Abstract

ESTRADA VELEZ, Sergio. Two consideration exercises related to marriage and adoption by same-sex couples. Opin. jurid. [online]. 2011, vol.10, n.19, pp.21-40. ISSN 1692-2530.

This article is intended to tackle two related topics such as marriage between same-sex people and their possibility to adopt through two main arguments: recognition to their right to be different and children's right to have a family. With this, the equality principle is intended to be left aside as the main defense argument and to question the claim preclusion (res judicata) established by the Constitutional Court in 2001 Sentence C-814 (Constitutional Court, 2001 Sentence C-814) by means of which unconstitutionality of adoption by same-sex couples was decided as a search for the children's best interest, since it was against both social morals and the kind of family established by partner; therefore, this sentence declared expressions such as "morals" and "a couple consisting of a man and a woman capable of proving an uninterrupted coexistence of at lest three (3) years" as enforceable, as stated in Articles 89 and 90 of Decree No. 2737, 1989 or Children's Code (revoked by Law 1098, 2006). For this purpose, the so called integrated proportionality test is used in order establish, from those two practical situations, pros and cons of this consideration. The test has then two intentions: a theoretical one intended to analyze consideration and a practical one: its operation in our complex social reality.

Keywords : Adoption; consideration; gay marriage; legislative right.

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