12
observations a bill to amend several articles of the Adoption Law as an “example of steps
taken by the State to prevent the repetition of situations such as that of the child L.M.”
11. Thus, the explanatory statement for the bill presented by the State indicates that the
current Adoption Law “gives rise to a situation that enables the custody of children not yet
declared available for adoption to be granted to families with clear intentions to adopt,
omitting the technical procedures relating to the maintenance of the ties between the child
and his or her biological family, without having exhausted the mechanisms for maintaining
the biological ties and, in most cases, giving priority to using adoption as a first measure
rather than as an exceptional measure.” In this regard, the text adds that “the possibility
granted by the Law [...] to families awarded custody to be able to adopt children after
custody has been in effect for two years, tacitly gave rise to the appearance of a
mechanism known as pre-adoption custody [which is] incompatible with the comprehensive
protection doctrine, because it does not respect the child’s right and best interest to live
with his or her family of origin as a first measure, in which the child and its family receive
sufficient support to strengthen and maintain the original ties.” The text continues, by
indicating that, “[c]ompletely to the contrary, the concept of pre-adoption custody is used
in a discretionary manner as an abbreviated method to obtain and legitimize irregular
situations very closely related to the sale and trafficking of boys, girls, and adolescents; this
is clearly revealed by the statistics of the Adoption Center, which show that, in 2010, 82%
of the adoption judgments were granted based on pre-adoption custody.” The explanatory
statement concludes by indicating that, in view of the description of the background facts
relating to the jurisdictional and administrative procedures that establish the mechanism of
pre-adoption custody, in clear violation of the best interest of the child, the comprehensive
protection doctrine, and the specific functions of the Adoption Center, the jurisdictional legal
framework must be amended.”
12. In the instant matter, as the Commission has indicated, “the main point of the request
is that no decision has been reached in any of the cases regarding the custody and care of
L.M., and no decision has been reached regarding the biological relationship with his nuclear
and/or extended family.” In other words, “his custody and care situation remains
unresolved, while the requests that seek to establish contacts with his biological family
remain undecided.” Consequently, the Commission argues that this “series of elements
constitutes a situation of extreme gravity that may affect, irreparably, the proposed
beneficiary’s rights to identity, mental integrity, and to a family” and, consequently,
requests the State to “expedite the domestic proceedings and decisions regarding L.M.’s
best interest, including, as soon as possible, the required decisions on his contact with his
biological family.”
13.
The Court does not have to rule on whether the different proceedings in the
domestic sphere are being processed in keeping with the American Convention, or in
accordance with the special obligations of protection for children and adolescents. If
appropriate, these aspects could be debated in the context of the petition filed before the
Inter-American Commission. In this matter, the Court is only called on to determine
whether the proposed beneficiary is in a situation of extreme gravity and urgency that
responds to the need to prevent irreparable damage. The request presented in favor of
L.M. intends to protect his rights to mental integrity, identity, and a family.
14.
Regarding the right to protection of the child’s family, recognized in Article 17 of the
American Convention, the Court has underscored that this means that the State is obliged
not only to establish and directly execute measures for the protection of children, in
accordance with Article 19 of the Convention, but also to encourage, in the broadest
possible way, the development and strength of the family unit.38 Consequently, the
38
Cf. Juridical Status and Rights of Undocumented Migrants, Advisory Opinion OC-18/03 of September 17,