Claudiane Aquino Roesel, Rodolpho Barreto Sampaio Júnior
Since the Brazilian state took upon itself the task of legally disciplining the family in late nineteenth century, we have not seen as many and as profound transformations as that have happen in the last quarter of a century. The legal recognition of cohabitant couples and of equal rights for children born outside of wedlock were followed by the acceptance by jurisprudence of homoafetive unions and adoptions by gay couples, as well as by the development of the notion of socio-emotional paternity and the admission of multiparentality. Jurisprudence now even takes care of multi-species families, with the consequent legal protection to the “non-human” members of the family nucleus.
In this context, the level of protection given to the child and the adolescent stands out. Since the adoption of the Statute of the Child and Adolescent in the middle of 1990,the “peculiar condition as a person in development” has been recognized and the principle of integral protection is applied to them, based on the notion of “their best interests” as a guiding principle.
The notion of the best interest of the child and the adolescent, however, may lead to extreme situations, coming to the very negation of the woman’s right to be a mother. This is what has happened in Belo Horizonte since the year 2014. Through Recommendations 05 and 06 both of 2014, the State Attorney has determined that maternity hospitals are obligated to inform the authorities whenever the mothers were alcohol or drugs users. In such case, the child is taken from her biological mother, sent to a public shelter, and then sent for adoption if the mother can not prove she is no longer addicted within 3 to 6 months. No help is given to the mother to treat her addiction nor any effort is made to make sure the child is placed with a family member. Since the recommendations were issued, hundreds of children have already been withdrawn from their mothers’ arms, even using police force to do so.
The aim of the present study is to verify if there is a fundamental right to be a mother, considering motherhood not only as the biological act of reproducing, but rather to raise her children and to support her family, regardless of their physical, economic and social conditions.