Proposals in the new Civil Code bring risks to parental authority

The report on the draft of the new Civil Code – prepared by a commission of jurists convened by the president of the Senate, Rodrigo Pacheco, and about to be processed in the House – brings a series of risks related to the weakening of parental power for ideological purposes. Although they do not explicitly mention left-wing ideologies, some provisions provide a clear breach, according to jurists, to the ideological actions of judges, members of the Public Ministry and guardianship counselors interested in subverting the concept of family.

One of the risks is in adopting the concept of progressive autonomy of children and adolescents, foreseen in a new article that says:

The progressive autonomy of children and adolescents is recognized, and their will must be considered in all matters related to them, according to their age and maturity.

For jurists, the expression “progressive autonomy” opens up space for broad and subjective interpretations. “They are developing people, who often do not have the life experience to be able to decide about themselves, about their own interests. It seems reckless to me to recognize this progressive autonomy and resort to vague expressions”, says lawyer Venceslau Tavares Costa Filho, professor of Civil Law at the University of Pernambuco.

Another nebulous expression related to the relationship between parents and children is that of “psychological violence”, present in article 1,638 of the report of the commission of jurists. The provision states that a father or mother who:

Subjecting the child to any type of violence, in a way that compromises their physical, moral or psychological integrity.

“Would not letting children watch television be psychological violence? Would not letting them spend time on their cell phones be psychological violence?” asks Costa Filho. “It would be necessary to define what characterizes psychological violence, moral violence, so that we could consider applying this type of sanction to parents”, he adds.

He also recalls that “our system needs precedence to establish a penalty.” “It is necessary for us to define the conduct that leads to the application of this penalty, and [na proposta] We practically have a blank criminal law, a norm that creates a blank type of punishment, without clearly defining what this psychological violence would be”, he states.

Litigation between parents and children is encouraged by the proposal for the new Civil Code

Another controversial point in the proposal for the new Civil Code is a section of article 1691 proposed by lawyer Flavio Tartuce, one of the proposal’s rapporteurs, which was not accepted by the other rapporteur, Rosa Nery. The device states:

At the end of parental authority, children may, within a period of two years, demand from their parents an accounting of the administration they exercised over their assets, with the parents being liable, whether due to intent or fault, for the losses they suffered.

Jurists see in this text a loophole so that, when they reach the age of majority, some children demand accountability from their parents for the way they managed their assets. Innovation is especially dangerous in cases in which parents have decided to advance inheritance to their children.

For lawyer Regina Beatriz Tavares da Silva, president of the Association of Family and Succession Law (Adfas) and doctor in Civil Law from USP, the device seems inspired by the case of actress Larissa Manoela, and is worrying due to its potential to encourage conflicts legal proceedings between parents and children.

Costa Filho also sees the chance that the device proposed by Tartuce will cause harm to family relationships. “It’s a rule that encourages litigation between parents and children. I don’t think it’s a welcome rule. If someone else manages an asset that is mine, there is already an accountability action for that. I really don’t understand why predict this right specifically for children in relation to their parents. I think this ends up encouraging litigation between parents and children, which is not interesting, especially in a context like today, in which the Judiciary and the CNJ encourage so much pacification, self-composition and dialogue between the parties to reduce this intervention by the Judiciary, as a representative of the State, in private relations”, he comments.

Gender ideology has already benefited from the weakening of parental power in other countries

The proposal from the commission created by Pacheco, if approved, could have implications regarding the influence of gender ideology in Brazil. In countries where theories of this type are most advanced, the threat to parental power usually opens the way, for example, to facilitate sexual reassignment surgeries for minors.

Although the report does not openly address the issue or make direct mention of it, the text leaves room for a context in which parents’ refusal to consent to their children’s wishes at this point could result in the loss of parental power, with the influence of the Ministry Public, schools and guardianship counselors, as is already the case in richer nations.

In the United States, for example, the Indiana Department of Children’s Services decided to remove the son of couple Mary and Jeremy Cox from their home, citing concerns for the child’s well-being. In 2019, according to the New York Post, the Cox’s son went on to say that he identified as a girl. The parents did not agree to refer to him using pronouns and a name inconsistent with his biology. In 2021, following a tip, Indiana authorities began investigating the Coxes and removed the teenager from their custody.

A similar case has already occurred in Canada, where, in 2021, a judge of the Supreme Court of the province of British Columbia issued an arrest warrant against a father who called his daughter female using female pronouns after she began undergoing treatment to change her gender. gender. The treatment was carried out with testosterone injections without the father’s consent.

The prediction that children would have “progressive autonomy” and that parents could lose power over them in the event of psychological violence, present in the draft report of the new Civil Code, would be an open door for the same to occur in Brazil. Members of the MP and guardianship councils influenced by ideological orientations of the same type could use the new rules to remove parents from caring for their children.