By Jewellord T. Nem Singh, Contributing Reporter

RIO DE JANEIRO – Brazil’s National Congress is proposing a new debate that could fundamentally change the adoption laws in Brazil to indicate the gender of the adopting parents. In particular, the law will be used to prohibit two males or two females from legally adopting, using the controversial argument that homosexual couples do not constitute a “family”.

Superior Court of Justice in Brasília, photo by Luís Dantas/Wikimedia Creative Commons License.

Current Brazilian law tacitly allows for homosexual couples to adopt children because the law does not specify the sexual orientation of the sponsor. Article 42 of the Statute of Children and Adolescents under Law 8.069 prescribes that sponsors “may adopt over 21 years, regardless of marital status.” Despite this, the courts have been very careful in evaluating cases of adoption, which have been done on a case by case basis for the sake of attaining the best possible outcome for the child.

The proposed legislation comes after the Superior Court of Justice (STJ) reaffirmed the decision of the Court of Justice of Rio Grande do Sul (TJRS) in April 2010 to give a lesbian couple the legal right to adopt. The case was however invoked by the Ministry of Public Affairs.

“If you want to recognize homosexual unions as stable unions, you must recognize the nature of the equivalent institution, and there is no denying that it is not characterized as family entity,” Minister of Federal Public Affairs Luís Felipe Salomão argued.

The Superior Court negated the decision although the Supreme Federal Court (STF) can overturn the court’s decision based on constitutionality.

The STJ’s decision is important as it raises the fundamental issue of the right of the child for decent living as well as the protection of children from harm, which are stipulated in Law 8.069.  The law outlines the various responsibilities of parents towards their children, particularly regarding education, health and security.

Beyond specific laws, the 1988 Federal Constitution is the landmark innovation in family law because it defines family rights using various principles of family relations, of which the most important is the value of human dignity. The Constitution upholds the principle of equality without prejudices regarding origin, race, color, sex, age, or any other form of discrimination.

The proposed law is going to challenge the legal basis of family relations as it attempts to define who can and cannot have adoption rights. The proponents’ main argument is that homosexual relationships do not constitute a family, and following their logic, it is in the interest of the state to give the child an environment with a mother and a father. For the opponents, the law curtails rather than ensures rights of Brazilian citizens, not to mention contradicts the principles of social equality enshrined in the Constitution.

The legal right to adopt is just one of the fights being undertaken by gay rights activists in Brazil. There are other clear issues that are yet to be addressed, such as discrimination in the workplace, security and domestic violence, as well as legal status for civil unions between same sex couples.


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