24, in conjunction with Articles 19 and 1.1 of the American Convention, was violated in
detriment of the girls M., V., and R.
D.
Right to private life and right to family life
Arguments of the parties
156. With respect to the alleged violation of Article 11175 of the American Convention, the
Commission argued that “the right to a private life encompasses all spheres of the intimate
realm and autonomy of an individual, including his or her personality, identity, decisions
over his or her sexual life, personal and family relations[, given that] sexual orientation
constitutes a fundamental component of an individual’s private life.” It held that “the State’s
interference in the private life of Karen Atala was arbitrary, since the custody decision was
based on discriminatory prejudices driven by her sexual orientation [….] and it also
arbitrarily interfered in her autonomy to make decisions on her personal life based on said
orientation. The latter […since] in the absence of objective reasons, the Supreme Court of
Justice, based on the expression of her sexual orientation, deprived her of the custody of
her daughters and a life in common with them, a fundamental aspect of her life plan.”
157. For their part, the representatives argued that “the interference is arbitrary because
the only justification is the expression of the mother’s sexual orientation, which is part of
her personal identity, an essential characteristic of all individuals, which has no bearing
whatsoever on the daughters’ well-being.” The representatives pointed out that “there is no
question that both [Ms.] Atala and her daughters suffered arbitrary interference in their
private life.”
158. Furthermore, in relation to Articles 11.2 and 17176 of the American Convention, the
Commission and the representatives alleged “unlawful and arbitrary interference in the right
to private and family life, which extends to the development of relationships between
members of a family and the role of emotional relationships in the life project of each
member.” The representatives pointed out that “there is no single concept of family” and
that “[Ms.] Atala, her daughters and [Ms.] De Ramón undoubtedly constituted a family unit
which was broken up by decisions based on prejudice against Judge Atala’s expression of
her sexual orientation.”
159. The State argued that “in a custody trial, whose purpose is to consider which parent
shall take charge of the personal care of the children, the judge not only has the power but
also the obligation to assess each and every one of the specific conditions and
circumstances that determine the child’s best interest. [...] It is therefore inherent to the
custody trial […] that the judge may, according to law, investigate intimate details of the life
of the persons. It argued “that the pursuit of the child’s best interest must prevail over an
175
Article 11 of the Convention states that:
1.
Everyone has the right to have his honor respected and his dignity recognized.
2.
No one may be the object of arbitrary or abusive interference with his private life, his family, his
home or his correspondence, or of unlawful attacks on his honor or reputation.
3.
176
Everyone has the right to the protection of the law against such interference or attacks.
In this regard, Article 17 of the Convention states:
1.
The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State.
51