"LOVE HAS NO DNA": AN ANALYSIS OF THE LEGAL RECOGNITION OF SOCIO-AFFECTIVE PATERNITY, WITHOUT FORMAL MANIFESTATION BY THE DECEDENT

Abstract

The article critically analyzes a judicial decision that denied the post-mortem recognition of socio-affective paternity, despite robust evidence of the possession of the status of a child (cohabitation, public treatment, and social reputation). The study contrasts this understanding with the consolidated paradigm established by the Superior Court of Justice (STJ), particularly in Special Appeal (REsp) 2,224,984/GO, which allows for recognition based on the factual demonstration of an affective bond, regardless of a formal declaration by the decedent. It is argued that the analyzed decision incurs error in judicando by disregarding the evidentiary assessment of the lower courts and deviating from the settled jurisprudence. The article further highlights that such a position violates Articles 1,593 and 1,596 of the Brazilian Civil Code, ignores the principle of multi-parenthood (Theme 622/STF), and disregards STJ precedents that allow for the legal re-evaluation of facts to set aside Precedent (Súmula) 7/STJ when there is an error in the qualification of evidence. It is concluded that the denial of recognition, which is misaligned with the dominant jurisprudence, represents a setback, compromising legal certainty and the constitutional principles of human dignity, affectivity, and equality among children. The study reaffirms the need for the Law to keep pace with family transformations, protecting bonds constructed in the factual and socio-affective sphere.