REPORT Nº 42/08
ADMISSIBILITY
PETITION 1271-04
KAREN ATALA AND DAUGHTERS
CHILE 1
July 23, 2008
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SUMMARY
1. On November 24, 2004, the Inter-American Commission on Human Rights (hereinafter, the
“Inter-American Commission” or the “IACHR”) received a petition alleging that the State of Chile
is internationally responsible for violations committed by means of a Supreme Court of Justice
ruling that revoked from Ms. Karen Atala custody of her three daughters (aged 5, 6, and 10
years). They claim the ruling was grounded exclusively on discriminatory prejudices based on Ms.
Atala’s sexual orientation. The petition was lodged by Ms. Karen Atala, who is a Chilean lawyer
and judge, and attorneys Verónica Undurraga Valdés, Claudio Moraga Klenner, Felipe González
Morales, and Domingo Lovera Parmo, all representatives of the Asociación Gremial, Libertades
Públicas [Public Liberties Association], the Clínica de Acciones de Interés Público from the
Universidad Diego Portales [the Public Interest Clinic of Universidad Diego Portales], and the
Fundación Ideas [Ideas Foundation] (hereinafter, “the petitioners”). 2
2. The petitioners hold that the facts violate the following rights recognized by the American
Convention on Human Rights (hereinafter, the “American Convention”) to the detriment of Ms.
Karen Atala and her three daughters: the right to personal integrity (Article 5(1)); the right to a
fair trial (Article 8); the right to protection of the honor and dignity (11(1)); the right to privacy
(Article 11(2)); the rights to protection of the family (Article 17(1) and 17(4)); the rights of the
child (Article 19); the right to equal protection (Article 24); and the right to judicial protection
(Article 25), in conjunction with violation of the obligations to guarantee rights and to give
domestic legal effect to rights set forth in Articles 1(1) and 2 of the American Convention; and
Articles 2, 5, 9 (2) and (3), 12, and 16 of the United Nations Convention on the Rights of the Child
(hereinafter, the “Convention on the Rights of the Child”).The petitioners argue that all domestic
remedies were exhausted with the Judgment of the Supreme Court of Justice of Chile which, they
allege, permanently, arbitrarily, and in a discriminatory manner revoked Ms. Atala custody of her
three minor children because of her sexual orientation.
3. The State, for its part, requests that the petition be declared inadmissible, because the ruling
was based on the best interest of the girls and, “according to evidence presented in the trial, on
the conduct of the mother, who opted to cohabit with a partner of the same sex, with whom she
proposed to raise her daughters, which was deemed inadvisable for the girls’ upbringing and a risk
to their development in the current context of the Chilean society.” 3 The State also reiterates that
domestic remedies have not been fully exhausted because under Chilean law Ms. Atala is able to
file a new complaint to claim custody of her daughters.
4. Without prejudging the merits of the matter, the IACHR concludes in this report that the
petition is admissible under Articles 46 and 47 of the American Convention. Accordingly, the InterAmerican Commission decides to inform the parties of its decision and to continue with its analysis
of the merits in connection with the alleged violation of Articles 8(1), 11(2), 17(1), 24 and 25 of
the American Convention, all in conjunction with the general obligation to respect and guarantee
these rights provided in Articles 1(1) and 2 of that international instrument, to the detriment of
Ms. Atala and her daughters; as well as with the alleged violation of the rights of the child
1 Commissioner Felipe González, a Chilean national, did not take part in the discussion or decision in the instant case, in
accordance with Article 17(2) of the Commission’s Rules of Procedure.
2 On January 24, 2005, Ms. Karen Atala sent a communication to the Commission in which she named the attorney
Macarena Sáez as her representative in this proceeding.
3 Response of the State of Chile, Ministry of Foreign Affairs, Department of Human Rights, June 15, 2005.
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