limited, stereotyped perception of the concept of family, which has no basis in the
Convention, since there is no specific model of family (the “traditional family”)169.
4.5.
Conclusion
146.
Bearing in mind all the foregoing considerations, this Court concludes that although
the Judgment of the Supreme Court and the provisional custody ruling sought to protect the
best interests of the girls M., V., and R., it was not demonstrated that the grounds stated in
the decisions were appropriate to achieve said purpose, since the Supreme Court of Justice
and the Juvenile Court of Villarrica did not prove in this specific case that Ms. Atala’s
cohabitation with her partner had a negative effect on the girls’ best interest (supra paras.
¡Error! No se encuentra el origen de la referencia., ¡Error! No se encuentra el
origen de la referencia. and ¡Error! No se encuentra el origen de la referencia.). On
the contrary they used abstract, stereotyped, and/or discriminating arguments to justify
their decisions (supra paras. ¡Error! No se encuentra el origen de la referencia.,
¡Error! No se encuentra el origen de la referencia., ¡Error! No se encuentra el
origen de la referencia., ¡Error! No se encuentra el origen de la referencia., ¡Error!
No se encuentra el origen de la referencia. and ¡Error! No se encuentra el origen de
la referencia.), for which reason said decisions constitute discriminatory treatment against
Ms. Atala. Therefore, the Court concludes that the State violated the right to equality
enshrined in Article 24, in conjunction with Article 1.1 of the American Convention, to the
detriment of Karen Atala Riffo.
5.
Discriminatory treatment against the girls M., V. and R.
Arguments of the parties
147. In relation to Article 19 of the American Convention170, the Commission argued that
“the Supreme Court violated the girls’ best interest […] in the absence of determinations
based on evidence and specific facts.”
148. The representatives argued that the judgment of the Supreme Court of Justice had
injured the child’s best interest “when it ignored the right of the girls M., V., and R. not to
be separated from their family.” They added that children could not be discriminated against
based on their parents’ status.
149. The State indicated that the alleged violations in relation to the three girls “were
refuted from the moment it was demonstrated that said judgment was not the result of
discrimination based on sexual orientation, but rather of the analysis of specific facts proven
in the custody trial.”
Considerations of the Court
150. The Court has already concluded that both the Judgment of the Supreme Court and
the decision of the Juvenile Court of Villarrica, regarding provisional custody, constituted
169
The Supreme Court of Justice of Mexico has stated that legal recognition of homoparental families, which
exist either through reproduction or adoption, does not disregard the child’s best interest. On the contrary, from
such recognition come a series of rights in favor of the child and duties for those who are his parents, since it is a
reality that such families exist and, therefore, must be protected by law: they are each as respectable as others Cf.
Supreme Court of Justice of Mexico, Action of Unconstitutionality A.I. 2/2010, August 16, 2010, para. 333.
170
Article 19 of the American Convention establishes that “Every minor child has the right to the measures of
protection required by his condition as a minor on the part of his family, society and the State.”
49