O REGISTRO EXTRAJUDICIAL DE PARENTALIDADE POR CASAIS HOMOAFETIVOS DIANTE DA REPRODUÇÃO CASEIRA

Abstract

This article aims to reflect on the (un)need for judicialization of parenthood registration for same-sex couples, with a specific focus on lesbian women, married or in a stable union, who planned to have children together. This is because our legal system advocates reproductive autonomy and free family planning. Understanding this problem is fundamental so that, given the judgment of ADI 4722/ADPF 132, which recognized stable unions between people of the same gender as a family entity, equality between heterosexual and same-sex couples can be fully exercised through free family planning. The objective is to analyze the requirements for the presumption of children born in the context of marriage or stable union, responsible parenting and free family planning, set out in both the Federal Constitution and the Civil Code. The methodology used was hypothetical-deductive, based on the assumption that the presumption of paternity provided for in art. 1,597, V, of the Civil Code does not include couples formed by women who opt for home reproduction, failing to observe the principle of equality and free family planning set out in the Federal Constitution of 1988 and the civil-constitutional, hermeneutic methodology that aims to protect the human person, without any a priori distinction. It is concluded, based on the analysis of the legislation, that the principles of substantial equality are not applied in the face of differences, especially with regard to couples formed by people of the same gender, especially women.