A teoria da perda de uma chance e a responsabilização da genitora que omitiu a paternidade de sua prole.

Abstract

This study aimed to verify, from a purely theoretical-legal point of view, the possibility of civil liability, based on the Theory of Loss of a Chance, of the mother who omitted to the father the information about the paternity of his offspring, removing from him the opportunity to having formed an affective bond with their child(ren), causing the feeling of frustration both in the deceived parent and in the offspring that developed without a father figure. To arrive at the hypothesis, the institute of the family was initially approached, in its concept and historical evolution, from ancient Rome to the advent of the Federal Constitution of 1988. Then, general notions about civil liability were addressed, presenting its concept and presuppositions for characterization, as well as their exclusions brought by the law. Finally, it was about the Theory of Loss of a Chance from the perspective of doctrine and jurisprudence, and its applicability to relationships governed by Family Law, moving on to the analysis of the hypothesis of civil liability of the mother who omitted to the parent the information about the paternity of his offspring, causing irreversible damages in the formation of the affective bond. As for the methodology, the present study was based on a descriptive, hypothetical and deductive research, with a qualitative approach and of the bibliographic type, considering that there is a problem and a fixed hypothesis, not being necessary to use statistical or quantitative data to reach the intended conclusion, starting from a general analysis of the themes correlated to the main idea, as exposed, to then approach the hypothesis of civil liability object of the research and obtain the imagined conclusion, with the use of doctrines, scientific articles, text of law and judgments from the Brazilian Courts. In the end, it was understood that civil liability is possible for the mother who omitted to the father information about the paternity of his offspring, based on the Theory of Loss of a Chance, given the negligent conduct practiced by the mother in violation of the values and principles that guide family relationships, causing irreparable damage to the parent-child relationship.