Costa Rica: National Insurance Institute Confirms the Eligibility of Same-Sex Partners and Their Families for Social Security

In an official letter dated June 26, 2003 and sent to the Costa Rican LGBT organization CIPAC, the National Insurance Institute confirmed that insurance holders are free to name any person of their choice as beneficiaries for their life or medical insurance plans, “without any discrimination based on race, age, sexual preference or other criteria”.

Until now, there was no official clarity about who was eligible to be beneficiary; many believed that only “family members” were eligible. Based on the recent official letter to CIPAC, it is now known that lesbian, gay, bisexual and transgender people can appoint their partners, friends or significant others of any kind, as beneficiaries and –if denied the right to do so by any officer- they are entitled to sue the Institute.

ACTION

IGLHRC would like to ask for congratulatory letters to CIPAC/DDHH for taking the initiative to pursue this issue on behalf of the LGBT community in Costa Rica.

Please send your congratulations to

CIPAC/DDHH
Daria Suarez and Francisco Madrigal
cipacdh@racsa.co.cr

BACKGROUND

CIPAC/DDHH is an LGBT organization based in San Jose, Costa Rica. Their work covers many areas, but research on LGBT rights and lobbying are two of the key ones. In the past, CIPAC/DDHH has done research on how lack of access to housing (through private and state-sponsored loans), suicide and workplace discrimination affect LGBT Costa Ricans. Together with IGLHRC it has published the bilingual (Spanish/English) book-length report “Justice for All. Lesbian discrimination in Costa Rica” (it is available on our web site www.iglhrc.org or by request to amlac@iglhrc.org).

CIPAC/DDHH received complaints from LGBT people who denounced that the National Insurance Institute refused to accept “non-family members” as beneficiaries of life insurance policies. Costa Rican law defines “family members” (or “lawful heirs”) in Article 572 of its Civil Code, as

  1. Children, parents and consort, or de facto cohabitant, with the following exceptions:
    1. The guilty spouse in legal separation. Any of the consorts in de-facto separation, on the assets acquired during the time of separation.
    2. In the case of children born out of wedlock, the father can only leave an inheritance? to them if he had legally recognized them or at least paid alimony to them for two consecutive years.
    3. De facto partners have a right to inheritance only if their union has been constituted between a man and a woman who are legally capable of marrying, and have maintained a public, singular and stable union during at least three years. Their right extends only to assets acquired during the time the couple has been together (Amendment to the Code by Law 7142, March 8 1990).
  2. Grandparents and other legitimate ancestors. Mother and grandmother on the mother’s side are considered legitimate even in the case of children born out of wedlock
  3. Legitimate siblings and siblings born out of wedlock on the mother’s side
  4. Children of legitimate siblings or siblings born out of wedlock on the mother’s side, children of a legitimate sister or of one born out of wedlock on the mother’s side
    Legitimate brothers of the deceased’s legitimate parents and uterine non-legitimate brothers of the legitimate mother or father,

All Costa Rican legal instrument dealing with inheritance, social benefits and other civil law matters rely on the above detailed categories to confer rights. Non-family members have no legal rights whatsoever. Moreover, Costa Rican Family Code explicitly prohibits marriage “between people of the same sex” (Article 14.f). And it even defines “de facto unions” in such a way that same-sex relationships are excluded: ”The de facto, public, known union, exclusive and stable, for more than three years, between a man and a woman who are legally competent to enter into marriage, will cause all of the inheritance laws proper to a legally formalized marriage to be in effect, if it should end for any reason.” (Article 242).

In response to complaints about the lack of clarity in relation to beneficiaries, CIPC/DDHH contacted the National Insurance Institute on June 26, 2003 and asked what restrictions were in place for naming life and medical benefits insurance beneficiaries. The Institute replied with an official letter (PE/2003/1282) signed by its Executive President and stating that: “… every request and case are examined on an individual basis, to ensure that the suggested beneficiary has indeed an insurable interest in relation to the person who is applying for insurance, regardless of his/her sexual preferences…” And it adds: “… a potential insurance holder can appoint as beneficiary any person on whom she/he has an insurable interest, with no discrimination whatsoever in terms of race, age, sexual preference or any other status”. In translation, what this means is that as long as a request is genuine, the policyholder can name any person s/he wants to name as beneficiary.

Because of the lack of official recognition of LGBT relationships in the restrictive notion of “family” enshrined in Costa Rican law, the National Institute’s confirmation of LGBT people’s eligibility for social security and other benefits is a very significant step for LGBT people in Costa Rica and their families.

This openness will allow LGBT people to name their partners, or friends, as beneficiaries. An added benefit is that Institute policyholders are qualified to apply jointly for State-sponsored house loans some time after they have contracted their policies. Thus, housing loans that are much more affordable than those offered by private banks are also opened to LGBTs in Costa Rica.

This action by CIPAC/DDHH can be considered a “model intervention” by a civil society organization that has effectively managed to circumvent restrictive legislation and secure the recognition of basic human rights for the population it serves. Similar efforts are taking place in the region. Activists in Bahia and Curitiba, Brazil have established “Homosexual Union Books, which are informal registers of same-sex unions managed by LGBT organizations (Grupo Gay de Bahia and INPAR 28 de Junho). Couples registered in those Books are granted pensions, medical and life insurance benefits by the INSS (National Institute for Social Security).

Around the region, same-sex couples enjoy recognition of some civil rights in the Rio Negro province (Argentina) and the cities of Buenos Aires (Argentina); Sao Paulo, Rio de Janeiro and Recife (Brazil).

INTERNATIONAL LEGAL FRAMEWORK

The right to equality before the law and to be free from discrimination are protected by the Universal Declaration of Human Rights (UDHR) in its Articles 2 and 7, by the International Covenant on Civil and Political Rights (ICCPR) in its Articles 2 and 26, and by the Interamerican Convention on Human Rights (IACHR) in its Articles 1 and 24. "Sex" is a protected category under all those treaties.

The United Nations Human Rights Committee affirmed in its decision in Toonen v Australia (1994) that existing protections against discrimination in Articles 2 and 26 of the ICCPR should be understood to include sexual orientation as a protected status. Numerous other human rights mechanisms of the United Nations have subsequently condemned discrimination based on sexual orientation. The UN Committee on Economic and Social Rights has made a similar observation, in its General Comment 14 on the right to health- to be applied to all economic, social and cultural rights.

The right to social security is protected by the UDHR (Article 22) and by the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Article 9, including also social insurance).

The right to a standard of living adequate for the health and well-being of oneself and ones’ family (including rights to food, clothing, housing, medical care and necessary social service, and the right to security in the event of uemployment, sickness, disibility, old age or other lack of livelihood in circumstances beyond one’s control and the continuous improving of living conditions) is protected by the UDHR (Articl 25.1) and the ICESCR (Article 11.1)

The right to the enjoyment of the highest attainable standard of physical and mental health is protected by the ICESCR (Article 12.1)

The right to the protection of the family is enshrined in Article 16 of the UDHR, Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESC), Article 23 of the ICCPR, Article 17 of the IAHRC.

In terms of social, economic and cultural rights it is worth noticing that the IAHRC (Article 26) mandates signatory states to “adopt measures … with a view to achieving progressively, by legislation or other appropiate means, the full realization of the rights implicit in the economic, social, educational, scientific and cultural standards set forth in the Charter of the Organization of American States…” (basically, those protected by the ICESCR).

Article 7 of the Costa Rican Constitution establishes the precedence of international treaties ratified by the country over local laws. Article 33 of the same Constitution protects the right to equality before the law.

Costa Rica ratified both ICCPR and ICESCR in 1968, IACHR in 1970 and CRC in 1990. The UDHR is considered customary law for all Member States of the United Nations, including Costa Rica.

ABOUT IGLHRC

The mission of the International Gay and Lesbian Human Rights Commission (IGLHRC) is to secure the full enjoyment of the human rights of all people and communities subject to discrimination or abuse on the basis of sexual orientation or expression, gender identity or expression, and/or HIV status. A US-based non-profit, non-governmental organization (NGO), IGLHRC effects this mission through advocacy, documentation, coalition building, public education, and technical assistance.

IGLHRC
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San Francisco, CA 94109
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Telephone: +1-415-255-8680
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Email: iglhrc@iglhrc.org
http://www.iglhrc.org

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