Homoparentalidade e desafios ao direito: O caso Silva Mouta na justiça portuguesa e no Tribunal Europeu de Direitos Humanos

Abstract

This article examines how the judicial system has been mobilised in recognition of gay parenting rights and the reconstruction of human rights in the light of the Silva Mouta case, first brought before the Portuguese courts in 1991 and referred to the European Court of Human Rights (ECHR) in 1996. The case is an example of discrimination based on sexual orientation, revealing the contradictory position of the Portuguese courts in relation to the parenting rights of a homosexual father. It also shows how the mobilisation of the transnational judiciary through the ECHR, albeit on the basis of an individual case, may contribute towards reconstructing human and sexual rights. The article discusses the tensions and disjunctions between the different scales of state and inter-state justice, on the one hand, and the law and society on the other, in a case which brought social and legal-political challenges, arising out of claims by sexual minorities within a predominantly conservative context, into the judicial arena.

Keywords

• international law
• human rights
• sexual discrimination
• homophobia
• gay parenting
• homosexuality