A prevalência do vínculo socioafetivo sobre o vínculo biológico no reconhecimento do estado de filiação

Abstract

This study addresses the parental bonds derived from biological and socio-affective origin. The study aims at identifying the prevalence of one type of bond over the other for the recognition of the state of filiation, based on the Supreme Court decision in the judgment of Extraordinary Appeal No. 898.060 from the state of Santa Catarina, which admitted multiple parenthood and, consequently, considered the socio-affective bond as valid for recognition of the state of filiation. The study presents legal hypotheses in which the socio-affective bond, such as adoption and heterologous artificial insemination, takes precedence over the biological bond, demonstrating the importance of said bond, departing from the possession of the state of offspring, for the recognition of the state of filiation. The study also identifies the reasons that led to the recognition of biological paternity in the judgement of Extraordinary Appeal No. 898.060/SC, generating multiple parenthood, and suggests that non-compliance with the Principle of Responsible Paternity should not be punished or avenged by the granting of a merely formal paternity that does not correspond to facts and having exclusive effect on property, but rather that the liability for any damage be considered under the general rule of civil liability. Thus, the study partakes in the understanding of Minister Luiz Edson Fachin in the judgment of RE 898.060/SC, by which the socioaffective bond must prevail over the biological bond in the recognition of the state of filiation, when the bond with the genitor is merely biological, as with adoption and heterologous artificial insemination, preserving the right to the knowledge of the genetic identity