CNJ manual encourages voluntary delivery of children for legal adoption

CNJ manual encourages voluntary delivery of children for legal adoption

The National Council of Justice (CNJ) launched a manual on the voluntary surrender of children for legal adoption, based on CNJ Resolution No. 485, due to Adoption Day, celebrated this Thursday (25). With about 60 pages, the manual deals with the adequate care of pregnant or parturient women who express the desire to give their child up for adoption.

Giving a child up for adoption is provided for by law and is considered the best way for mothers who are unable (economically, psychologically, etc.) to care for and raise their children after giving birth. The Child and Adolescent Statute (ECA) brings provisions on the subject in articles 18 and 19. The ECA, Law nº 8.069/90, presents changes promoted by the so-called Adoption Law, Law nº 13.509/17.

Due to the lack of information, many women are afraid of being penalized for delivering the baby within the limits of the law. The case of actress Klara Castanho last year reignited the debate on the subject in Brazil. She revealed that she was raped, had the baby and gave the child up for legal adoption.

In order to avoid embarrassing these women, the CNJ published a manual in which it reinforced the role of the Judiciary in assisting them, their children and pregnant adolescents, especially rape victims who wish to give their children up for adoption.

The document was developed by the National Forum for Children and Youth, with the collaboration of various public agencies and civil society organizations.

According to the council, voluntary delivery seeks to prevent the abandonment of newborn children in precarious conditions or the delivery of babies and minors to third parties in breach of the law.

Data from the CNJ reveal that, annually, about a thousand women give their babies up for adoption. In 2021, 1,238 opted for the process, while in 2020 there were 1,012.

Voluntary delivery process

The voluntary delivery process is confidential and must follow the judicial procedures so as not to be classified as a crime, when a child is given up for adoption for financial purposes, for example.

Indication of people interested in adopting is not allowed, avoiding the trafficking of children or the sale and purchase of babies. But the document provides that this does not apply “when it comes to a close blood relative with whom he maintains bonds of affinity and affection”. If a parent or member of the extended family is not indicated, “the child will be forwarded to an entity that develops a family or institutional shelter program and, after the expiry of the period for repentance, to the first applicant on the list of the National Adoption (SNA).

The woman who opts for legal adoption must seek Justice, in which the procedure will be processed with priority and in secrecy, avoiding embarrassment to the mother. It will be evaluated whether the woman’s manifestation of will is the result of a mature and conscious decision or determined by the lack or failure to guarantee rights.

According to the CNJ resolution, it will also be analyzed whether the woman was guided on protection rights, including the option of abortion – the procedure is a crime in Brazil, but there are three situations in which there is no punishment for those who practice it (risk death of the mother, pregnancy resulting from rape and anencephaly of the baby). By including the term “legal abortion”, the CNJ gives rise to what the Judiciary has been defending about women not being held responsible for choosing to kill a baby.

The CNJ manual also says that it will be evaluated whether psychosocial and socio-assistance support was offered to the woman. The objective is to prevent sociocultural and socioeconomic factors from impeding decision-making.

After the expression of interest in the delivery, the woman is referred to the Childhood and Youth Court to formalize the judicial procedure and will be assisted by an interprofessional team. She should also be informed that, despite the secrecy, the child’s right to know her biological origin will be guaranteed.

The mother will still have the right to leave information and records that favor the preservation of the child’s identity – whether about the family history, the pregnancy and her decision to deliver, or about data that may be useful to the child’s caregivers, such as those relating to the health history of the family of origin.

Support for rape victims

In the manual, the CNJ reinforces that the woman victim of rape has the right to voluntarily hand over the child for adoption – if she so wishes. However, it advises the professionals responsible for this reception to verify “whether the pregnant woman had the right and the opportunity to decide to terminate the pregnancy [aborto] or to decide for continuity”.

In case the pregnant woman chooses to have an abortion, the manual states that the professional must guide her to seek health services before the 20th week of pregnancy (5 months), “to enable the right to perform procedures in the hospital environment safely ”.

“In addition to the consultations carried out by the interprofessional team of the judiciary, the pregnant woman will be referred to the services specialized in violence, of the health and assistance network, as long as necessary, guiding the team to inform the judiciary if there is attendance at the service”, explains the CNJ

In the case of a pregnant child or adolescent, the procedure indicated by the CNJ is that the minor be accompanied by a legal guardian during the interprofessional team’s approaches, if there is no request for secrecy. “If there is secrecy, the judge will designate a special curator, who will accompany the child or adolescent”.

The council also asks for verification of respect for secrecy in case of pregnancy resulting from a crime and whether the pregnant woman was advised on protection rights, including abortion. Voluntary delivery was considered in the case of the 11-year-old girl in Santa Catarina. The family discovered the pregnancy after the 22nd week and went to court to perform the abortion. Judge Joana Ribeiro Zimmer, who was in charge of the case, asked, in a hearing, if the girl would accept to continue with the pregnancy for just a few more weeks, so that the baby would have more chances of surviving outside the womb. The girl agreed with the proposal, but the family sought support from the Federal Public Ministry (MPF) so that she could terminate the pregnancy. The body recommended that the fetus be removed – regardless of the gestational period.

Faced with pressure, the hospital, which had initially refused to perform the procedure – reported that the institution’s rules only allow abortions to be carried out up to the 22nd week – ended up relenting and the “pregnancy termination” was carried out on June 23. The pregnancy was in the 30th week, that is, seven months.

Adoption is an option to avoid abortion

The act of delivering a baby for adoption is seen as a way to avoid abortion in the country and reinforces the greatest of rights: the right to life. This is how pro-life movements position themselves on the subject.

In Brazil, there are several entities that welcome pregnant women who do not want to continue a pregnancy, encouraging the voluntary delivery of the baby. Women receive emotional and psychosocial support and are prevented from having an abortion.

The Center for Restructuring for Life (Cervi), located in São Paulo, is one of the institutions in Brazil that provides this service of support and care for women and their families who experience violence or unexpected pregnancy. The founder of Cervi, Rose Santiago, emphasizes that encouraging voluntary delivery is a way to prevent pregnant women from having an abortion.

“This initiative by the Judiciary to give birth to voluntary delivery is very important, because the pregnant mother has doubts about whether it is a crime or not to give it up for adoption – on the contrary, it is an act of courage. I believe it will bring about a paradigm shift for the adoption in Brazil”, he points out.

Rose also points out that it is important to have a support network, so that the woman does not feel judged when making the decision to give the child up for legal adoption. “We need to make this support viable and show the woman, because it is important that she does not feel judged, but accompanied and respected. This process needs to be humanized”, she says.

And she adds: “Voluntary delivery is an act of courage much greater than abortion, because in abortion the woman sees herself “free of the problem”, but she carries the problem with her her whole life. So we need to encourage mothers and show that they will be embraced and welcomed”, stresses Rose, from Cervi.

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