Aras is in favor of removing “mother” and “father” fields from birth records

The Attorney General of the Republic, Augusto Aras, gave a favorable opinion last week to an amendment to forms, records and public documents in Brazil that meets the demands of LGBT groups. Among the changes are the possibility of exchanging the titles of “mother” and “father” for “filiation 1” and “filiation 2”.

The opinion was given in the scope of the Claim of Non-compliance with a Fundamental Precept (ADPF) 899, filed by the Brazilian Association of Lesbians, Gays, Bisexuals, Transvestites, Transsexuals and Intersex (ABGLT) at the Federal Supreme Court (STF). Minister Gilmar Mendes is the rapporteur for the case, which has been pending at the STF since November 2021. The trial is not foreseen in the Court’s calendar for the first half of the year.

The ABGLT asks that public forms and databases “respect the gender identity of the parents, contemplating the possibility of double parenthood by people of the same gender”, and that any type of record that does not contemplate this demand be declared unconstitutional. The organization wants public bodies to stop requiring the expressions “father” and “mother” in the fields intended for information on affiliation.

In his statement, Aras states that “homotransparental families will receive the same legal protection given to heteronormative family configurations, including adequate gender designation in documents and official forms”. “The legal recognition of different family configurations is a measure that promotes human dignity”, observes the PGR.

According to him, there is a “sociological evolution of the concept of family”, centered “on the notion of affectivities”. This, according to Aras, demands that public records follow “the new family formats recognized by doctrine, legislation and jurisprudence”.

The text of the Constitution and the Civil Code make several explicit mentions of “man” and “woman”. But, for Aras, since when the STF recognized stable homoaffective unions as valid, the interpretation of the use of these terms has gained another direction. The Supreme Court’s guidance was directed towards the fact that, in the current constitutional order, affection is the foundation of family relationships and a vector for analyzing possible disagreements and rights”, states the PGR.

Aras recommends that the Supreme Court accept ABGLT’s demands, and that official forms and documents “respect parental gender self-identification” – preserving, however, information about the person’s biological origin – and contemplate “the possibility of parenting by two people of the same gender”. In cases where the biological mother is not going to exercise the maternal function and that the adoptive paternity is exercised by people of the same gender, the RMP recommends replacing any references to the biological mother with “parturient”.

Judicial activism in the same-sex marriage decision caused a domino effect that is difficult to reverse

For lawyers consulted by People’s Gazette, the judicial activism that allowed, without deliberation by Congress, the same-sex marriage in Brazil, in 2011, caused a domino effect difficult to be reversed in the Brazilian Justice. The explicit references to “man” and “woman” in the Constitution and the Civil Code ceased to be valid, in practice, for the Judiciary, which facilitated an anarchic reading of the very concept of family.

“In 2011, they ended up interpreting the Constitution the way they would like it to be written, with the provision for same-sex unions. But that is not what is written”, says professor of Constitutional Law Tadeu Nóbrega, Master in Law from PUC in São Paulo.

“A pseudoscience has tried to promote the end of the division of the sexes between man and woman. It is a denial of biological reality itself. They deny the existence of men and women. This goes beyond reading the Constitution itself. From a legal point of view, there is serious harm in failing to consider men and women as different realities. From the biological, social point of view, there are differences between men and women. And that needs to be respected”, says Nóbrega.

In 2015, as a direct consequence of the 2011 decision, the STF defined that gay couples could adopt children without age and sex restrictions. In the 2011 judgment, the then Justice Ayres Britto had already made a point in this regard, when he said in his vote that “the isonomy between heterosexual couples and homoaffective couples only gains full meaning if it leads to the equal subjective right to the formation of an autonomous family” .

If the STF follows the trend of recent years, the probability of changing public records and documents to meet LGBT demands is high. Other claims that shuffle family configurations could arise from there. For André Gonçalves Fernandes, postdoctoral fellow in Philosophy of Law, Epistemology and Philosophical Anthropology and author of Family Philosophy: the family as it is (2022), the next piece of this domino effect could be, for example, the recognition of “trisals”, that is, unions of three people.

In 2018, the National Council of Justice (CNJ) suggested that notaries suspend public deeds involving relationships between more than two people until the matter is regulated. The recommendation came after representation of the Association of Family and Succession Law (ADFAS), which asked for the prohibition of the recognition of “trisais”. “I don’t know how long it lasts there. My perspective is that, for whatever reason, including that of ‘reasons of human dignity’ (cited by the PGR in its most recent manifestation), this will eventually pass.”

For Nóbrega, “as everything becomes family, we have a weakening of what the family really is, with its purposes, whether to unite the man and the woman, or the purpose of leading to procreation and also to make with that people grow up in a safe and healthy environment”. In his view, human dignity, used as a justification for the approval of different family configurations, ends up being “diminished and harmed”.

As the centrality of affection, cited by Aras, is harmful to the role of the family in society

The idea that the concept of family is centered above all on the notion of affectivity was repeatedly expressed by Aras in the opinion. Gonçalves Fernandes states that the excessive praise of affection in our society is harmful to family structures.

For the specialist, the fact that two people establish relationships based on affective ties does not serve, in itself, to justify such an active role of the Judiciary in raising the bond of these people to the condition of family. He points out that conjugal and family love is not a mere expression of affection, but must go hand in hand with will and reason. A regulation on the family based on the affective dimension of the human being tends towards irrationality and the satisfaction of particular desires instead of the common good.

“Instead of employing a public or publicizing notion of the family – in the sense that it is comprehensible, and serves the common good and a series of principles of solidarity, justice, the common good, that is, a series of principles that shed light on all social action in each of us – they basically begin to endorse privatizing, very particular conceptions of the family, which do not meet any of these principles of solidarity, the common good and justice. They are much more whims of groups or sectors that want a judicial seal to standardize a posture”, says Gonçalves Fernandes.