ADOPTION BY SAME SEX COUPLES WHEN THE MINOR IS THE BIOLOGICAL CHILD OF ONE MEMBER OF A SAME SEX COUPLE
Claim of unconstitutionality against the articles 64, 66 and 68 (partially accused) of the Law No. 1098 of 2006 “by means of which is issued the Code of Infancy and Adolescence” and against the 1st article of the Law No. 54 of 1990 “by means of which are defined the marital unions and the patrimonial regime between permanent partners”. The complainant queries why the accused dispositions don’t authorize the joint adoption by same sex couples, that omission is, on his judgment, contrary to the Preamble and the articles 1, 7, 13, 42, and 44 of the Constitution, as well as the 2nd article of the Universal Declaration of Human Rights and 26 of the International Covenant on Civil and Political Rights.
The Court analyzed these topics: (i) the adoption as a measure of protection to the minor orientated to grant his right to have a family, (ii) the criteria that has to be acknowledged to restore the bonds of filiation of the minors, (iii) the same sex couples as families constitutionally recognized and the legal regime of adoption, (iv) the prohibition on discrimination for reasons related to sexual orientation and the differential treatments admissible under the light of the Political Constitution, (v) the enabled subjects to adopt in terms of the Code of Infancy and Adolescence and (v) the constitutional exam of the demanded norms. After deploying that analysis the Court decided to declare the constitutionality of the attacked expressions contained on the articles 64 (1st num.) and 68 (3rd num.) of the Law No. 1098 of 2006, as well as those contained on the 1st article declared conditionally constitutional the expressions demanded of the article 64 (num. 5), the article 64, the article 66 and the article 68 (num. 5) of the Law No. 1098 of 2006, under the understanding that its scope of application also comprehends the same sex couples when the adoption request involves the biological child of his or her permanent partner.