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Brazil: Registration of Babies Born from In Vitro Fertilization or Surrogacy

(Apr. 28, 2016) On March 14, 2016, Brazil’s National Internal Affairs Office (Corregedoria Nacional de Justica, CNJ) published Act No. 52,  regulating the issuance of a birth certificate for children whose parents opted for reproductive techniques such as in vitro fertilization and “pregnancy by substitution” (barriga de aluguel), which is better known as “surrogacy.” (Provimento No. 52, de 14 de Março de 2016, CNJ website.) In the past, to register a child born under these circumstances it was necessary to obtain a court order, because there were no specific rules covering the situation. (Corregedoria Regulamenta Registro de Criança Gerada por Reprodução Assistida, CNJ (Mar. 15, 2016).)

According to article 1 of the Act, if the parents, whether heterosexual or homosexual, are married or live together in a stable union, only one of them can appear at the registrar’s office to register the child. On the birth certificate of a child of a homosexual couple, the document must be adapted so that their names appear without distinction as to paternal or maternal ancestry. In surrogacy cases, it is no longer required to include on the birth certificate the name of the woman who gave birth. (Act No. 52, art. 2 § 2.) In addition, knowledge of the biological ancestry does not imply recognition of a parental relationship or of legal links between a donor and a person generated through assisted reproduction. (Id. art. 2 § 4.) Officers of registrar’s offices are prohibited from refusing to register such children and if they refuse to do so may be subject to disciplinary sanctions. (Id. art. 2 § 3.)

To justify the adoption of the measures, the Act makes reference, inter alia, to article 227 § 6 of the Constitution, which states that regardless of whether born in or out of wedlock or adopted, children must have the same rights and qualifications and any discrimination with respect to filiation is prohibited. It also refers to a decision issued in 2011 by the Brazilian Federal Supreme Court with binding effect for the entire public administration and all the organs of the Judiciary, which recognized continuous, public, and lasting unions between persons of the same sex as creating families. (Constituição Federal [C.F.] (1988) art. 227 § 6, PLANALTO; Brazilian Federal Supreme Court [STF], Ação Direta de Inconstitucionalidade, ADI 4.277 & STF, Arguição de Descumprimento de Preceito Fundamental, ADPF 132, both on STF website.)

National Internal Affairs Office

The National Internal Affairs Office is part of the National Council of Justice (Conselho Nacional de Justiça) and carries out guidance, coordination, and implementation of public policies aimed at disciplinary activities and the proper performance of judicial activities of the tribunals and trial courts of the country. The main objective of the Office is to achieve greater effectiveness in adjudication, based on the constitutional principles of legality, impersonality, morality, publicity, and efficiency. (C.F. art. 37; Corregedoria Nacional de Justiça, CNJ website (last visited Apr. 25, 2016).)

National Council of Justice

The CNJ was created in 2004 through Constitutional Amendment No. 45 of December 30, 2004. (Emenda Constitucional No. 45, de 30 de Dezembro de 2004, PLANALTO.) It is a judicial agency responsible for the administrative and financial control of the judiciary and the supervision of judges. (C.F. art. 103-B (§ 4); for background on the CNJ, see Eduardo Soares, Brazil: International Adoption, GLOBAL LEGAL MONITOR (Mar. 28, 2014).)