Vulneración del derecho a la adopción por parejas del mismo sexo; y, el interés superior de los menores a tener una familia.

Abstract

The Constitution of the Republic of Ecuador guarantees the right to equality and non-discrimination, contemplated among the categories that cannot be used as a differentiation criterion regarding the exercise of rights, the sexual orientation of the person. However, when referring to the different types of families and the way in which they can be constituted, it expressly prohibits adoption by persons of the same sex. This paper addresses the contradiction between this prohibition and the principle of superior interest of the rights of girls, boys and adolescents, since the imposed restriction prevents minors in a position to be adopted from being able to join an adoptive family. The study carried out has made it possible to verify that the prohibition of adoption by homosexual couples is discriminatory and violates equality, being also one of the causes for limiting the rights of minors in the family environment. The investigation is based on a compilation of a doctrinal, legal and jurisprudential order, and also addresses criteria of international human rights courts, as well as comparative legislation, which allow determining the need for Ecuadorian constitutional and legal regulations to admit the Adoption by same-sex couples, as it is an element that allows to guarantee the fulfillment of the purposes of this legal institution, in the same way, an analysis of sentences pronounced by the constitutional justice administration bodies that justify the relevance of the approach made is made.