Paving the way toward same-sex adoption in Colombia

Only months after gay men and lesbians in her native Colombia won their first legal rights — allowing common-law spouses to split and inherit property as straight people do — Ana Leiderman prepared to move home with her spouse, Verónica Botero. It was June 2007, and they had been living together in Germany for more than two years.

The backlash to the legal victory at home was swift and angry. “They are erasing the difference between men and women,” some powerful institutions said. Others had a warning: “It opens the door for them to be able to adopt.”

Leiderman was newly pregnant. It was not an ideal time for the family to make their return. If Leiderman’s baby — conceived through artificial insemination — were born in Germany, then Botero could legally adopt it. But if the child was born in Colombia? Leiderman didn’t know.

Yet their return couldn’t be avoided or delayed: Botero’s sponsorship to work at the local university was expiring, and they had to leave Germany. We’ll just manage, Leiderman thought. They always had.

Childhood friends in Medellín, the women had gone their separate ways after high school graduation — Leiderman to Germany, Botero to the United States — before reuniting on a European trip in 2004. They had sex one night, Leiderman’s first same-sex encounter, and within a year Botero had transferred to Germany. They registered a civil partnership in 2005.

It was Botero, having always identified as a lesbian, who paid attention to the details. She knew being a lesbian in Colombia meant being vulnerable and facing discrimination. In 2006 and 2007, 67 LGBT deaths — including 29 homicides, four in Medellín alone — were documented by Colombia Diversa, an advocacy group for LGBT people. The more openly gay people expressed their sexuality, the report noted, the more likely they were to suffer “aggressive acts.”

But Botero also knew what rights they were afforded. When a notary in Bogota tried to tell them that kind of union wasn’t possible, it was Botero who became exasperated and Leiderman who chuckled at her frustration.

They settled in Guarne, a town in the lush mountains near Medellín. There, as Leiderman’s belly grew and she socialized with other same-sex couples, she first found herself engaged in conversations about what rights her child would and wouldn’t have. “We’ll just manage” gave way to questions: Will our baby have access to Botero’s health insurance? Will Botero be able to make important medical decisions for our child? And above all: What will happen to our child if I die?

In February 2008, Leiderman gave birth to Raquel. For a while, simply being a mother took precedence over worrying about these questions. That March, a notary in Medellín granted Leiderman and Botero their Colombian civil union. Whereas the notary in Bogota had said no, this one, a gay man, had said yes — proof, to Leiderman, that “there is a law, but the application depends on who is on the other side of the desk.”

Ten months later, when they went to register Raquel’s birth, they were not so fortunate. There was no space on the birth certificate to identify a second mother. The old worries returned.

Leiderman began to research adoption rules online.

“It says the permanent partner or spouse can adopt the child of the other,” she told Botero. “It doesn’t say the partner or spouse has to be of the opposite gender, so we are going to try to do this. I want to try.”

Leiderman had their papers in order — including proof she and Botero had been in a civil union for longer than the stipulated minimum — but the social worker who received their file seemed perplexed. I’m so sorry, she told them, but the forms here say husband and wife. We’ll call you.

Nobody called. A month later, around Raquel’s first birthday, the official response came in a three-page letter from the Colombian Institute of Family Welfare (CIFW). It said Leiderman and Botero hadn’t been in a civil union long enough to be considered; their existence as a couple in Germany had been ignored. The letter, signed by a CIFW family advocate, went on to say that “without a doubt, Colombian society is not ready culturally or socially for situations like gay marriage or same-sex adoption.”

Leiderman fumed. To her, the letter was an insulting denial of service: “You do not have the right to adopt, you are not a family, and even though you have a lot of rights, this is not a right that you have.”

She scanned the letter and emailed it to Colombia Diversa. They told her she might have a case because the job of the CIFW is not to interpret the law, but to make sure children are safe.

“Let’s get a lawyer,” Leiderman said.

Germán Humberto Rincón Perfetti was recommended. From his very first conversation with Leiderman, Rincón Perfetti was direct. “Think about what you’re considering,” he advised her. “The chances of winning this case are very slim; the chances of losing are very high.”

Leiderman spoke with Botero, and the couple came back with questions. If they lost, could the CIFW take Raquel away from them? Rincón Perfetti assured them: to take Raquel from Leiderman, her biological mother, the CIFW would have to prove damage.

Leiderman and Botero thought about alternatives. They were surrounded by supportive family members and friends and they enjoyed a good income — by Colombian standards, they were wealthy. Emboldened by these realizations, Leiderman began to think a new thought: if any gay couple is going to attempt to change the law, why not us?

That summer, they girded for battle: they solicited letters of recommendation from friends and family, and they underwent a psychiatric assessment to establish they were good parents. At the assessment, Raquel — now a busy, chatty, 18-month-old toddler — broke a toy and coloured on the walls. The psychiatrist signed off: they were, she wrote, a normal family, and Raquel was a regular toddler.

In late October 2009, Rincón Perfetti submitted a tutela to the regional court in Rionegro on the family’s behalf. A tutela is a Colombian legal petition wherein a citizen who feels his or her human rights have been infringed seeks immediate help. Courts are required to rule on a tutela within 10 days of its submission.

On Nov 5, a hot and humid Thursday, Leiderman and Botero got the call while driving. The caller, a lawyer from the local court office, said the judge had found in the women’s favour; they could pick up the written verdict at the court office.

The call had been brief and the tone casual, but the news was precedent-setting. Leiderman was baffled: “We actually won.”

It didn’t take long before the news hit the media. Reporters across the country wanted to come to Leiderman and Botero’s home, to talk at length about what this meant for gay rights and for Colombia. They wanted to take pictures and videos of the lesbian mamas who had won this victory in a society supposedly, per the CIFW, “not ready culturally or socially for situations like gay marriage or same-sex adoption.”

Leiderman’s mind went to Raquel — her happy, busy toddler — but her hand went to her belly, to the new baby she was now carrying. She looked to Botero. We aren’t ready for this, she thought. Reporters at our home? Leiderman felt afraid.

The CIFW responded by filing an appeal to the Superior Tribunal of Antioquia. It argued that to process the adoption it would have to look first to the Colombian constitution and the law, in which, the CIFW claimed, marriage — and, by extension, a family — is clearly created by the union of “a man and a woman.” Leiderman and Botero continued to focus their legal arguments on children’s rights: specifically, Raquel’s right to protection should Leiderman fall ill or die.

Raquel’s rights prevailed. In a written decision dated Jan 20, 2010, the court in Antioquia upheld the verdict. Once more, Leiderman and Botero enjoyed a brief celebration before the media besieged them. Botero didn’t give interviews. Leiderman did a few but often asked that their names be kept private. If reporters asked for photos, Leiderman would give them only if they agreed to obscure the women’s faces. She and Botero wanted legal equality, not to have their personal lives disclosed in every newspaper.

Raquel’s adoption still did not go through.

By law, all tutela decisions must go to Colombia’s Constitutional Court for possible review. Within days of the Superior Tribunal’s decision, the Constitutional Court elected to review Leiderman and Botero’s case. The adoption would wait. Baby Ari was born in April 2010. He rolled over, he sat up, he crawled and walked and talked. The review was not swift.

Every week, Leiderman would check the court website for updates, watching their case go up and down the priority list, always being rescheduled. Later, she subscribed for email alerts to receive automatic updates. When rumours circulated that the case would be decided in one week and reporters began to call, Leiderman would tell them, “Don’t ruin my day, okay? Just call me when something happens.”

It took Chandler Burr, an American journalist who came to Colombia to adopt two orphaned boys, for Leiderman to shed her last vestiges of privacy and tackle Colombian homophobia in the public sphere.

In March 2011, the day before Burr was set to fly his new family of three home and after his adoption had been formalized, his boys were taken from him after he mentioned to a CIFW official that he was gay. The case made international news, and in December 2011, Burr’s sons were returned to him, a decision upheld months later by the Constitutional Court.

Leiderman watched with mixed emotions as Burr accomplished in nine months what she and Botero, after three years, had yet to achieve. The conservative backlash to Burr’s victory was swift and predictable, yet Leiderman could not help but be angrier than before — at the church, at the attorney general, at the years of her own life that had passed without any legal resolution, and now, at the homophobic comments spewed out across the country.

Juan Vicente Cordoba, one of the country’s leading bishops, told El Tiempo newspaper, “I do not know him [Burr] and I am not accusing him of anything, but one thing is clear and that is that he has homosexual tendencies and he is going to receive a boy of 10 years old and an adolescent of 13 and between them there won’t be a father-son relationship.”

They’re talking about us without knowing us, Leiderman thought.

If you are going to give a homosexual a son, Cordoba went on, “it has to be a person who has control over their tendencies, their instincts, and their passion very well internalized. It’s like if I had diabetes and they sent me to live in a candy store, it would be very difficult not to fall for it.”

For Leiderman, this was one aspersion too many. Leiderman talked to Botero about going public. They would do interviews, talk about their children and show they really were a family, even if legally they weren’t. Mauricio Albarracín, the director of Colombia Diversa, supported this decision, and Rincón Perfetti did, too. They had written documents advising how to get the press to speak concretely about the case, how to focus on Raquel’s rights. This was difficult when Raquel’s parents were an unidentified lesbian couple, known publicly in many cases simply as “mujer,” or “woman.”

In August 2012, Leiderman, Botero, Raquel and Ari appeared in The Washington Post and on NPR. “We have a really, really common life; very normal, non-interesting life,” Botero, who had only recently begun to give interviews alongside Leiderman, said on the radio. Photos showed them eating breakfast and going to the grocery store.

Talking about the normalcy of her family became a regular activity for Leiderman. She believed Colombia Diversa spoke mostly to the gay community, and she wanted more. The real change, she thought, after years of waiting for a day in court, might happen in the court of public opinion. After all, “there’s no law that can force people to respect us.”

On Aug 28, 2014, the Constitutional Court ruled six to three that Leiderman and Botero had been discriminated against and that sexual orientation cannot be the basis for refusing an adoption request when one of the partners is the child’s biological parent. But the court did not grant Botero’s adoption of Raquel or Ari outright, nor did it open the door for gay couples to adopt non-biological children. Faced with criticism that the court had fallen short, its president, Luis Ernesto Vargas, told reporters, “You can’t force society to take a giant leap.”

But Leiderman felt society had already moved forward of its own volition and was still moving. Their story made international headlines; local papers had written editorials in support of the family. The very same day the Constitutional Court ruled in their favour, a Colombian cabinet minister spoke on the radio about her own same-sex relationship with a fellow cabinet minister. And even though the Senate voted down a gay marriage bill in 2013, Colombian President Juan Manuel Santos had recently declared same-sex marriage “perfectly acceptable.”

“Whether this union is called marriage or not for me is secondary,” he said during a Google Hangout last May with El Tiempo during his successful reelection campaign. “For me, what is important is that they have their rights.”

Although Leiderman still doubts whether she’ll ever see a Colombian document declaring Botero to be Raquel and Ari’s legal mother, this worries her less.

As Leiderman changed people’s minds, she herself had changed. “Poco a poco” — little by little — Rincón Perfetti watched her “come out of the closet” to the Colombian people. She had been asked to join the board of Colombia Diversa. She had become, in Albarracín’s words, her own “powerful organization,” responsible for a “baby boom” of gay couples seeking help to do what Leiderman and Botero had done first.

Adoption rights had seemed almost too far ahead of the organization’s mission when Leiderman and Botero first approached Colombia Diversa in 2007; now, the Constitutional Court is reviewing more cases about legal guardianship claims, and advocates hope the results will steer the country toward complete equality.

“[Colombians] no longer talk about sexuality within the realms of psychology or reproductive rights,” Rincón Perfetti says, “but rather within human rights.”