judgment on the right of homosexual couples to adopt minors, considered it relevant that
the petitioners did not empirically justify an alleged infringement of the child’s best interest
in cases of adoption by same-sex couples based on documents or scientific analysis. On the
contrary, the Supreme Court took into account existing studies on the impact of sexual
orientation on a child’s development, and considered that it was not possible to uphold the
general hypothesis that living with homosexual parents has a negative effect on children’s
development.145 Furthermore, the Supreme Court indicated that:
Heterosexuality does not guarantee that an adopted child will live in the best situation for his
development: this has nothing to do with heterosexuality-homosexuality. All types of families have
advantages and disadvantages and each family must be analyzed individually, not from a statistical point
146
.
of view
127. On the other hand, several judgments issued by international courts147 conclude that
in judicial decisions concerning the custody of minors, consideration of the parent’s behavior
is only admissible when there is specific evidence showing that the parent’s behavior has a
direct, negative impact on the child’s well-being and development. This seeks to ensure that
greater scrutiny is applied when the judicial decision concerns the right to equality of
population groups that are traditionally discriminated against, such as homosexuals (supra
para. 92 and ¡Error! No se encuentra el origen de la referencia.).
128. For their part, the experts Rodrigo Uprimny and Allison Jernow cited and provided a
number of scientific reports considered representative and authoritative in the field of social
sciences, to conclude that living with homosexual parents per se does not affect a child’s
emotional and psychological development. These studies agree that: i) the attitudes of
homosexual parents are equivalent to those of heterosexual parents; ii) the psychological
development and emotional well-being of girls or boys raised by gay fathers or lesbian
mothers are comparable to those of girls or boys raised by heterosexual parents; iii) sexual
orientation is irrelevant to the formation of affective bonds between children and their
parents; iv) the sexual orientation of the mother or father does not affect children’s
development in terms of gender and their sense of themselves as male or female, their
gender role, behavior and/ or sexual orientation, and v) the children of homosexual parents
are not more affected by social stigma than other children 148. Similarly, the expert Jernow
145
Cf. Supreme Court of Justice of Mexico, Action of Unconstitutionality A.I. 2/2010, August 16, 2010, para.
336.
146
Supreme Court of Justice of Mexico, Action of Unconstitutionality A.I. 2/2010, August 16, 2010, para. 338.
147
Cf. ECHR, Case of M. and C. v. Romania, (No. 29032/04). Judgment of September 27, 2011. Final,
December 27, 2011, para. 147, and Case of Palau-Martinez v. France (No. 64927/01), Judgment of December 16,
2003. Final, March 16, 2004, paras. 42, 43, where the European Court establishes that a judicial decision on the
handing over of the custody of minors to a state institution must not consider in abstracto the possible effects of a
specific condition of the parents, protected against discriminatory treatments, in the well-being of the child.
148
Cf. statement offered by expert Rodrigo Uprimny at the public hearing on August 23, 2011, referring to
the American Psychology Association, Council of Representatives, Policy Statement on Sexual Orientation, Parents,
& Children, adopted by the APA Council of Representatives July 28 / 30, 2004, which states that: “There is no
scientific evidence that a parent’s effectiveness is related to their sexual orientation: homosexual mothers and
fathers are as prone as heterosexual mothers and fathers to provide a healthy and favorable environment for their
children [and] […] science has proven that the adaptation, development, and psychological well-being of children is
not related to the sexual orientation of their parents, and that the children of homosexual parents have the same
probabilities
of
development
as
those
of
heterosexual
parents.”
Available
at:
http://www.apa.org/about/governance/council/policy/parenting.aspx (last visit February 19 2012)
Also see written statement offered by the expert Allison Jernow on September 16, 2011, mentioning the following
studies: R. McNair, D. Dempsey, S. Wise, A. Perlesz, Lesbian Parenting: Issues Strengths and Challenges, in: 63
Family Matters 40 (2002); A. Brewaeys, I. Ponjaert, E.V. Van Hall, S. Golombok, Donor insemination: child
development and family functioning in lesbian mother families, in: Human Reproduction Vol. 12, 1997, Page 1349
and 1350; Fiona Tasker, Susan Golombok, Adults Raised as Children in Lesbian Families, American Journal
43