Abortion, lovers and polygamy under debate in the new Civil Code commission

The working week of the Commission of Jurists, called by the President of the Senate, Rodrigo Pacheco (PSD-MG), to present the draft of a new Civil Code, was intense and with heated clashes especially over moral issues. Last Thursday (4), excerpts of the text were discussed that dealt with the right to life, the right to lovers, polygamy and even the possibility of recognizing multiparentality in the Civil Code, which is the possibility of a child having more than one bond maternal or paternal on your birth certificate. The presidency of the Federal Senate, responsible for establishing the commission, should officially receive the text of the draft in the coming days.

One of the articles in the final report which, as presented by People’s Gazette, could give loopholes to abortion by considering the embryo as “potential for life” was altered. The first paragraph of article 1511-A, in its first version, pointed out that “the potential for pre-uterine or uterine human life is an expression of human dignity and responsible fatherhood and motherhood”.

“As it stands, this article is too problematic because it calls uterine life potentiality and inside the uterus there is no potency of life, there is act, there is life. I suggest the complete deletion of this first paragraph or, if the concern of the general rapporteur was to prohibit the commercialization of gametes, it should establish the wording that the commercialization of sperm, eggs and embryos is prohibited”, suggested Maurício Bunazar, member of the commission.

For a jurist, even with changes, the article does not provide effective protection for the unborn child

After a broad discussion, the members approved the new version presented by, also rapporteur, Rosa Maria Nery, who says that “the potential of pre-uterine human life and pre-uterine and uterine life are an expression of human dignity and responsible fatherhood “.

“In this way, we protect gametes, which cannot be sold, frozen embryos, which cannot be discarded and we are saying this in the text, and we protect the uterine life of the unborn child. We place this on the shoulders of paternal and maternal responsibility, because after all, people need to know what they do with their things”, defended Nery. The new version was approved without unanimity, as some members would prefer the paragraph to be removed from the text.

“This new wording is better than the previous one, but the provision is still vague. Saying that they are an expression of human dignity and responsible fatherhood does not mean providing effective protection”, analyzes Caio Morau, PhD in Civil Law from USP and professor of Law at the Catholic University of Brasília.

Morau believes that removing the paragraph would also be irrelevant, since with or without the device there would be no practical protection effects. “In practice, the scenario remains the same”, he reinforces.

Article dealing with the legal personality of the unborn child is maintained

Another point that, in the view of some jurists, would also give space to the advancement of abortion in Brazil, would be the addition of the expression “for the purposes of this code” in article 2, which deals with legal personality.

The jurists’ initial proposal would be to change the text of the provision to: “the civil personality of the human being begins from birth alive and ends with death brain; the law protects, from conception, for the purposes of this Code, the rights of the unborn child”. After discussion, in the session on Friday (5), the commission decided to maintain article 2 as it is in the current Civil Code: the “civil personality of the person begins from birth alive; but the law protects, from conception, the rights of the unborn child.”

Jurists heard by the People’s Gazette stated that the modification of the provision, if it had been approved, would have provided more grounds for a favorable understanding of abortion, also through the Federal Supreme Court. The current wording of article 2, for example, was mentioned in minister Rosa Weber’s vote in the trial of the action that seeks to decriminalize abortion up to the 12th week of pregnancy. For the minister, as the Civil Code defines that a person’s legal personality only begins when they are born alive, abortion would be legitimate. The addition “for the purposes of this Code” could lead to the interpretation of lack of protection for the unborn in the Penal Code, which describes abortion as an unpunished crime in cases of rape and risk to the life of the pregnant woman.

Changed during the meeting, the previous version of the text benefited lovers according to the committee members themselves

Another article that had wide debate and underwent changes was 1.564-D, which would allow the recognition of rights for lovers, such as People’s Gazette also showed. According to the analysis of Regina Beatriz Tavares, PhD in Civil Law from USP and president of the Family and Inheritance Law Association (ADFAS), the version approved during the meeting is adequate.

“The change made to the wording previously proposed on article 1.564-D, making it clear that a relationship parallel to a marriage or a stable union does not constitute a family, as well as that if there is unjust enrichment there will be restitution of what has been unduly earned by the spouse or cohabitant puts the adulterous relationship where it should be: it is not a family relationship”, observes Tavares.

During the discussion, Bunazar highlighted the danger of the first version when considering concubinage as a union similar to a stable union and marriage. “There is a fundamental problem here. We are recognizing that this is not a stable union, it is not marriage, but it is something. The Civil Code says that it is concubinage, which is an illicit relationship. What we are doing here is recognizing that this is a tertium genus alongside marriage and stable union”, he countered. O tertium genus is an expression of law used to comment on a “third element”.

The possibility of giving the right to lovers also raised spirits during the discussion. “This issue is resolved in possession, in the action for termination of condominium, never within the scope of family law. If not, we are legitimizing it, creating a family relationship with concubinage. Giving more rights to the mistress or lover than the one who married”, commented Marco Aurélio Bezerra de Melo.

Melo also recalled that the Federal Supreme Court itself has already ruled on the right to lovers. In 2021, the Court defined two theses of general repercussion (529 and 526) that do not recognize rights to parallel unions during the period of marriage or stable union.

In the afternoon of last Friday (5), Giselda Maria Hironaka, Claudia Lima Marques and Maria Cristina Santiago registered apologies to women who are subject to parallel relationships due to the lack of recognition by the Commission of Jurists. Santiago even asked for the vote on the article that dealt with the topic to be opened again, but Luís Felipe Salomão, president of the commission, denied the request.

Polygamy and multiparenthood were also discussed, but there was no progress

Despite being rejected, some jurists defended the inclusion of controversial points in the draft text, such as polygamy and multiparenthood.

“There is a question posed by Professor Berenice, which appears in several articles and which has a connection with the duties of marriage. She understands that fidelity and cohabitation should not be duties arising from marriage, which if voted on resolves six or seven points within the code”, reported rapporteur Rosa Nery.

“If the duty of fidelity falls, we have to overturn the presumption pater is est”, countered José Fernando Simão. The presumption pater is est attributes paternity of the couple’s children to her husband. Dias’ proposal also goes against thesis 529 of the STF, which enshrined “the duty of fidelity and monogamy by the Brazilian legal-constitutional system”. The proposal by jurist Maria Berenice Dias received the support of five other members, which was not enough to be approved.

Maria Berenice Dias also suggested the recognition of multiparenthood in the proposal for the new Civil Code, that is, the recognition of having more than one maternal or paternal relationship on the birth certificate. “No one can take away this freedom to do it. I want my child to belong to a friend and I want more: I want [no registro] May he be the father and we both be the mothers. The Court has recognized this for a long time. I sponsored the court’s first decision recognizing the possibility of this registration in 2015”, defended Dias.

Although some courts have already recognized the possibility of dual paternity or maternity, there is still no legislation that directly allows it. “I am just going to consider that we are adopting multiparenting here, this is something new that needs to be considered”, highlighted rapporteur Rosa Nery. Maria Berenice Dias’ amendment received support from 10 members, but was rejected by the committee.