the State have the right to be adopted, and the opportunity to be in a family, which can provide decent housing, food (sufficient, nutritious and with quality), access to health, education and an adequate standard of living. They also have the right to be loved and understood, basic aspects that are given during the upbringing of wanted children, regardless of whether their parents are heterosexual or homosexual or if the children are genetic or adopted. Both, rights and emotional issues, are minimums for healthy development of children and guarantee their best interest as set out in the Convention on the Rights of Children in the articles 18, 19, 21, 23, 24, 27 and 28, drawn up by the United Nations, since September of 1990 [29]. If the child’s well-being is excluded from the discussion, it would only focus on the rights of adults. Social justice is associated with the promotion of well-being and the effort to promote it, based on the physical, psychological and social factors affecting children without a family.

Powers and Faden, philosophers at the Kennedy Institute of Ethics at Georgetown University argue that addressing social justice requires talking about wellness and its dimensions (health, personal safety, reasoning, respect, union and self-determination). Each of these dimensions has an independent moral meaning and those with a special moral urgency matter in social justice because they are of central interest to all. These dimensions offer different lenses through which the justice of political structures, social practices and institutions can be evaluated [30].

The prohibition of homoparental adoption reduces opportunities for children, which in itself is low because most people do not want to adopt but rather to conceive of their own, and now is more feasible with the use of reproductive technologies. Same-sex couples may prefer (if they have access to them) a genetic child and not an adopted child. Another aspect that diminishes the possibility of being adopted is the age of the child, in general, couples prefer to adopt children under 5 years or babies, and also they have to face complex and slow procedures to carry out the adoption.

It is essential to have a dialogue between the predominant moral views (liberal and conservative) about the prohibition of homoparental adoption not only in terms of rights but also inequity for children and gay couples. It should also be mentioned that nothing will guarantee that adoptive parents will truly love their adoptive children and that there is a possibility that their desire to adopt is simply the realization of a family ideal.

Bioethics Principles and Homoparental Adoption

It is urgent to include bioethics in the discussion of homoparental adoption in Latin America. The debate has to move toward a secular and bioethical perspective, free of dogmas and religious influences that far from helping harm the public discussion and their decisions, misinforming the population, creating aversion towards the LGBTI community. We need an open dialogue between the different moral visions; center the discussion in secular principles and values so the dialogue is ethical, and public speech and legislation is not delayed. Secular bioethics seeks unity in plurality on the basis of universal human rights. Secular bioethics is inclusive. Likewise, diversity, multiculturalism and democracy are essential elements of contemporary societies. Inclusion of minorities, non-discrimination and social justice must be ensured by the State. Everyone has the right to join in civil marriage, have a family and if the individual wishes, adopt without distinguishing whether or not is in civil union or if is heterosexual.

The marriage of same-sex couples and homoparental adoption, remain very controversial in Latin America due to the strong influence of the conservative stance on social thinking. One of the most important tasks of secular bioethics is to generate an open and tolerant dialogue between the different. We need an informed public debate, and the active participation of legislators and citizens in the resolution of these controversies.

The prohibition of homoparental adoption generates a message of social intolerance. We need a tolerant attitude which involves the recognition and respect of the differences inherent in human nature, diversity in all its aspects, in the sexual, cultural, religious, political and social. Voltaire maintains that tolerance has never caused a civil war, unlike intolerance that has covered the land with massacres [31].

Western bioethics is based on four basic ethical principles broadly developed by James Childress and Tom Beauchamp. The adoption of parentless children is directly related with one of these principles: non-maleficence (called the principle of principles) because it ensures no harm; children from the time they are abandoned by their biological parents are affected in emotional, physical, social, educational and economic health. One of the rules of non-maleficence is not to deprive others of the goods of life [32]. Children, in addition to abandonment, suffer deep deficiencies, sometimes mistreatment and discrimination within charitable or governmental institutions that will take care of them until they are of legal age if they are not adopted. When leaving these institutions they may have shortcomings in the development of psychosocial and educational capacities, this could limit them to fend for them-selves and face the world.

Is not sufficient to appeal to the principle of non- maleficence in the discussion of homoparental adoption, we will also include the principles of dignity, integrity and vulnerability proposed by Peter K, et al. in La mundialización de la ética. These principles offer a way of reasoning by which we can expect to overcome some of the dilemmas, crises and challenges we face today. Kemp proposes dignity as a universal principle of understanding the value of the human being and maintains that to this principle we must embody the one of integrity. Integrity means literally that we must not touch, damage, alter, but we must respect and protect, and this can be achieved by incorporating the child into an environment where there is a desire to ensure his or her well-being and provide the means for them to thrive. Integrity, adds something to dignity, because it also refers to what constitutes a totality, coherence. The principle of vulnerability is one of the most important in the debate about homoparental adoption because it expresses care by considering the fragility of an intact wholeness that can be ruined. In this sense, not only the children to adopt are vulnerable, but also those who want to adopt. Kemp also recognizes social vulnerability, which pertains to the fragility of human capacities to construct the human being as a coherent narrative and to distribute messages, goods and services. It also affirms that interventions can lead to isolation and fear, and the vulnerable being has the need to be helped and protected [33].

To end this analysis, I would like to include the right to privacy. This right is of special importance because it is part of the fundamental rights that refer to the personality and allows the development of a full life as the right to honor and dignity. In our lives there is an untouchable private space, the realm of intimacy, an area over which no external interference is possible; because it is information that does not affect or impact society or the rights of others, because it refers to strictly personal or family matters, or because the use or knowledge of that information does not benefit or is not useful to society, and it can be the origin or cause of discriminatory actions against the individual, which would be in an absolute state of defenselessness [34]. When trying to adopt, same-sex couples or individuals could appeal to the right of privacy without being enforced to disclose intimate information like the biological sex they had when they were born, their sexual orientation, or the submission of a civil marriage contract in order to carry it out the adoption. Information of an intimate nature should be protected by the State, especially in Latin-American countries, because violence and discrimination against the LGBTI community is frequently experienced by them.