Panama: Bill Bars Same-Sex Couples from Adoption

Panama’s National Assembly passed a bill on March 3, 2021, that includes a discriminatory prohibition on adoption by same-sex couples, Human Rights Watch said Tuesday.

Bill No.120, which aims to protect children and adolescents from unnecessary separation from their biological family, allows for adoption by both single persons and married couples. However, not only are same-sex marriages not yet legal in Panama, but the bill defines eligible married couples as those composed of partners of «different sex».

President Laurentino Cortizo should veto articles 22 and 26 of the bill, which violate international human rights standards on non-discrimination, respect for private and family life, and the rights of the child, and perpetuate prejudices about lesbian, gay, and bisexual (LGB) people.

«Excluding same-sex couples as adoptive parents is not only stigmatising but in Panama compounds the violation of not having their relationships acknowledged or protected in the first place», said Cristian González Cabrera, lesbian, gay, bisexual, and transgender (LGBT) rights researcher at Human Rights Watch. «Categorically barring children from being adopted into loving and supportive families is also inconsistent with the principle of the best interest of the child»

After passing the National Assembly, the bill is now ready for signature by President Cortizo, who has the legal authority to veto all or part of it.

Many of Panama’s regional neighbours, including Mexico, Colombia, Brazil, Argentina, and Uruguay, allow adoption for same-sex couples. The proposed law would put Panama out of step with advances in the region.

The bill also flies in the face of the Panamanian government’s recent statement on the rights of LGBT people. Responding to acts of discrimination during the gender-based quarantine, five government ministries and the Ombudsperson’s Office issued a statement that said, «the National Government rejects any type of […] homophobia, transphobia or discrimination[.]» Citing the country’s international obligations, high-level officials showed a political commitment to the principles of equality and non-discrimination. Panama should act on those obligations and recognise and implement measures of protection for same-sex couples, that would also allow same-sex couples to adopt on an equal basis as different-sex couples.

Some may argue that preserving adoption for married couples is in the best interest of the child as it offers the prospect of stability over an unmarried couple. However, since Panama provides no option for any kind of recognition and protection of the family life of same-sex couples, the exclusion of same-sex couples from adoption is based not on the quality of their relationship but on their sexual orientation.

Panamanian law does not exclude an individual who is lesbian, gay, or bisexual from adopting a child as a single parent and raising them with their partner. Yet this places a discriminatory burden on these parents and children. For example, if the adopting parent dies, the other may not be able to establish custody. Having two legal parents may also have implications for a host of different aspects of a child’s life, traveling or seeking medical care with the non-adopting parent, or inheriting property.

Cornell University has compiled over 70 peer-reviewed scholarly studies from around the world that overwhelmingly conclude that children of same-sex parents fare as well as other children.

According to the American Academy of Child and Adolescent Psychiatry, “[t]here is no evidence to suggest or support that parents who are lesbian, gay, bisexual, or transgender are per se superior or inferior from or deficient in parenting skills, child-centered concerns, and parent-child attachments when compared with heterosexual parents. There is no credible evidence that shows that a parent’s sexual orientation or gender identity will adversely affect the development of the child.”

Laws regulating or protecting a person’s status and rights as a parent that make determinations based solely on an individual’s sexual orientation or gender identity violate international human rights standards on non-discrimination and respect for privacy and family life. Panama has ratified both the International Covenant on Civil and Political Rights and the American Convention on Human Rights, which protect these rights. Panama is also a party to the Convention on the Rights of the Child, which in article 21 establishes that in cases of adoption the best interests of the child are the «paramount consideration».

The UN Committee on the Rights of the Child has held that while «[y]oung children may also suffer the consequences of discrimination against their parents, […] [s]tates parties have a responsibility to monitor and combat discrimination in whatever forms it takes and wherever it occurs ‑ within families, communities, schools or other institutions». The committee and other human rights bodies have consistently denounced discrimination on the basis of sexual orientation.

As the Inter-American Court of Human Rights observed in Atala Riffo and Daughters v. Chile, a case about lesbian parenting, «the determination of the child’s best interest in cases involving the care and custody of minors must be based on an assessment of specific parental behaviours and their negative impact on the well-being and development of the child, or of any real and proven damage or risks to the child’s well-being and not those that are speculative or imaginary».

«President Cortizo has an opportunity to affirm his government’s commitment to the rights of same-sex couples and he should seize it», González said. «Same-sex couples are equally capable of raising children as different-sex couples and should not be excluded from the opportunity to provide for children who may be in need of a caring and loving home».