Adoção intuito personae: uma burla ao cadastro nacional de adoção?

Abstract

Within the framework of Brazilian law, adoption is a formal process that offers a safe haven to a child or adolescent who is in a state of abandonment or has been stripped of parental rights. Adoption is not a singular concept, but rather encompasses various forms. This research focuses on intuito personae adoption, a type of adoption that occurs when birth parents decide to entrust their child to a specific individual whom they trust. However, this often takes place without adhering to the legal requirement of prior formalization through the national adoption registry, thereby potentially bypassing the explicit provisions of the law. Given this perspective, it is hypothesized that in the event of disputes regarding the legality of transferring a child to a third party without the necessary prior registration, the application and supremacy of fundamental principles outlined in the country’s legal order become imperative. As a result, the primary aim of this study is to examine the practice of adoption without prior formalization through registration with the national adoption registry, exploring doctrinal and jurisprudential understandings within the Brazilian context. Initially, the socio-legal aspects of adoption in Brazil will be presented. Following this, the concept of intuito personae adoption and its characterization in relation to the country’s laws will be discussed. Subsequently, the adoption of intuito personae will be examined in contrast to the National Adoption System. In this scenario, in line with the majority doctrinal understanding, it was observed that there is a need for the positive regulation of this modality, given its prevalence in society and the absence of any illegality in the act. Finally, potential conflicts arising from intuito personae adoption and the jurisprudential understandings issued by the courts of justice of Goiás, Rio Grande do Sul, and São Paulo will be elucidated. These do not diverge from the understanding of the Superior Court of Justice, which asserts that principles concerning the protection and best interest of the child and adolescent should prevail, thereby confirming the initial hypothesis.