Brazil: International Adoption From The Standpoint Of The Brazilian Legislation

Last Updated: 6 May 2014
Article by Marcio Gomez Martin and Marília Rodrigues Mazzola

Adoption is a formal legal act in which, under the legal requirements, someone establishes a fictitious filiation relationship, irrespective of blood or similar kinship, with a person who is usually strange to them, by bringing such person to their family as a son/daughter.

Adoption occurs by means of a judicial procedure before a Judge with authority over the Young and Juvenile Court. Therefore, those who intend to adopt must go to the court of the place where they live.

In such procedure, the child's profile is described and, after a technical evaluation of the applicants, a decision on their qualification is rendered, so that adopters have their names added to an adoption registry, which is valid for two years in the Brazilian territory.

This registry is called National Adoption Registry [Cadastro Nacional de Adoção - CNA]. It is a database created and launched in 2008, maintained by the National Justice Council [Conselho Nacional de Justiça - CNJ], which is used to assist judges of Young and Juvenile Courts during the development of adoption procedures. This registry concentrates information of both applicants for adoption and children and adolescents eligible for adoption.

However, in Brazil, there is a recurring conflict between the profile desired by adopters and the children or adolescents available for adoption.

Currently, there is a strong preference for newborns, children with perfect health and light skin, among other requirements. As a result of such preference, children and adolescents with darker or black skin, older children, those with siblings, health problems or any type of disability are not chosen by Brazilian applicants, even if they are eligible for adoption. Thus, they become outcasts, and their chances of being adopted are increasingly reduced.

One way to reduce this, at least in theory, is international adoption, in which the applicant person or couple lives outside Brazil.

International adoption is defined in the Federal Constitution itself, where art. 227, par. 5, establishes that the act must be assisted by the Government, which defines the cases and conditions for foreign people to adopt.

To offer these children and adolescents more opportunities, the National Justice Council decided to amend its Resolution CNJ no. 54/2008, concerning the National Adoption Registry - Cadastro Nacional de Adoção - CNA, creating a "sub-registry" of foreigners who are interested in adopting Brazilian children.

Such amendment, approved by the full bench of the National Justice Council on 3/24/2014, authorized applicants residing abroad - either Brazilians or foreigners - to be included in the National Adoption Registry. However, applicants registered in the sub-registry can only be considered and called after all attempts to place the child in a Brazilian family have failed.

The purpose is to increase the visibility of applicants who live abroad in the adoption procedure, thus facilitating the matching of their information with the profiles of children and adolescents eligible for adoption, and therefore increasing adoption of older children and siblings.

To give an example of this scenario, data from the National Registry disclosed by the National Justice Council indicate that there are approximately 30,000 applicants for adoption and 5,400 children available for adoption.

However, 98% of the applicants want children under 7 years old, however, children in this age bracket represent less than 10% of the children available for adoption, while the overwhelming majority is between 9 and 16 years old.

The fact that 75% of the children and adolescents eligible for adoption have siblings in the same situation is also relevant, whereas the Judge always strives for joint adoption in these cases, in order to maintain the family bond. On the other hand, 80% of the people interested in adoption in Brazil want one child only.

With the amendment to the Resolution, the qualification register of foreign adopters will be available to all Judges of Young and Juvenile Courts, so that applicants will be qualified to adopt a child or adolescent from any Brazilian state, just like in the national adoption process.

In this new format, the international adoption process becomes more transparent, as the foreign applicant may check the progress of national adoptions, and there will be a classification order similar to the one used in national adoption procedures.

Even if registered foreigners are considered and called only after the attempts to place the child with a Brazilian family fail, their inclusion in the National Justice Council is a significant progress in making children's rights effective, given that the "invisibility" of foreigners in the adoption system will no longer exist.

As a result, the number of adoptions of the Brazilian children and adolescents whose profile does not match the profiles of applicants residing in the Country is expected to increase, what makes international adoption an extremely valuable and important option for family replacement, as well as a safe and legal alternative to prevent children from being forgotten in shelters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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