Acolhimento institucional e estímulo à adoção: colisão e concorrência entre os direitos fundamentais à imagem e à convivência familiar

Abstract

Children’s rights went from nonexistent to fundamental in the course of a few decades, with the emergence of the Integral Protection Doctrine, which came from a minorist culture still permeating the protection network. While the rich doctrine on Fundamental Rights Theory has advanced in discussions worldwide, the collision of children’s rights has continued to be treated as a choice of the “good father” judge, who knows what is best for the one under his jurisdiction, without great grounds. The issues of this group of jurisdictionalists, in this sense, are not treated as complex, even when a proporcionality must be struck between two fundamental rights. Especially in the case of children in institutional care, able to be adopted, but because they are not in the preferential profile of the applicants, they cannot find a new family. These, without an individual and personalized attention from a responsible, see themselves as objects of active search actions that restrict the right to personality, the right to image, in favor of the right to family life. The tacit prevailing agreement that the latter overlaps the former has become widespread so that it has come to justify itself, without deepening it, without discharging the argumentative burden that falls on those who restrict a fundamental right that collides with another. Thus, based on the theories of fundamental rights and judicial decision, and using both the deductive and the dialectical method, starting from the right to a family until its viability through visibility for placement in a substitute family, as well as, opposing the current model as this visibility is given, the principle of useful exposure was established as a guide for weighing competing interests in promoting adoptions.