IACHR Files Application Before Inter-American Court of Human Rights in Case Concerning Adoption in Argentina

May 17, 2022

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) filed on April 25, 2022, an application before the Inter-American Court of Human Rights in the case of "María" and her son "Mariano", with regard to Argentina. The case concerns human rights violations committed in the process of granting custody and adoption of the son of 13-year-old mother "María". The victims' real names will remain undisclosed.

In its Admissibility and Merits Report, the IACHR noted that Argentina had failed to comply with its obligation to take all possible measures to ensure that "Mariano" remained with his biological family, which he had the right to do. This involved an unjustified exclusion of the extended family of "María," which had expressed its intention to adopt the boy weeks before he was born. Judicial authorities handed over the baby to a married couple, as pre-adoption guardians, with no legal grounds or justification to do so.

The baby's mother and grandmother did not receive the advice they needed to give their free, prior, and informed consent to an adoption, particularly considering the situation of "María" as a pregnant girl who was a victim of sexual violence. They were also not granted an appropriate public defender to file a timely appeal. Once they were able to file an appeal, the State took one year to respond to their request for a restoration of the ties between mother and child. While visitation rights were formally granted, access to the child was difficult, partly because judicial authorities failed to respond in a timely manner. To this day, "Mariano" remains in the custody of his adoptive family.

The Commission found that the State had failed to respect the dignity of "María" as an adolescent, as a woman, and as a mother, and that it had failed to protect the rights of "Mariano" to a family and to an identity without considering the best interests of mother and child, which caused irreparable harm to their rights and affective ties.

The Commission therefore declared the State responsible for violations of the rights to humane treatment, a fair trial, a family life, protection of the family, equal protection, and judicial protection held in Articles 5, 8.1, 17, 11, 24, and 25 of the American Convention on Human Rights concerning Articles 19 (rights of the child) and 1.1, and for violations of the right of "María" to live a life that is free of violence, held in Article 7 of the Belém do Pará Convention.

In its report, the Commission recommended, among other aspects, that the State provide comprehensive redress to "María" and her mother, to effectively restore the ties between mother and child, and to investigate the actions and responsibility of the judicial and administrative officials involved in the case. The Commission further recommended the adoption of non-recurrence measures aimed at ensuring that all girls and adolescents receive free multidisciplinary legal support before granting their consent to the handover of their child, as well as of public policies and training concerning adolescent pregnancies and guardianship and custody processes involving the children of adolescent mothers.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 105/22

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