The multi-parenthood recognized by general repercussion: meaning, problematic and critical to the decision given and its consectarians in the legal system

DOI: 10.32749/nucleodoconhecimento.com.br/law/general-repercussion
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CONTEÚDO

ORIGINAL ARTICLE

REBELATO, Daniela Rocegalli [1], ABREU, Eduardo João Gabriel Fleck da Silva [2]

REBELATO, Daniela Rocegalli. ABREU, Eduardo João Gabriel Fleck da Silva. The multi-parenthood recognized by general repercussion: meaning, problematic and critical to the decision given and its consectarians in the legal system. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 06, Vol. 04, pp. 142-161. June 2021. ISSN: 2448-0959, Access Link: https://www.nucleodoconhecimento.com.br/law/general-repercussion, DOI: 10.32749/nucleodoconhecimento.com.br/law/general-repercussion

ABSTRACT

This article deals with the recognition of multi-parenthood by the Federal Supreme Court (STF)[9] in the case file of Extraordinary Appeal No. 898.060/SC, under a general repercussion regime (Theme 622). The concept of multi-parenthood is approached in proemium. Next, it is about the concept, nature and effects of the general repercussion. Based on these premises, we enter into the analysis of the judgment of Extraordinary Appeal No. 898.060/SC, taking an approach to the history of the case and the debates and grounds of the decision given by the STF and the thesis of general repercussion fixed. A brief exdisplay and analysis of the receipt of that decision by the lower courts is made from subsequent judgments. Finally, a critical analysis of the Supreme Court’s decision is undertaken, analyzing whether there was the correct use of the institute’s general repercussion and legal issues created or remaining from that decision.

Keywords: Multi-parenthood; General Repercussion; Supreme Federal Court; Extraordinary Appeal No. 898.060/SC; Thesis 622/STF.

1. INTRODUCTION

multi-parenthood has always been among us. It is a social fact that has long surrounded the families of Brazil. However, due to the remnants of hierarchization of affiliation that, for years, was expressed in legislation, socioa ffective affiliation was still considered as a second-class bond.

In fact, were it not for the judgment given by the STF in Extraordinary Appeal No. 898.060/SC which, through general repercussion, approved Thesis 622 and formally admitted the accumulation of biological and socioa ffective bonds, we would still be orphans.

However, even if such recognition was imperative, much is discussed about the adequacy of the paradigm elected by the Supreme Court for the purposes of general repercussion and whether, in fact, the requirements for its fit were met.

The doctrine and jurisprudence have been debating since the approval of Thesis 622 by the STF also with regard to the effects arising from this trial. Would this thesis have generated more legislative loopholes than before its approval? Can the lack of compliance with the requirements of the general repercussion may be the cause of possible gaps?

To achieve this purpose, the present work approaches, first, the theme of multi-parenthood, seeking to understand its concept and content.

Then, to understand the impacts of the Decision of the STF, it is necessary to address what a judgment in general repercussion means and what its reverberations mean. This is what will be addressed in the second and third chapters.

Then, it will be necessary to address the decision of the STF itself, given in the middle of the aforementioned Extraordinary Appeal No. 898.060/SC, judged in a general repercussion regime, giving rise to the fixation of Thesis 622. To this end, the circumstances of this paradigmatic case and the discussions that involved it will be explained.

Continuous act, it will be necessary to analyze how this precedent of the Supreme Court was received and applied by the lower courts, in order to understand whether Thesis 622 was sufficient to resolve the controversies on the subject.

Finally, the critical approach of the decision and its effects is made, seeking to answer the questions formulated.

2. OF MULTI-PARENTHOOD

Before entering the analysis of the paradigmatic decision given by the STF in the judgment of Extraordinary Appeal No. 898.060/SC, as well as the effects of its judgment in general repercussion, it is imperative to address the concept of multi-parenthood – object of recognition in the aforementioned decision.

Multi-parenthood is based on the possibility of concomitance of biological and affective bonds. This institute allows an individual to have two fathers or two mothers or two fathers and two mothers, perhaps even more.

For years the concomitance of these bonds was not allowed in our order and the jurisprudential analysis proves that affective parenthood overlapped with the biological bond in cases of total non-existence of affection between the genetic parent/ascendant and the child.

Eduardo de Oliveira Leite (2000) makes an important distinction between the roles of genetic parent/ascendant and father, emphasizing that the current legislation confused and equaled such notions that may even be coincident, but can also present in different individuals. He stresses that “… there are two truths in terms of sondom: the biological – that of the bonds of blood – and the truth of the heart, of feelings – to which corresponds to the sonity, dear, desired, experienced in the day-to-day life of an existence” (LEITE, 2000)

The importance of understanding the distinction of these roles is bequeathed by Paulo Lobo (2003) since the state of affiliation departing from affective ties “constitutes an essential foundation for the attribution of paternity or motherhood” distancing itself from the individual’s right to know the genetic origin. In fact, “these are two distinct situations, having the first nature of family law and the second of personality law” (LOBO, 2003). The nature of family law is based on the legal requirements of membership and the incidence of its legal effects, while knowledge of genetic ancestry relates specifically to the child’s right to know its origin, in the dimension of personality rights, without necessarily leading to other legal effects which will be limited to the institute of affiliation.

This dissociation between genetic ascendant and affiliation was the subject of discussion during the judgment of the Extraordinary Appeal that will be detailed below, especially in the divergent vote of Minister Edson Fachin – for whom it is clear the distinction between such roles – but did not consist of the Ementa do Acórdão, as well as the Thesis 622 approved in general repercussion and that inserted multi-parenthood into the legal system. Several authors focus on the difference between the genetic ascendant, the parent, and the father – the one who dedicates himself to the creation of the child, and may or may not be confused, but not necessarily. However, considering that such discussion was not welcomed by the other Ministers and was left excluded from the Ementa do Acórdão and thesis 622, we will make a methodological cut and will not delve into such differentiation – of paramount importance – in this article.

Socio affective affiliation – an objective relationship with legal councils – has constitutional support, with the rupture of the model of affiliation provided for in the Civil Code of 1916, moving to equality between children (art. 227, § 6, of the CF), reaffirmed in the Civil Code of 2002, Article 1,596.

Precisely in view of the valorization of affectivity as a necessary principle for the configuration of the affiliation that was born art. 1593 of the Civil Code of 2002[3], having been the object of analysis in several “Days of Civil Law”, with the confirmation that civil kinship covers socio affective parenthood in all its aspects, including with regard to custody and feeding obligation.[4]

Christiano Cassettari (2015) brings the definition of socio affective parenthood in a clear and simple way: they are people who live together “as if relatives were”, but without any biological link that unites them, only the affective connection, and that multi-parenthood is, precisely, the equality between such parenthoods – biological and affective – without any hierarchy, with what agrees Rodrigo da Cunha Pereira (2015) including, also, the possibility of this kinship bond being “constituted by multiple parents”.

Cases of multi-parenthood may also include the stepfather/stepmother and stepson relationship or assisted reproductions[5] that can count on “the participation of two or more people in the reproductive process, such as when the genetic material of a man and a woman is processed in another woman’s uterus” (PEREIRA, 2015).

In fact, socio affective parenthood is based on the assumption of the existence of affection among individuals, from which the contemporary Family Law emerges, where affection and love are valued among those who make up the family nucleus as one of the ways to the realization of constitutional principles, such as the dignity of the human person and the consequent search for the happiness that is extracted from it.

The principles of the dignity of the human person and the pursuit of happiness, for some indoctrinators also a constitutional principle derived from the previous one, are among the foundations of the decision given by the STF in said Extraordinary Appeal No. 898.060/SC as will be demonstrated below.

3. OF THE GENERAL REPERCUSSION

As stated, the STF recognized the institute of multi-parenthood in the judgment of Extraordinary Appeal No. 898.060/SC. The appeal was judged under the regime of general repercussion, constitutional procedural institute introduced by Constitutional Amendment No. 45/2004, known as “Judicial Reform”, through the insertion of § 3 in art. 102 of the Constitution of the Republic.

The fact that the trial occurred in extraordinary appeal with general repercussion is of fundamental relevance for understanding the impacts of this decision on the national legal system. This is because the general repercussion brought unusual innovations in the recursive role of the STF, either seeking to reduce the number of cases that arrive at the Court through a filtering mechanism, or by aiming to grant ampyeffects to the decision given.

Thus, it has been that the decision on multi-parenthood becomes even more relevant because it was taken under a general repercussion regime, thus reverberating about the interpretation and application of the norms on family law and also in its consectarians.

In order, unlike American law, the doctrine of the “stare decisis” was not accepted in the National Order, which advocates the binding of the judicial bodies to the precedents, nonetheless in relation to those signed by higher-hierarchy bodies. Thus, the tradition of the “inter-parts” effect of the decision and the broad power granted to judges and courts to judge unconstitutional law undermined the exercise, by the STF, of its role as the supreme body of the Judiciary, in charge of being the standardizer of jurisprudence and law. Furthermore, the lack of mechanisms for the selection of the most relevant cases to be tried and the adoption of analytical constitutions gave rise to an excess volume of cases in the Supreme Court.

Founded on the doctrine of António Castanheira Neves, Professor Luiz Guilherme Marinoni (MARINONI; MITIDIERO, 2012) points out that the role of the governing body of the judiciary should be to promote the unity of law from two perspectives: “compatibilization of decisions” (retrospective unit) and “development of new solutions to social problems” (prospective unit). To comply with this, it argues that the governing body should only examine the cases of greatest impact.

Faced with concern about the overload of the Supreme Court, the reform of the Judiciary promoted by Constitutional Amendment No. 45, of 12/30/2004, introduced the institute of “general repercussion” as a requirement to access the extraordinary recursion jurisdiction of the STF, aiming to end the recursive system of very admissibility. Thus, Paragraph 3 was inserted to Article 102 of the Federal Constitution, stating that: “the applicant must demonstrate the general repercussion of the constitutional issues discussed in the case, in accordance with the law, so that the Court examines the admission of the appeal […]”.

As far as the legal nature is, the office of the general repercussion consists of a requirement for admissibility of the extraordinary appeal, exercising a function of recursal filter (TAVARES et al., 2005). Accordingly, once the existence of general repercussions is denied, there will be a negative follow-up of the appeal brought. In this sense, it stipulates article 322 of the Internal Rules of the STF (RISTF) that: “The Court will refuse extraordinary appeal whose constitutional issue does not offer general repercussion”.

Determining, however, what would be the content of the general repercussion would not generate exact results, given the vagueness and inaccuracy of the expression. It follows that it is up to the STF itself to “unblock the true meaning of the institute” (VIANA, 2010), deciding which cases would fit this criterion. This discretion is not absolute, since Article 102, § 3, of the CF[10] provided that the demonstration of the general repercussion must occur “in accordance with the law”, assuming that the legislature provides beacons for understanding the meaning of the general repercussion.

In principle, the federal legislature, through Law No. 11,418/2006, which added the arts. 543-A and 543-B and their respective paragraphs to the previous Code of Civil Procedure, provided that: “for the purposes of general repercussion, the existence, or not, of issues relevant from an economic, political, social or legal point of view, which go beyond the subjective interests of the cause, shall be considered” (§ 1 of Art. 543-A). In the current Code of Civil Procedure, § 1 of Article 1,035 maintained the notion: “For the purpose of general repercussion, the existence or not of relevant issues from the economic, political, social or legal point of view that go beyond the subjective interests of the process will be considered.” From the legal discipline, two characteristics of deep importance are extracted to understand what the general repercussion means: a) relevance and b) transcendence.

Thus, it has been that the general repercussion is a requirement of admissibility of the extraordinary appeal, consistent in the need to demonstrate the relevance and transcendence of the constitutional matter discussed in the case, allowing the STF to filter the issues submitted to it, which can only refuse them by the vote of 2/3 (two thirds) of its members.

According to Paragraph 3 of Article 102 of the Constitution of the Republic, it will be up to the STF itself to examine the existence of general repercussion of the constitutional issue discussed in the proceedings for the purpose of admission of the extraordinary appeal. Unlike what occurred with the claim of relevance of the previous constitutional regime, the negative judgment of general repercussion demands that 2/3 (two thirds) of the members of the Supreme Court decide in this sense. It should be noted that, in the regimental terms, the general repercussion will only be the subject of analysis if the absolute majority of ministers recognize the existence of constitutional matters (art. 324, § 1, RISTF).

Once the existence of general repercussions has been recognised, there should be a suspension of pending proceedings on the same issue (Art. 1,035, § 5). On the other hand, once the general repercussion spree has been decided, the presidents of the courts of origin shall deny follow-up to the extraordinary appeals on the same matter (art. 1,035, § 8, and art. 1,039, sole paragraph). It should be noted that the general repercussion regime also applies to the injury in extraordinary appeal (art. 1,042, § 2).

The decision for the absence of general repercussion is irreparable, and, as a general rule, it applies to all appeals on an identical issue (art. 326, “caput”, of the RISTF). However, it is admitted that, by decision of the rapporteur, the trial is restricted to the specific case analyzed, which, in case of appeal, must be suffraged by 2/3 of the ministers to prevail (art. 326, §§ 1 and 2).

It should be noted that the general repercussion is only one of the requirements for admission of the extraordinary appeal – moreover, the most recent. In addition to compliance with the recursive procedural principles, the appeal of the extraordinary appeal requires its own requirements.

It should be stressed that the hypotheses of the appropriateness of the extreme resource are taxing (points “a” to “d” of item III of Art. 102 of the CF), not being the rediscussion of facts and evidence (Summary No. 279/STF) nor the analysis of local legislation (Summary No. 280/STF). Furthermore, it should be emphasized that item III of Art. 102 of the Federal Constitution provides for the requirement of the “decisive cause”, which means that the constitutional issue must have been debated in the judicial body of origin (pre questioning), and cannot know the Supreme Court on an original basis.

Moreover, because of the devolutive effect of the appeals, there is a need for a correlation between the application made and the decision given, which is subject to the chapters of the contested decision contested by the applicant. Thus, it is intended to avoid the delivery of decisions “citra”, “ultra” or “extra petita”.

4. THE EFFECTS OF THE DECISION AND THE OBJECTIFICATION OF THE EXTRAORDINARY APPEAL

Recognizing that the theme of multi-parenthood had constitutional relevance and transcendence, the STF understood the existence of general repercussion in Extraordinary Appeal No. 898.060/SC, admitting it and prosecuting it. Thus, once the admissibility phase has expired, the scope becomes the provision of a decision able to standardize the understanding on the issue, under penalty of minimizing the role of the STF of the supreme body of the judiciary’s governing body and the first guardian of the Federal Constitution.

In this sense, the Supreme Court’s decision on the recognition of multi-parenthood, once taken in a general repercussion regime, gains remarkable relevance in view of the expanded effects that the decision of the recursal merit begins to have in the Order, with unusual consequences for family law and successions.

The general repercussion had the power to change the legal face of the extraordinary appeal, enhancing the effects of the decision. The notion of resolving demands involving the litigant parties was abandoned to cover all the demands of equal content. The extraordinary appeal ceased to be a mere instrument of preponderant defense of subjective rights, reinforcing its role of defense of the hygiene and unity of the Constitutional Text, having its judgment transcendent effects.

In fact, it is known that, traditionally, in the Brazilian system, diffuse control is recognized by the review of the constitutionality of laws by any judge or court, incidentally and in the specific case, with the decision having effects only between the parties. In this context, the extraordinary resource was seen as a mere procedural instrument aimed at resolving the relationship between the parties involved in the process. In order for the decision of unconstitutionality to reach third parties, it became necessary to issue a resolution by the Federal Senate, pursuant to Article 52, X, of the Federal Constitution, suspending the unconstitutional rule.

It should be noted, however, that even before the creation of the institute of general repercussion, the extension of the effects of the decision given in the order of extraordinary appeal was already discussed, decomposing to recognize its ratio decidendi transcendent effects. Gilmar Ferreira Mendes points out that the STF, although timidly and punctually, had been recognizing situations of transcendence of the effects of the decision, reaching third parties who did not make up the case, as in cases of progressivity of the Tax on Property and Urban Land (IPTU)[11], municipal rate of public lighting, municipal rate of public cleaning and even exemption from application of the plenary reservation clause, provided for in Article 97 of the Constitution, for the declaration of unconstitutionality of law when there was already a pronouncement of the Supreme Court in this sense (MENDES, 2004). Added to this, too, the paradigmatic decision taken in RE No. 197,917/SP, through which Excelso Pretório decided on calculating the number of councilors in municipal legislatures, generating impacts beyond the concrete case.

It has been the case that there is no recent defense of granting effects transcendent to the decisive reasons of the decision given by the STF in subjective proceedings. With the creation of the general repercussion, then, an effect of rationalization of the judicial system is recognized, in view of the systematic judgment of paradigm cases and reduction of the distance between diffuse and concentrated control (CARVALHO FILHO, 2015). In the judgment of the extraordinary appeal with recognized general repercussion, there is the abstraction of the concrete case submitted to the Court with a view to deciding the constitutional issue regarded as transcendent and relevant, and, by consectarian, establishing a jurisprudential orientation that can solve the other processes that discuss the same matter (CARVALHO FILHO, 2015). It is, therefore, an “overcoming of the subjectivist emphasis” of the extraordinary resource, which now has a scope of defense of objective law, so that the STF simply fails to judge “inter partes” quezílias to devote itself to solving relevant constitutional issues (VIANA, 2010). This understanding seems to have been positive in art. 998, the sole paragraph, of the Code of Civil Procedure, according to which: “The withdrawal of the appeal does not prevent the analysis of an issue whose general repercussion has already been recognized (…)”.

In this new system, it is necessary to recognize that the judges of the STF in general repercussion regime do not have mere persuasion effect in relation to the higher instances, starting to enjoy a certain power of binding. In this sense, it is appropriate to file a complaint “to ensure compliance with an extraordinary appeal judgment with recognized general repercussion or judgment delivered in judgment of extraordinary or special repetitive appeals”, provided that the ordinary bodies are exhausted (Art. 988, § 5, II, CPC). It should also be noted that the judgment delivered in extraordinary appeal heard by the system of repetitive appeals must be observed by the judges and courts (Art. 927 CPC). Furthermore, the president of the court “a quo” may deny follow-up to an extraordinary appeal when the appeal decision is in line with the understanding of the Supreme Court in accordance with the regime of general repercussion (art. 1.030, I, “a”, of the CPC), or, then, return to the judging body to carry out the judgment of withdrawal if the respective judgment diverge from the understanding of the Supreme Court in general repercussion (art. 1.030, II, do CPC).

The understanding of the effects of the decision given in general repercussion demonstrates the relevance of the judgment of Extraordinary Appeal No. 898.060/SC by the Supreme Court, since the court’s understanding should now mark the judgments of national judges and courts on the subject of multi-parenthood, directly impacting the legal discipline of family law and succession.

5. THE DECISION OF THE SUPREME FEDERAL COURT IN EXTRAORDINARY APPEAL No. 898.060/SC: LEGAL RECOGNITION OF MULTI-PARENTHOOD

The judgment of Extraordinary Appeal No. 898.060/SC, in 2016, by the STF was a milestone for Brazilian Family and Succession Law, especially for legitimization of all forms of family and affiliation existing in the technical plan, but that were not sheltered in the legislation. Multi-parenthood, as detailed in the previous topic, was, and still is, a social fact that required formal recognition, in order to enable the effective recognition that socio affective relationships are as important as biological bonds.

The grounds used by the STF for the judgment of the specific case that led to Thesis 622, with the record recognition of multi-parenthood, there were several, among them the constitutional principles of the dignity of the human person (art. 1, III), the equality of children (art. 227, § 6), responsible fatherhood (art. 227, § 7) and also the right to seek happiness (implicit of the very notion of dignity of the human person).

However, the decision given by the Supreme Court, after a long debate – and valuable divergent vote of Minister Edson Fachin – concluded by the recognition of a framework – the multi-parenthood – that was not pleaded in the specific case for the thesis of general repercussion. Although it is insisting that, when the action was filed in 2003, multi-parenthood was not yet a question discussed in doctrine and jurisprudence, one cannot turn a blind eye to the innovation made by the Supreme Court.

The fact is that the original demand was about investigation of paternity accumulated with rectification of civil record and fixing of food. It means that, despite the existence of a consolidated socio affective bond with the registral father, due to the mother’s omission regarding the biological truth of the author, the request was to rectify the birth seat, provided that the biological bond with the defendant was confirmed, which occurred with the DNA test, and order him to pay maintenance to his daughter.

With the proof of the biological bond between the author and the defendant-parent, the action was judged in the First Instance, with the determination to rectify the author’s birth seat, excluding the socio affective and registral father, with its replacement by the parent, that is, overlapping the biological bond with the existing socio affective bond.

The defendant-parent (genetic ascendant) appealed to the Court of Justice of the State of Santa Catarina for the reform of the sentence, which in fact occurred, by a majority of votes, on the grounds that it was not possible to recognize biological paternity since socio affective paternity was consolidated and duly registered. The Court concluded that only the declaration of genetic ancestry was possible, without the contours arising from the affiliation. However, due to the divergent vote, the plaintiff opposed infringing embargoes which, in the end, were provided for full maintenance of the judgment.

Dissatisfied, the parent filed extraordinary appeal, which was admitted as a paradigm resource, giving rise to Theme 622 of general repercussion, in the context of which would be discussed the “Prevalence of socio affective paternity to the detriment of biological paternity”.

The adequacy of the concrete case for the purposes of general repercussion was a question raised not only among some ministers – surprised by the Thesis presented by the Rapporteur, Minister Luiz Fux, for approval – but especially by the Attorney General’s Office (LOBO, 2021), which questioned the choice of paradigm in view of the requirements necessary for the general repercussion. He highlighted the superior body of the Federal Public Prosecutor’s Office that:

(…) a Corte não pode apenas ser inspirada pelo paradigma: é preciso que a fixação da tese – de grau mais abstrato do que as normas costumeiramente ditadas pelo Judiciário, mas ainda não dotada dos mesmos atributos da abstração da lei – seja decorrência da solução necessária ao caso posto, que deverá ser replicada aos demais que comunguem dos mesmos elementos essenciais, e da fundação dessa não exorbite. É dizer: por mais relevante que um tema seja, não pode a Corte Suprema desde já sobre ele se pronunciar e fixar tese sem que se identifique a necessidade de usa resolução para o deslinde da causa paradigmática.

It seems clear that the Attorney General’s Office did not share the understanding of the general repercussion thesis derived from the trial process. However, Minister Luiz Fux (Rapporteur) did well continue the trial with a focus on the constitutional issue of the general repercussion.

The vote of the Minister Rapporteur was based on the dignity of the human person, especially with regard to the pursuit of happiness and its intimate relationship with the conception of the family; best interest of the descendant; responsible paternity and the right to know of biological origin.

Three main aspects are extracted from the judgment, in line with the understanding set out by Ricardo Calderón (CALDERÓN, 2017): (i) the legal recognition of affection; (ii) the socio-affective and biological bond in equal legal hierarchy; (iii) legal possibility of multi-parenthood and the (iv) principle of responsible parenthood.

However, the divergent vote of Minister Edson Fachin highlighted an aspect of paramount importance: there was no conflict of paternity in the concrete case, that is: when the biological father wants, in fact, to be a father and the socio-affective father, he does not want to stop being so. This would be a real paternity conflict. In the present case, on the other hand, the biological parent/ascendant refused to accept the recognition of the affiliation and its legal consequences.

Minister Edson Fachin ratified the legal possibility of recognizing multi-parenthood, but depending on the analysis of the specific case, emphasizing that “multi-parenthood can only be recognized when expressed in the reality of socio-affection (biological father wants to be a parent, the socio-affective father does not want to stop being so, and this meets the best interest of the child – or is consented by the adolescent” (apud, LOBO 2021, p. 81).

Thus, the thesis proposed by Minister Edson Fachin restricted to the socio-affective bond, duly proven by the possession of the state of child and reinforced by the civil registry, the material effects arising from the kinship bond, with the rights arising from it. It should be restricted, however, to the “personal right to the revelation of genetic ancestry” (apud LOBO, 2021, p. 81).

Despite the discussions, on the recursal merit, by majority, the Extraordinary Appeal was dismissed, with the fixation of Thesis 622 with the following wording: “Socio affective paternity, declared or not in public register, does not prevent the recognition of the bond of concomitant affiliation based on biological origin, with the legal effects of its own”.

It should be emphasized that the principle of responsible paternity was a unanimity in the votes of all Ministers. With the exception of the divergent vote of Minister Edson Fachin, the other Ministers did not assimilate the differentiation between genetic ancestry and affiliation or the possibility of assigning legal responsibilities arising from the link of kinship to the biological father, without being attributed to paternity.

Given the complexity of the issue and in an attempt to fill a serious legislative gap, it can be seen that multi-parenthood has been integrated into the Brazilian legal system through the thesis in general repercussion no. 622. The (in)adequacy of the concrete case to configure as a paradigm to multi-parenthood was left overcome in the face of the eagerness to solve the existing social framework. Nevertheless, the legal consequences of the decision taken reverberate between doctrine and jurisprudence even today, with issues still unresolved by law, as will be presented below.

6. RECEPTION OF THESIS 622 IN LATER JUDGMENT

Despite the decision of the STF in a general repercussion regime, with the respective fixation of Thesis 622, generating binding of the lower instances, it is necessary to recognize that multi-parenthood has not yet been able to bring secure beacons to the other issues that see about the subject.

As an example, the judgment, in April 2018, by the Superior Court of Justice, of Special Appeal No. 1,674.849/RS, of rapporteurship of Minister Marco Aurelio Bellizze, in which the recognition of multi-parenthood was left in the specific case. According to the Superior Court of Justice, “The recognition of concomitant links of parenting is a case series, not a rule (…)”. Arguing that the judgment of Extraordinary Appeal No. 898.060/SC was also based on the principles of responsible parenthood and the pursuit of the best interest of the child, it was pointed out that these principles “(…) in this case, the recognition of multi-parenthood is not feasible.”

Thus, it sought the Superior Court to demonstrate the existence of “distinguishing” in relation to the precedent of the Supreme Court, noting that, in the specific case subject to the Special Appeal, the recognition of biological paternity would not meet the best interest of the minor, in view of the complete disinterest shown by the biological father and the complete assistance provided by the socio affective father, as well as that the claim would have been filed in the sole interest of the child’s mother. However, the possibility of this, when the age of majority was reached, to demand the inclusion of biological paternity in its civil registry.

It is also worth mentioning the judgment, in July 2018, by the Court of Justice of the Federal District and Territories, of the review of the judgment prolatado in the case of Civil Appeal No. 0008418-53.2013.8.07.0016, in which the dissonance with the decision of the STF proved even more intense. In this case, the Court of Appeals, in the review judgment provided for in Art. 1040, II, of the Code of Civil Procedure[6], decided to keep the judgment previously delivered, “(…) in order to maintain the determination that the civil record of the minor be rectified so that it is only the name of his biological father.”

The Court pointed out the existence of distinctions between the case dealt with in the acourt proceedings and the paradigm judged by the Supreme Court, basing that the decision of this “cannot be applied indistinctly to all hypotheses in which there is a conflict between socio affective and biological paternity”. He pointed out that the evidence in the case-record indicated that the biological father did not depart from his paternity duties and that there was an interest in his relationship with the child. With this, the local Court gave preference to “genetic/biological veracity”, which, it was claimed, would not harm the bonds of affection of socio affective paternity.

Furthermore, founded on the decision of the Superior Court of Justice elsewhere mentioned, the Court of Appeals went further to state its understanding that the “acceptance of the thesis emanating from the Excelsa Tribunal does not harmonize with our legal system and, in fact, reveals incongruities that affect not only family law, but also the succession field and social security law”. With this, under the pretext of making a “distinguishing”, the decision analyzed here seemed to subvert the logic of the judicial structure, honoring itself and the decision of the Superior Court of Justice to the detriment of the thesis set by the top body of the national judiciary.

7. THE LEGAL CONSEQUENCES OF THESIS 622/STF: DISAGREEMENTS AND CRITICISMS OF DOUTRINS AND JURISPRUDENTIAL ON THE SUBJECT

Well, that’s it. In the case of discussions about the adequacy, or not, of the paradigm that led to Thesis 622, it is certain that five years ago multi-parenthood is a fact legally recognized due to the work of the STF that, given the inertia of the legislature, brought a general orientation on the subject.

It happens that, even in the face of Thesis 622, whose effect is – or should be – binding, there is still no uniform solution in the trials throughout Brazil, which raises questions about the effectiveness of the solution given by the STF and even the institute of general repercussion.

Moreover, the application of Thesis 622 brings to light, once again, legislative inertia, since the legal effects of the recognition of multi-parenthood continue without its legal provision. Cassettari (2015) highlights some of these legal gaps:

      1. emancipação voluntária (art. 5º, inc. I do Código Civil);
      2. o casamento do menor de 18 anos e sua representação para elaboração de eventual pacto antenupcial (§ único do art. 1.517 e art. 1.634 do Código Civil);
      3. representação e assistência judicial/processual ou extrajudicial do menor de 16 anos ou entre 16 e 18 anos (art. 1.634, inc. VII do Código Civil e art. 71 do Código de Processo Civil);
      4. usufruto e administração dos bens de propriedade dos menores (art. 1689 do Código Civil);
      5. a tutela do filho menor no caso de falecimento ou ausência dos genitores (art. 1.728 do Código Civil);
      6. a questão alimentar, tanto no aspecto dos pais para com os filhos, como dos filhos para com seus pais (artigos 1694 e 1698 do Código Civil);
      7. a perda do poder familiar por abuso de autoridade, falta nos seus deveres ou negligência para com os bens dos menores (artigos 1.637 e 1.638 do Código Civil);
      8. a representação ou assistência dos menores para registro de empresas (§ 3º do art. 974 do Código Civil);
      9. no caso de responsabilidade civil (art. 932 do Código Civil);
      10. a curadoria do ausente (art. 25 do Código Civil), e
      11. a sucessão entre pais e filhos.

Part of the issues mentioned above can find a solution with the application, by analogy, of existing legislation, although they will certainly lead to the judiciary.

However, among the most stormy are the issues involving the Succession Law. The one with regard to the child receive inheritance from three or four parents, which can lead to strictly property demands. However, it seems to us that the patrimonial interest of the child does not exclude his legal right to receive the inheritance due, although there is doctrinal discussion as to the need for the judiciary to curb claims of an exclusively patrimonial nature. This question resumes the discussion of the differentiation between genetic ancestry and affiliation – do you want the biological father or just his inheritance? Complex question that will be up to the judiciary to answer.

But among the most problematic issues derived from multi-parenthood is the succession of the ascendants of the child. In this case, considering the prediction of § 2 of Article 1,836 of the Civil Code that inheritance will be divided equally between paternal and maternal lines, numerous and complex questions arise that have been the object of research by indoctrinators and jurists. Allied to this issue, we also have the problem of the competitive law of the surviving spouse or partner, provided for in Art. 1,837 of the Civil Code[7].

The questions listed above – and which are recurring themes in the doctrine – make room for questioning as to whether the recognition of multi-parenthood has not generated even more legal problems than its absence in the system. On this path, doubts arise as to the scope of Thesis 622 of general repercussion, noddedly in situations in which the concomitance of biological and socio affective bonds would be able to be solved with other institutes of Family Law.

It should also be questioned whether the importation of the institute of multi-parenthood – since the Rapporteur expressly cited in the trial the leading case of the State of Louisiana (USA) – was appropriate for Brazilian law[8].

Furthermore, it must be reiterated that the decision taken by the STF in a general repercussion regime and the consequent thesis set did not meet expectations and have been limited in its application by the lower courts. In addition to a legal culture not accustomed to the doctrine of precedents, it is to be recognized that the paradigm case elected by the Supreme Court to represent the issue was not the most appropriate. The demand selected did not exactly contain a dispute about multi-parenthood, so that its procedural instruction did not bring the appropriate political contours to a decision on the subject that could solidly guide national jurisprudence. It should be noted, as seen, that the Superior Court of Justice mitigated the application of Thesis 622, understanding that the recognition of multi-parenthood is “a case series, not a rule”, and should be emphasized by seeking the best interest of the minor.

8. FINAL CONSIDERATIONS

While the decision of the STF has honored the dignity of the human person (art. 1, III, of the CF) and the protection of family ties (art. 226 CF), it cannot be criticized that the Court has exceeded the limits of the institute of general repercussion to innovate originally in the legal system and establish a discipline until then unprecedented on the subject in national territory.

In order to present a legal solution to the problem of multi-parenthood, the STF failed to comply with the requirements of the general repercussion, having distanced itself from the technical contours of the course to trace a generic and abstract discipline on the issue, sometimes making legislator.

From the perspective that multi-parenthood aims to safeguard the fundamental right of the individual to see recognized both his affective bond – generating the affiliation – and his biological bond – of knowledge of genetic ancestry with the assumption of the effects arising from the affiliation – and, above all, without hierarchizing the bonds, it is also worth criticizing the use of the general repercussion as an instrument to fill gaps, making the time of the order warrant or direct action by default. Thus, the STF stopped using the general repercussion as an instrument to achieve the unity of law, to make it legislative mechanism.

Despite the criticisms that can be made, it has been that multi-parenthood is a reality in the Brazilian legal system that was established with a thesis of general repercussion set out in Theme No. 622. Given the absence of legal discipline, the decision and thesis established by the Supreme Court follow as normative paradigms in the last 05 (five) years for the recognition and application of the institute of multi-parenthood. The matter, however, still cannot be considered as definitively resolved. In fact, it is verified that the thesis is mitigated by the Courts of Justice and even by the Superior Court of Justice, either by the still incipient culture of respect for precedents, or in view of the difficulty of adapting the cases tried to the paradigm that led to the Thesis 622 of general repercussion.

So many questions that have yet to be concluded and will undoubtedly continue to permeate doctrine and jurisprudence until the effective resolution of all aspects of multi-parenthood. In this sense, while the Legislative Power remains inert to discipline the subject, it is certain that further studies and research will be necessary to understand and provide solutions to the legal consequences of the recognition of multi-parenthood in the Brazilian legal system.

REFERENCES

BRASIL. Código Civil. Lei nº 10.406, de 10 de janeiro de 2002. Disponível em: http://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm. Acesso em 26/04/2021.

_______. Código de Processo Civil. Lei nº 13.105, de 16 de março de 2015. Disponível em: http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm. Acesso em 26/04/2021.

_______. Constituição da República Federativa do Brasil. 05 de outubro de 1988. Disponível em: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Acesso em 26/04/2021.

_______. Superior Tribunal de Justiça. Recurso Especial nº 1.674.849/RS. Relator Ministro Marco Aurélio Bellizze. Terceira Turma. Julgamento em 17/04/2018. Publicado no DJe de 23/04/2018. Processo sob segredo de justiça.

_______. Supremo Tribunal Federal. Recurso Extraordinário nº 898.060/SC. Relator Ministro Luiz Fux. Tribunal Pleno. Julgamento em 21/09/2016. Publicado no DJe de 24/08/2017. Processo submetido a segredo de justiça. Ementa disponível em: https://jurisprudencia.stf.jus.br/pages/search?classeNumeroIncidente=RE%20898060&base=acordaos&sinonimo=true&plural=true&page=1&pageSize=10&sort=_score&sortBy=desc&isAdvanced=true. Acesso em 26/04/2021.

_______. Tribunal de Justiça do Distrito Federal e Territórios. Apelação Cível nº 0008418-53.2013.8.07.0016. Relator Desembargador Gilberto Pereira de Oliveira. 3ª Turma Cível. Julgamento em 11/07/2018. Disponibilizado no DJe de 18/07/2018. Processo sob segredo de justiça.

CALDERÓN, Ricardo. Princípio da afetividade no direito de família. 2. ed. – Rio de Janeiro: Forense, 2017.

CARVALHO FILHO, José S. Repercussão geral: balanço e perspectivas. São Paulo: Almedina, 2015.

CASSETTARI, Christiano. Multiparentalidade e parentalidade socioafetiva: efeitos jurídicos. – 2. ed. – São Paulo: Atlas, 2015.

DANTAS, Bruno. Repercussão geral: perspectivas histórica, dogmática e de direito comparado: questões processuais. São Paulo: Editora Revista dos Tribunais, 2008.

FAGUNDES, Cristiane Druve Tavares. A objetivação do recurso extraordinário. Revista da Faculdade de Direito da Universidade São Judas Tadeu, São Paulo, n. 01, pp. 110-118, 1º semestre de 2014. Disponível em: https://revistadireito.emnuvens.com.br/revistadireito/article/view/91/88, consultado em 11/04/2014.

FREIRE, Alonso Reis, e OMMATI, José Emílio Medauar. A repercussão geral e o (novo) perfil do Supremo Tribunal Federal. In FUX, Luiz, FREIRE, Alexandre, e DANTAS, Bruno. Repercussão geral da questão constitucional. Rio de Janeiro: Editora Forense, 2014.

LEITE, Eduardo de Oliveira. Exame de DNA, ou, o limite entre o genitor e pai. In ______ (Coord.). Grandes temas da atualidade: DNA como meio de prova da filiação. Rio de Janeiro, Forense, 2000, pp. 77-79.

LOBO, Fabiola Albuquerque. Multiparentalidade: efeitos no Direito de Família. Indaiatuba, SP: Editora Foco, 2021.

LOBO, Paulo. Direito ao estado de filiação e origem genética: uma distinção necessária. Revista Brasileira de Direito de Família. 2003.

LOR, Encarnacion Alfonso. Súmula vinculante e repercussão geral: novos institutos de direito processual constitucional. São Paulo: Editora Revista dos Tribunais, 2009.

MARINONI, Luiz Guilherme, e MITIDIERO, Daniel. Repercussão geral no recurso extraordinário. 3ª edição, rev. e atual., São Paulo: Editora Revista dos Tribunais, 2012.

MENDES, Gilmar Ferreira. O papel do Senado Federal no controle de constitucionalidade: um caso clássico de mutação constitucional. Revista de informação legislativa, v. 41, n. 162, pp. 149-168, abr./jun. 2004. Disponível em: http://www2.senado.leg.br/bdsf/handle/id/953. Acesso em 20/04/2021.

ORTOLAN, Marcelo Augusto Biehl. Common law, judicial review e stare decisis: uma abordagem histórica do sistema de controle de constitucionalidade anglo-americano em perspectiva comparada com o sistema brasileiro. In MARINONI, Luiz Guilherme (org.). A força dos precedentes: estudos dos cursos de mestrado e doutorado em direito processual civil na UFPR. 2ª edição, rev. amp. e atual., Salvador: Editora JusPodivm, 2012.

PEREIRA, Rodrigo da Cunha. Dicionário de direito de família e sucessões: ilustrado. São Paulo: Saraiva, 2015.

TAVARES, André Ramos. A repercussão geral no recurso extraordinário. In TAVARES, André Ramos, LENZA, Pedro, e ALARCÓN, Pietro de Jesús Lora. Reforma do Judiciário: analisada e comentada. São Paulo: Editora Método, 2005.

VIANA, Ulisses Schwarz. Repercussão geral sob a ótica da teoria dos sistemas de Niklas Luhmann. São Paulo: Saraiva, 2010.

APPENDIX – FOOTNOTE

3. Art. 1.593: Kinship is natural or civil, as it results from consanguinity or other origin.

4. I Civil Law Day:

Paragraph 103: the Civil Code recognizes, in Art. 1,593, other species of civil kinship other than that resulting from adoption, thus welcoming the notion that there is also civil kinship in the parental bond arising from either heterologous assisted reproduction techniques in relation to the father (or mother) who did not contribute to his fecundmaterial, or socio-affective paternity, founded on the possession of the state of a son.

Utterance no. 108: Art. 1,603: in the legal fact of birth, mentioned in Art. 1,603, consanguineous and socio affective sonless is understood, in the light of article 1,593.

III Civil Law Day:

Utterance no. 256: Art. 1.593: The possession of the state of child (socio affective parenting) constitutes a modality of civil kinship.

IV Civil Law Day:

Utterance no. 336: Art. 1.584: The sole paragraph of Art. 1,584 also applies to children from any form of family.

Utterance no. 339: Socio affective fatherhood, based on free will, cannot be broken to the detriment of the best interests of the child.

Utterance 341: Art. 1,696: For the purposes of Art. 1,696, the socio affective relationship may be a generating element of food obligation.

5. This may discourage such a practice, since donors of genetic material do not necessarily have a parental project in relation to the fruit – child – of their donations.

6. Code of Civil Procedure: “Art. 1.040. Published the paradigm judgment: (…) II – the body which delivered the judgment under appeal shall re-examine the original jurisdiction procedure, the necessary referral or the appeal previously tried if the judgment under appeal contradicts the guidance of the high court.”

7. Art. 1,836 CC: In the absence of descendants, the ascendants are called to succession, in competition with the surviving spouse.

(…) § 2. With equality in degree and diversity in line, the ascendants of the paternal line inherit half, with the other being the one of the maternal line.

Art. 1,837 CC: Competing with ascendant in the first degree, the spouse will touch one third of the inheritance; it will fit you half of this if there is only one ascendant, or if it is greater that degree.

8. On this issue see Chapter 15 of fabiola Albuquerque Lobo’s work (ob. cit.).

9. Supremo Tribunal Federal – STF is the highest organ of the Brazilian Judiciary.

10. Federal constitution of Brazil.

11. Brazil’s Municipal Urban Property Tax.

[1] Master’s degree in Civil Law Compared by PUC-SP. Specialist in Civil Procedural Law at COGEAE/PUC-SP, in Family Law and Succession by EPD/SP and Civil Law with emphasis on Family and Succession by IASP.

[2] Master’s degree in Constitutional Law from PUC-SP.

Submitted: June, 2021.

Approved: June, 2021.

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