Adoção socioafetiva post mortem: análise de sua possibilidade à luz do ordenamento jurídico.

Abstract

The adoption institute has promoted an increasing space in the Brazilian legal system. Through adoption, a legal bond of parenthood is created in which the adoption becomes part of the adopters' family as a child, having the same rights and duties, including succession, towards existing or future children. Therefore, this work's central objective is to analyze the protection of the children and adolescents’ rights constitutional in cases of posthumous adoption, focusing on situations in which a judicial adoption process has not been formalized yet. This is an issue of great complexity, given that guaranteeing the minors’ rights is a responsibility that transcends the existence of the adopter and raises significant ethical and legal challenges. The specific objectives include the adoption’s description, addressing its origin and nature, the analysis of conflicts and discussions related to the topic and its potential influence on the children and adolescents’ well-being, and, finally, the discussion of adoption's posthumous, with a presentation, its effectiveness, functioning and impacts on the Brazilian legal system. The work is divided into three chapters, each with a specific focus. The first addresses the historical evolution of the family’s concept, from ancient Roman law to changes before the 1988 Constitution. The second focuses on adoption, including its history and legal requirements, including posthumous adoption. The third explores the feasibility of posthumous adoption in the Brazilian legal context, providing a complete understanding of the topic. The research follows a deductive methodological approach, starting with an analysis of the historical family’s context law in Brazil, governing principles, the adoption process and finally the analysis of the possibility of post-mortem adoption in the Brazilian legal system, a qualitative approach carried out through bibliographic and documentary research. It is concluded that, although the law is strict regarding the recognition of posthumous adoption only when a process is in progress and the adopter has expressed his desire to adopt, there are jurisprudential and doctrinal understandings that consider the child and the adopted person well-being that it has already expressed its desire to form a family, going beyond the law’s letter to seek the best solution in the specific case. This reflects the search for a more flexible and child-interest-oriented approach to complex situations involving posthumous adoption.