New forms of entities arising family in the Federal Constitution of 1988 and human assisted reproduction as a tool for the formation of homosexual families

Abstract

With the advent of the Federal Constitution of 1988 there was an expansion in the concept of family, due to the recognition of new family entities beyond that coming from the marriage. So the family came to be defined as a pluralistic institution, always intertwined with the values of dignity, equality and solidarity, in order to affection, regardless of their sexual choice. After the Supreme Court decision that equated the homoafective relationship as the heterosexual relationship, new rights were secured for homosexuals. Since then, based on the constitutional principles of family planning and responsible parenthood, homosexual couples are seeking, through the techniques of assisted human reproduction, the possibility of expanding family. In such cases the technique to be applied must always be in vitro fertilization (heterologous human assisted reproduction), in view of the necessity of the presence of an odd person to the relationship, the donor: in female pairs, the sperm is donated by the third, the transfer of the egg by one of the partners and the assignment of the uterus by another; in men couples, the egg is donated by the third, the transfer of sperm by one partner and the achievement of pregnancy is by substitution, commonly called “surrogacy”, in which another person outside the homoafective relationship offers her uterus for pregnancy development and should be complied with the requirements set forth in Resolution No. 1957/2010 of the Federal Council of Medicine. The realization of this project of homoparenthood family generates rights and duties for the couple, from the obligation to exercise responsible parenthood and the exercise of family power. In this environment, many achievements have been reached by homosexual couples, especially the possibility of double registration in the birth certificate of the children - father and father, mother and mother. However, there are still controversies and uncertainties due to the lack of specific legislation on such techniques of artificial fertilization, fitting, then, to the Judiciary resolve any conflicts, based on analysis of cases and applying the fundamental principles of family law.