Pela afirmação do direito à filiação homoafetiva e transafetiva decorrente das técnicas de reprodução humana assistida no Brasil : das decisões judiciais favoráveis rumo à necessária legislação

Abstract

The objective of this present master’s degree dissertation is building academically, based on the advanced doctrine and the cutting-edge jurisprudential decisions, reasonable arguments that justify the regulation of the right to the original filiation of the techniques of human reproduction assisted to homoaffective and transaffective families. The transformations undergone by society have resulted in the emergence of new family groups, among them, families formed by homosexuals and transsexuals, who were relegated to invisibility and condemned to the limits and dictates of heteronormativity. It is to be pointed out that they are not families formed exclusively by sexuality, but especially by affection. This part of the population has knocked at the doors of the Judiciary to ask for recognition of their rights, among them, the filiation and registration of their offspring conceived through assisted reproductive techniques (ART). In Brazil, there is no law, in the strict sense, that regulates the use of these techniques and also its consequences in Law. Resolution No. 2,168 of 2017 of the Federal Council of Medicine (FCM) ethically disciplines the conduct of physicians and, therefore, has no legal effects, giving rise to a legislative vacuum on the subject. In order to carry out the work, an analysis was made of the current legislation and draft laws, as well as an evaluation of the position adopted by the doctrine and jurisprudence on the matter, drawing inspiration from national and international sources and, disciplines, especially in sociology and anthropology, that would enrich bibliographical research. The achievements of the homosexual and transsexual communities in the ethical, medical, judicial and legal spheres are highlighted in the work, which are understood as reinforcing the recognition of homoparentality and trans parenting, as well as their respective membership through access to ART. Secondly, fundamental human rights and personality rights, such as equality and the right to difference, the dignity of the human person, freedom, reproductive rights and freedom of family planning, are analyzed, interest in the child, the right to self-determination, privacy, intimacy, identity and, finally, the right to health, as theoretical contributions to legitimize the viability of a parental project within homosexual and transaffective families. Although, in recent years, the Judiciary has demonstrated progress in dealing with this issue, we refer to Proceedings No. 52 of the the National Supervisory of Justice, the issue is not exhausted in the Judiciary, and effective legislation is necessary in order to legal certainty necessary for homoafetive and transaffective families.