La sentencia 28-15-IN de la Corte Constitucional del Ecuador : ¿Un caso de acción afirmativa?.

Abstract

The unconstitutionality of article 106 #2 and #4 of the Organic Code of Childhood and Adolescence is stated in case no. 28-15-IN, which contained the preference rule over the mother when granting child custody in case there was no agreement between the father and the mother, despite the fact that both parents are found to be in equal conditions. During the case development, the possibility that the maternal preference was an affirmative action measure was raised. This paper analyzes the figure of affirmative action, which consists of preferential treatment in favor of members of groups that have suffered systematic and historical discrimination in various areas of social life such as labor, education and politics. Gender perspective allows to determine whether a provision is favorable to women, or whether it responds to cultural conceptions. Based on these criteria, we can conclude that maternal preference does not fulfill the purpose of affirmative action, which is to vindicate the rights of people in situations of inequality.