Family Court of São Carlos / SP recognizes the right to dual maternity

The decision was based on the fundamental guarantees of the newborn, provided for in the Constitution and the Child and Adolescent Statute.

The 2nd Family and Succession Court of São Carlos / SP, in August 2020, granted the double maternity claim to a homoaffective couple who underwent “homemade artificial insemination”, with genetic material donated by an anonymous person. At that time, it was determined that the child’s birth certificate should include the names of both applicants as mothers, adjusting the document so that there was no distinction in maternal and paternal ancestry in relation to the names of grandparents.

The decision was based on the fundamental guarantees of the newborn, provided for in the Constitution and the Statute of the Child and Adolescent, embodied in the “right to see portrayed in public records, in this case, on his birth certificate, the exact factual reality of the family entity in which it was generated, enjoying full legal protection to which it is entitled ”.

In addition, the magistrate understood that denying the right to registration would constitute a discriminatory act due to the economic condition, therefore it is not appropriate, therefore, “to condition the child’s birth registration to the performance of an assisted procedure”, which would prevent “the full development individual ”, reaching the dignity of the human person.

Previously, in February 2014, at the Court of Justice of Rio de Janeiro, the 20th Civil Chamber recognized the right of a couple of women, who already lived in a stable relationship, to add to their child’s civil registry, conceived by heterologous artificial insemination , the information that he has a second mother. The decision was based on the recognition of pluralism as an indispensable element for a democratic society.

Finally, it is opportune to reiterate that the Supreme Court, in 2011, in the judgment of Direct Action of Unconstitutionality 4.277 / DF, reported by Minister Ayres Britto, expressly conferred a non-reductionist interpretation of the concept of “family” in the perspective of “pluralism as a socio- political-cultural ”. Therefore, he affirmed the “isonomy between hetero-affective couples and homo-affective couples”, that is, the “equal subjective right to the formation of an autonomous family”, ensuring the “recognition of the continuous, public and lasting union between people of the same sex. as a family ”.

By: Wilson Sales Belchior