The appropriated lawsuit when the purpose is to recognize biological affiliation is called “suit of affiliation proof”. In Brazil, it is foreseen in the Civil Code and in the Statute of the Child and Adolescent, the ECA. For dealing with a personality right, it is imprescriptible, that is, it can be proposed at any time by the child or, even after his death, by his heirs.
The action is more commonly called “recognition of paternity” since cases in which there is doubt as to maternity are rare – but these are not non-existent and are equally protected by the same legal institute, it may be necessary, for example, in cases that babies were exchanged in a maternity ward or even in cases of child abduction for the purpose of illegal adoption.
In the legal action, when the child is still a minor, he/she must be represented by his/her mother or legal guardian. During the process, the DNA test must be carried out, which is the means of proof capable of proving the biological relation.
In cases of international families, the lawsuit can be proposed in Brazil if the child lives here by either the interested mother (or the father – if he wants to know and formalize fatherhood). In such cases, the physical distance between the parties, which supposedly could appear as an obstacle to carrying out the DNA test, will be articulated through a Rogatory Letter, an instrument of international legal cooperation, through which the Brazilian court can request the possible father’s country of domicile to carry out the necessary acts for the procedural progress.
No person can be deprived of knowing about their biological ancestry, and the recognition of paternity is fundamental for several reasons that can be raised. There are, in the moral sphere, the rights of the child to the construction of an identity and to have a complete civil registration. In a more pragmatic context, it will be essential to determine who should provide economic support to the minor, figuring as defendant in a maintenance lawsuit. It will also directly affect issues and rights arising from the children’s nationality and/or citizenship.
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