Beretta Godoy partners Omar Beretta and Federico Godoy report on Argentina's same sex marriage law, the first of its kind in Latin America
[ Published July 7th, 2010 -- http://latinlawyer.com/news/article/40675/argentina-legalises-gay-marriage ]
After a marathon debate, which ended at dawn, Argentina's Senate passed a same-sex marriage law by a margin of six votes.
The law passed on 15 July makes Argentina the first Latin American country to adopt same-sex marriage nationwide, and the tenth country in the world to do so.
Back in 2002 the City of Buenos Aires had passed a Civil Union Law that represented the first acknowledgement of rights for same-sex couples in Latin America. It was a historical day in the long fight for human rights. However, the law had limited practical results. Far from providing adequate legal protection to same-sex couples, it only allowed public servants working in the City of Buenos Aires to register their partner with the healthcare provider, receive pension payments in case of death of the partner, apply for joint bank loans and request work leaves in case of illness of the partner. The couple could not adopt children, become an heir in case of death of the other partner, they were not subject to alimony obligations and there was no partition of property in case of separation.
The gay community continued to work for a full recognition of rights. In recent years, several same-sex couples approached the Civil Registry Office requesting to be married. On being refused, they filed injunctions before the courts alleging the violation of their constitutional right to equal protection and privacy, among other arguments. When they were rejected by the courts, they appealed all the way up to the Argentine Supreme Court of Justice, where the matter is still pending.
But, in November 2009 a first instance court admitted an injunction and authorised the first same-sex marriage in Argentina. In spite of judicial actions to reverse the decision, the couple eventually got married and several other same-sex couples were later authorised to do on the grounds of the constitutional right to equal protection and privacy.
In parliament, the rally began with two different bills filed in 2009 and 2010 proposed an amendment to the Argentine Civil Code, replacing the term 'man and woman' by the term 'spouses'. Both were consolidated under a single bill that was presented to the House of Deputies.
The bill was passed by the House of Deputies in May this year, and was passed up to the Senate, whose General Legislation Committee held extensive meetings with on both sides of the debate. And on 14 July, the Senate met. Senators were divided in three main groups: those in favour of the law, those against, and a third group that attempted a form of civil union that granted several rights but that excluded others, like adoption. In the early hours of July 15 the Senate passed the bill after fierce discussion.
The law amends the Argentine Civil Code that defined 'marriage' as the union of man and woman. Under its new definition, the term 'man and woman' is replaced by the term 'spouses'. By virtue of this, same-sex couples are subject to the same rights and obligations that marriage accorded to man and woman. Same- sex spouses may elect to add to their last name the last name of their spouses.
Although there was no impediment for gay persons to adopt children individually, the partner of the person that had adopted the child had no rights or obligations concerning the adopted child. Now, the rules of adoption will become immediately applicable to same-sex couples and both spouses will have the same rights and obligations over the adopted child.
This radical change in the Argentina's civil law system opens the possibility of expanding civil rights further. A bill of law on gender identity has already been submitted to the House of Deputies proposing to grant transvestites the right to have a name that reflects the sexual identity of their choice shown in their identification documents. As was the case with same-sex marriage, judges have already granted this right to those that have requested it, but this is a cumbersome and expensive procedure.
For supporters of the bill, extending the full set of rights to homosexual couples is a historic development that acknowledges rights to all human beings regardless of their sexual orientation. Hopefully, in a few years we will find it hard to understand that there was a time when such rights were not universally recognised.