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Registering the birth of a newborn is a routine act, but some parents may encounter extraordinary bureaucratic issues. In the case of children conceived by two mothers outside of fertility clinics, through so-called home artificial insemination (self-insemination), recognition of filiation on the birth certificate may require a 12-year wait or legal action.

 

This is because the technique - which involves the introduction of semen into a woman's vaginal canal without medical supervision - is outside legal regulations and causes obstacles in civil registration, raising  questions that go beyond the best interests of the child and impacts on public health.

 

Overview of assisted reproduction

 

In Brazil, assisted reproduction follows criteria defined by the CFM - Federal Council of Medicine, which regulates procedures such as artificial insemination and in vitro fertilization.

 

To register a child born through assisted reproduction, a statement from the clinic's technical director must be presented, attesting that the procedure took place under medical supervision and in accordance with ethical standards.

 

This document, reinforced by provision 63/17 of the CNJ , is essential to ensure the legal validity of the parental bond. 

 

However, such documentation becomes a significant obstacle for families who resort to home insemination, such as many LGBTQIAPN+ and low-income couples. Without this document, these families face difficulties in obtaining legal recognition of dual parenthood.

 

Provision

 

In October, the Brazilian Institute of Family Law (IBDFAM) filed a request to the CNJ to review the provision. The institute argued that the requirement violates principles such as human dignity and the best interests of the child, as it limits the recognition of different family structures, contradicting the current interpretation of the STF on the recognition of same-sex couples.

 

ADFAS - Family and Succession Law Association, Anvisa and CFM, in turn, spoke out against the request for measures.

 

In the end, the Council denied IBDFAM’s request.

 

Best interests of the child - Genetic origin

 

Lawyer and president of ADFAS - Family and Succession Law Association, Regina Beatriz Tavares da Silva , warned of the risks of self-insemination, such as perforation of the cervix and possible transmission of diseases, highlighting that sperm donations are often offered via social networks, which increases the risk of contamination with diseases such as AIDS and syphilis.

 

Furthermore, he highlighted that the lack of donor data, with the lack of knowledge of genetic origin, could hinder future medical treatments for children.

 

According to Regina, the practice of home insemination, without regulation, generates complicated situations, such as potential paternity disputes, while assisted reproduction has clear rules that eliminate kinship ties with donors.

 

The lawyer also pointed out that CNJ provision 149/23, in its art. 505, allows the recognition of dual motherhood for female couples after the child turns 12, if socio-affective motherhood is proven. For children under 12, the process requires legal action.

 

Watch the interview:

 

Judicialization

 

Regarding legal actions, in October, the STJ decided on a paradigmatic case related to the topic. 

 

Under the reporting of Minister Nancy , the 3rd panel of the Court unanimously  allowed the registration of dual maternity of a child born through home insemination.

 

 

Read more

STJ presumes maternity of non-biological mother in home insemination

 

The decision was only obtained through a special appeal after the notary's office and lower courts had refused. The process lasted for more than two years until the merits were concluded.

 

Lawyer Ana Carolina dos Santos , representing the mothers, emphasized the limitations faced by the non-pregnant mother, from restrictions on access to the neonatal ICU to barriers to accompanying the child in daily activities.

 

She pointed out that the failure to recognize dual parenthood prevented the child from fully enjoying family ties, depriving him or her of ties with grandparents and siblings, perpetuating legal inequality.

 

Best interests of the child - Legal certainty

 

For Ana Carolina, the difficulties in registering children born through home insemination reveal disparities in Brazil: families with the resources to pay for treatments in clinics have the right to register without obstacles, while those who resort to self-insemination, by choice or necessity, face barriers.

 

The lawyer noted that this inequality particularly affects LGBTQIAPN+ families, highlighting that heterosexual families can register children born outside of clinics without additional proof.

 

According to the lawyer, the idea that the recognition of dual parenthood would encourage home insemination reflects moral prejudice, as private autonomy should be respected, as much as in casual heterosexual relationships.

 

She also demystifies home insemination as a clandestine practice, highlighting that many cases involve known donors and medical support, ensuring safety and awareness in the process.

 

 link: https://www.migalhas.com.br/quentes/418618/autoinseminacao-veja-impacto-juridico-da-pratica-nao-regulada-no-pais