Procedural Posture

LMBG filed a petition with a lower level court to adopt LRM’s children and the court granted the adoption. The Public Prosecutor’s Office appealed but the intermediate court affirmed the adoption order. The Public Prosecutor’s Office then appealed to the Superior Court of Justice.


LMBG and LRM were two women who had been in a relationship since 1998. In 2002 and 2003, LRM adopted two boys. LMBG and LRM raised the children together, although LMBG was not recognised as a legal parent.


Whether, in the absence of legal recognition of a same-sex relationship, the partner of an adoptive parent could be granted second parent adoption rights.

Domestic Law

Constitution of Brazil, Articles 3 (providing that one of the objectives of the State was to promote everyone’s well-being, without prejudice as to origin, race, sex, colour, age or other forms of discrimination); 226(3) (“For purposes of protection by the State, the stable union between a man and a woman is recognised as a family entity, and the law shall facilitate the conversion of such entity into marriage”); 227 (“It is the duty of the family, the society and the State to ensure children and adolescents, with absolute priority, the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom and family and community life, as well as to guard them from all forms of negligence, discrimination, exploitation, violence, cruelty and oppression”).

Federal Law No. 10406 of 10 January 2002 (Civil Code), Articles 1622 (“Nobody can be adopted by two people, unless they are husband and wife, or if they live in stable union”), 1723 (recognising a family entity as the stable union of a man and a woman), and 1724 (“Personal relations between the partners will follow the principles of loyalty, respect and care and custody, maintenance and education of children”).

Federal Law No. 8069 of 13 July 1990 (Children and Adolescents), Article 41 (providing that adoption gives the adopted child rights and duties, including succession rights, and releases the child from any link with parents and relatives); Article 42(2) (providing that in joint adoption, the adopters must be married civilly or maintain a stable union, proving the stability of the family); Article 43 (providing that adoption will be granted when there are real advantages to adopting and the advantages are based on legitimate grounds).

Federal Law No. 12.010 of 3 August 2009, Article 1 (“This Law provides for the improvement of the guaranteed right to family life for all children and adolescents, as stipulated by Law 8069 of 13 July 1990”), and Article 8 (revoking Article 1622 of Law 10406).

REsp 1.026.981, Superior Court of Justice, , 2010 (post mortem pension to same-sex partner).

REsp 238.715, Superior Court of Justice, 2006 (stable same-sex union and health benefits).

REsp 24.564, Superior Court of Justice, 2004 (stable same-sex union and family unity).

International Law

Universal Declaration of Human Rights, Article 2 (non-discrimination).

Comparative Law

Loving v. Virginia, United States Supreme Court, 1967 (holding that bans on interracial marriage are unconstitutional).

Reasoning of the Court

The Court began by rejecting a strict interpretation of Brazilian statutory law. It stressed that legal interpretation may and should evolve over time. As examples, the Court noted that Brazil had historically outlawed public nudity at the beach and that the United States had outlawed interracial marriage. The Court held that its legal interpretation should always be influenced by the concept of universal human rights as expressed in the UDHR and Article 3(IV) of the Constitution. By allowing the UDHR and the Constitution to guide legal interpretation, Brazilian courts would ensure that their decisions were not influenced by quickly changing social norms. In addition, the UDHR and the Constitution protected minority groups whose rights might be contravened were public opinion to be permitted to trump principles of human rights and non-discrimination.

The Court found that two facts were crucial to its decision. The first was the nature of LMBG’s relationship with the children. She had lived with them since they were infants, and she and her partner had raised them together as parents. The four of them lived together in harmony. The second was the fact that Brazilian law provided no mechanism for recognising a parent’s same-sex partner as the children’s second legal parent. The Court found that the first fact was important enough to overcome the obstacles presented by the second.

Reading Article 1 of Law 12.010 (guaranteeing the right to family life for all children) together with Article 227 of the Constitution, the Court held that the best interests of the child were paramount over any other consideration in a case involving children. Article 43 of Law 8069 provided that an adoption would be granted when it had clear benefits for the child and when such benefits were based on legitimate grounds. The Court found that the strong emotional bonds between LMBG and the children were a clear advantage.

The Court also cited the decision of the lower court. “It is time to abandon hypocritical attitudes and preconceptions devoid of scientific basis and adopt a strong posture in defence of the absolute priority, constitutionally guaranteed, of children and adolescents’ rights.” According to the Court, because the children had lived with both women since birth, any decision that refused adoption would withdraw from the children their right to full protection. Refusing the adoption would, for example, prevent the children from claiming inheritance rights to LMBG’s estate. Additionally, if LMR died, the children would lose their right to live with LMBG, effectively creating “orphans with a living mother”. Similarly, if the couple separated, LMBG would have no legal right to continue being their mother. More concretely, the children would lose immediate benefits, included the possibility of being enrolled in LMBG’s health insurance plan. Furthermore, as a university professor, LMBG could assure the children secondary and higher education.

Finally, the Court stated that the applicant’s attitude represented an act of love. “The adoption, when claimed to provide the child’s well-being, as in the present case, is a gesture of humanity.” The adoption order was upheld.

 full text of judgment forthcoming

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