BRAZIL Law and Practice Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
presumptions of paternity in defined circumstances connected with marriage, including certain forms of assisted reproduction. These presumptions generally allow the husband to be registered as the father with - out separate recognition or judicial proceedings. Where the parents are not married, the father must ordinarily acknowledge paternity voluntarily or have it established by judicial decision. Once legal parent - hood exists, however, marital status makes no differ - ence to parental authority. Article 227 (6) of the Fed - eral Constitution and Article 1,596 of the Civil Code prohibit discrimination between children born inside or outside marriage and adopted children. Married and unmarried legal parents therefore hold the same parental rights and duties. Marriage is not conclusive where the presumption of paternity is successfully contested, another person’s parentage is established or specific assisted-repro - duction rules apply. Equally, the subsequent separa - tion or divorce of the parents does not end parental authority. It changes the legal relationship between the adults, not their continuing rights and responsibilities towards the child. 1.6 Same-Sex Relationships For parental responsibility, Brazilian law does not differ in substance according to the parents’ sex or sexual orientation. The same rules governing legal parent - hood and parental authority apply to all families. Same-sex couples may adopt, establish parenthood through assisted reproduction or obtain recognition of socio-affective parenthood under the same legal standards applicable to different-sex couples. This equal treatment reflects Brazil’s clear legal rec - ognition of same-sex families. In 2011, the Supreme Federal Court, in ADI 4,277 and ADPF 132, recognised same-sex unions as family entities with the same sta - tus and legal consequences as different-sex unions. Since 2013, National Justice Council Resolution 175 has prohibited civil registrars from refusing to per - form same-sex marriages or convert same-sex stable unions into marriage. Marriage or partnership alone does not, however, make a person the legal parent of their spouse’s or
partner’s child. Legal parenthood must still be estab - lished through birth registration, adoption, socio- affective recognition or a judicial decision. Once established, both parents hold complete and equal parental authority, with no secondary or restricted status arising from the same-sex nature of their rela - tionship. 1.7 Adoption Adoption is the legal process through which an adop - ter becomes a parent and acquires parental authority. No separate application for parental responsibility is required. Once the judgment becomes final and the new parentage is registered, the adoptive parents assume the same rights and duties as birth parents, including responsibility for the child’s care, education, representation, support, residence and property. The procedure is judicial and governed principally by Articles 39 to 52-D of the Child and Adolescent Stat - ute. An adopter must be at least 18 and at least 16 years older than the child. Couples adopting jointly must be married or in a stable union and demonstrate a stable family environment. The same requirements apply to different-sex and same-sex couples. The court must find that adoption serves the child’s best interests and provides genuine benefits. The applicants undergo professional assessment, and a supervised placement period is generally required. The birth parents’ consent is normally necessary unless they are unknown or have lost parental author - ity. The child must be heard according to age and maturity, and a child aged 12 or over must personally consent. The final judgment creates a complete parent-child relationship and transfers parental authority to the adopters. Previous legal ties with the birth family ordinarily end, except for marriage impediments; in a step-parent adoption, the relationship with the remain - ing legal parent is preserved. International adoptions must also comply with the Child and Adolescent Stat - ute and the 1993 Hague Adoption Convention, includ - ing Central Authority, accreditation and subsidiarity requirements.
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