" Homoparental families should be seen as one of the possible ways of living in society, as they are no different from the so-called normal ones, as they are all based on affection and love."
Although homosexuality is part of human history, the Brazilian legislation has not yet ensured the legal effects of same-sex unions and there is a strong understanding in the doctrine that these are not constitutionally protected family entities, stating that in these unions there is a mere de facto society and no communion of affection.
However, it is within the scope of the judiciary that homosexual unions are recognized. Dias (2009, p. 187) emphasizes that "one cannot fail to recognize that there are relationships that, even without gender diversity, meet these requirements. They have an emotional bond and must be considered family entities".
Thus, justice cannot deny the family condition to same-sex unions, as Rios (2001 apud DIAS, 2003) states, "ventilating the possibility of disrespect or harm to a human being, due to sexual orientation, it means to give undignified treatment to human beings".
In this band, although the law does not regulate homosexual unions, the judiciary cannot turn a blind eye to this social reality, as it becomes inadmissible, as it entails violation of constitutionally guaranteed rights to every citizen, regardless of their sexual orientation.
Thus, as the legislator has not regulated the legal effects of same-sex unions, as it has already done with the common-law marriage, the national judiciary has understood that the rules of these must be applied to those, by analogy, since they meet the legal and factual requirements of this institute
In this line, the Supreme Court, in an unprecedented decision, recently, by unanimous vote, recognized same-sex unions as one of the possibilities of family construction, thus granting these affective unions the status of a constitutionally protected family entity, thus ensuring , to homosexual partners the same rights and duties of partners in stable unions.
Recognizing same-sex unions as constitutionally protected family entities, equating same-sex union with stable union for all legal purposes, therefore, the national judiciary and part of the doctrine begin to envision a new family arrangement, homoparentality, "because of any legal impediment that if glimpsed, it no longer fits within the current Brazilian order", as evidenced by Chaves (2011), since ensuring equal treatment for all while respecting differences is to provide human dignity and, consequently, justice.
In this regard, with regard to the criteria that guide the adoption institute, the Brazilian legislation does not include any reservation regarding the sexual orientation of adopters, nor does it present any restrictions regarding homoparental adoption. Thus, the 1990 Child and Adolescent Statute - ECA, a legal instrument that deals with adoption, brings in its art. 42 that "can adopt those over 18, regardless of their marital status", provided that they present real advantages for the adopter.
In this sense, it was the understanding of the current Judge Siro Darlan, when granting the adoption of a child under one year of age to a female homosexual, as early as 1997. Currently, the jurisprudence establishes an understanding in the sense of granting adoption to the homosexual person, provided that such act presents real advantages for the adoptee and is based on legitimate reasons.
With regard to joint adoption by same-sex couples, there is no standard in current legislation that prohibits such practice. Thus, there is no impediment for a couple who live in a same-sex relationship to postulate the adoption together, as long as such an act provides the best interest to the adoptee. When dealing with the issue, Pena Jr. emphasizes: under the principles of human dignity, non-discrimination, solidarity and freedom, this type of adoption is perfectly possible. In fact, if the husband and wife, partners in a stable union, and even the divorced and legally separated, can adopt, the same must happen with the partners in the homosexual union.
What is important is that, in the name of the best interests of the child and adolescent, they are guaranteed, in addition to other rights, the right to dignity, respect and family life, in addition to a lot of love and affection (PENA JR., 2008, p. 311)
In this line, Dias (2008) points out that, although still discreetly, the Brazilian jurisprudence has positioned itself in favor of homoparental adoption. The first decision in this regard was made by the Gaucho Court of Justice, which recognized the right to adopt two minors to a homo-affective female couple. As the judge denoted when granting the adoption, there is no legal impediment for a couple living in a same-sex relationship to apply for the adoption together, provided that such act provides the best interest to the adopter, under the terms of the ECA.
In this band, the Judiciary of the State of Minas Gerais recently manifested itself, confirming in the second instance, by unanimous vote, the adoption of a minor by a homo-affective female couple. The judges used the Public Records Law to support their decision, stressing that the aforementioned law does not prohibit the registration of two fathers or two mothers in the same birth certificate.
A decision along the same lines granted the magistrate of the District of Pelotas, in the State of Rio Grande do Sul, when granting the adoption of a boy to a male homosexual couple. In granting adoption, Judge Nilda Stanieski emphasized that the sexual orientation of adopters "should not be seen as an impediment to adoption."
When dealing with the issue, Lôbo (2009) emphasizes that there is no legal prohibition so that people who live in a same-sex relationship can adopt the same child. Also, according to Dias (2008), denying the possibility of adoption when the parents are of the same sex is providing discrimination and only harms those who just want to have someone to call their mother and/or father, no matter if they are two fathers or two mothers, but the love and affection that will be given to the child.
Furthermore, the State cannot, in the words of the author, refuse to fulfill its obligation to lead human beings, regardless of their sexual orientation, to happiness. In this regard, homoparental families should be seen as a family entity worthy of guardianship, since, as Lôbo (2009) brings, when fulfilling the requirements of affectivity, stability and ostentation, they are in no way different from other family entities constitutionally protected. The affection and love that the child has in relation to the parents are in no way different in that they are of the same sex, as such feelings do not presuppose the diversity of sexes.
It so happens that there is still a strong understanding against homoparenthood, based solely on the sexual orientation of individuals, reflecting unfounded prejudice and stigmatizing moral conceptions. However, the Law cannot turn a blind eye to the rights of this family entity, as it entails violation of constitutionally guaranteed rights to every citizen, regardless of their sexual orientation.
This time, according to Pena Jr. (2008), society cannot deny homoparental families and tolerate that there is still deprivation of individual freedom due to the individual's sexual orientation, since it is clear that those family entities are a social fact worthy of guardianship. state-owned.
Indeed, due to the analysis of the proposed theme, it was noted that the position against homoparental adoption is mainly based on unfounded prejudice and stigmatizing moral bases, as emphasized by Rios (2001) when addressing the topic. Among the main arguments against joint adoption by same-sex couples, the author indicates that the following stand out, namely: (1) potential danger of the child suffering sexual violence, (2) the risk of influencing the child's sexual orientation by that of the adopter , (3) the inability of homosexuals to be good parents and (4) the possible difficulty of the child's social insertion due to the adopter's sexual orientation.
Furthermore, in the words of Dias (2008), the resistance to accepting homoparental families stems from the false idea that the lack of a clear figure of the father and mother can lead to serious psychological sequelae and difficulty in the sexual identification of the adoptee. However, the main references in the field of research on homoparenting state that there is no scientific basis that the absence of parents of both sexes will harm the development of their sexual identity, as explained by Zambrano (2007).
In this context, Lôbo (2009) shows that research in the field of child psychology and psychoanalysis demonstrate that children raised in heterosexual homes have the same psychological, mental and affective development as those raised in homo-affective families. On this occasion, Zambrano (2007), when dealing with the issue, brings out that the assertion that homoparental families are harmful to children is supported by the lack of knowledge of the extensive scientific material already produced in the field of Psychology.
Still, the author emphasizes that the adoption carried out by two equals who love each other does not harm the adopting person, on the contrary, she points out that what is really bad for children and adolescents is the lack of love and affection. Thus, due to the number of researches carried out on the subject and due to the results of these studies, it can be said, with absolute propriety, that homoparental adoption does not affect the development of the adoptee, and in no way differs from other forms of affiliation driven by affection.
Thus, homoparental adoption is still a theme permeated with prejudice and without consensus or legal solution, since discrimination based on sexual orientation is one of the realities that most strongly persists in society, as Rios (2001) asserts. However, justice cannot turn a blind eye to homoparental families, as such entities, as well as others, should be seen as one of the possible ways of living in society, since the homoparental family is in no way different from the so-called normal ones, as all are based on affection and love. The legal permission for the constitution of a homoparental family is, therefore, one of the possibilities for moving towards a more humane and much fairer society.