Debating care in Brasil and Portugal

Projeto Cuidado (the care project) is a project in a partnership between Brazil and Portugal. In this article the coordinators of this project (Tânia da Silva Pereira, Guilherme de Oliveira and Antônio Carlos Mathias Coltro) explain what the project aims at and share insights they developed with relation to care. Readers are invited to join the debate about care both within the ambit of law in relation to care and from a humanitarian and interdisciplinary perspective.

About PROJETO CUIDADO: A care project in partnership between Portugal and Brazil
(Translated from Portugese into English bij Andrew Packett and Amélia Alves Tellechea)

How did Projeto Cuidado come about and what does it stand for?

Tânia da Silva Pereira: In 2005, following a meeting with Professor Guilherme de Oliveira of the University of Coimbra, there was a proposal for a debate about care both within the ambit of law and from a humanitarian and interdisciplinary perspective. A partnership was thus initiated between Brazil and Portugal, which can be seen in subsequent debates which have continued between the participants.

2008 saw the publication of The Juridical Value of Care (O Cuidado como Valor Jurídico), which came about following a meeting of people from diverse areas of knowledge. This set out to consider developing an understanding of diverse juridical issues from within the perspective of care, with the aim of developing applicable criteria.

Such were the range of points which arose for reflection that new directions of study followed, resulting in a further five publications focussing across a range of issues: Care and Vulnerability (Cuidado e Vulnerabilidade), Care and Responsibility (Cuidado e Responsabilidade), Care and Sustainability (Cuidado e Sustentabilidade), Care and Affectivity (Cuidado e Afetividade), Care and the Right to Be: Respect and Commitment (Cuidado e o Direito de Ser: Respeito e Compromisso).

It was concluded that the analysis of care is materialised in settings which are constantly renewed, and always within an interdisciplinary perspective, which bring together diverse knowledge in order to understand human beings in their totality.

In 2012 care served as a parameter in Special Appeal No. 1.159.242/SP, analysed by the Third Chamber of the Superior Court of Justice (STJ) (Reporting Justice Nancy Andrighi), which provided for the obligation to indemnify following an unlawful act resulting from failure to meet the legal requirement of caring for offspring. Following this paradigmatic judgement, care gained prominence within the sphere of law, and its importance in resolving concrete cases was recognised.

In 2016 care finally reached the Federal Supreme Court (STF) (Judgement RE 898.060) in a case whose repercussions were widely recognised. In this case the court, through its plenary, understood that the existence of socio-affective paternity does not exempt the biological father from responsibility. The president of the court, Reporting Justice Cármen Lúcia, emphasised that “while love is not imposed, care is, and it seems to me that this care is part of the set of guaranteed rights, especially in cases of responsible fatherhood and motherhood”. This judgement highlighted care as a guiding light in recognizing the possibility of coexistence between biological and socio-affective bonds.

Faced with the recognition of human vulnerability and the need to guarantee the conditions for the defence of autonomy, always within the perspective of responsibility, the firm and necessary presence of care is noted, which is strengthened across the various sectors of life.

What Projeto Cuidado proposes is as follows: to recognize the importance of care on various levels, and provide subsidies so that it can be used in specific situations that challenge the law, demanding solutions that take into account the vulnerabilities and individualities of the subjects.

Can the juridical recognition of care be considered as a reflection of socioaffectivity?

Guilherme de Oliveira: The recognition of care does not generate socioaffectivity: it is socioaffectivity that generates care.

I agree with you when you say that solidarity is the basis of everything. We live “in solidum”, i.e. we are all part of one whole, and therefore we are responsible for the whole.

It is from this premise that responsibility and the duty of care for all is born. Yes, all, because according to a new understanding of the concept of vulnerability, we are all born vulnerable.

But there are people who find themselves in special situations which intensify the responsibilities and the duty of care. For example, parents and children.

The biological parents were formerly recognised as the legal parents by law: later there has been a shift.

The value of affects started to compete against that of biology and succeeded in being able to provide the basis for the recognition of the juridical bond. This was clearly achieved in Brazil, though timidly so in Portugal.

In the systems where affective parents are also juridical parents, they assume the responsibility of care.

In conclusion: socioaffectivity resulted from the recognition of familial sentiments and the growth of the value of affect. Then it gained sufficient strength to generate parenthood relations; and these relations intensify the responsibility towards children – they generate the duties of care.

To what extent does Care manifest itself in the transformations in Brazilian family law that have taken place in the last decade?

Antônio Carlos Mathias Coltro: It is now increasingly possible to acknowledge the extent to which humanism has gained importance in interpersonal relations, especially those concerning family law and its circumstances.

For this precise reason it is easy to understand why legislators act under the influence of this question, in view of the legislative proposals brought to parliament. Regarding facts which require the intervention of the Judiciary Branch, it is increasingly clear that attention is given, both in the application and interpretation of the law, to social ends and to the demands of the common good, as reflected in the tenor of Article 5 of Law of Introduction to the Norms of Brazilian Law (Lei de Introdução às Normas do Direito Brasileiro).

The term ‘care’, derived from the Latin words cogitare and cura, refers directly to body and mind, and according to the commonly expressed Latin saying “mens sana in corpore sano”, freed itself from its bodily element following the Classical Ages and the Middle Ages and the advent of Christianity and began to be used as a synonym for care of the soul and salvation from original sin. More recently it has been adopted within law as a relevant value, especially within the framework of family relations.

The proposal which aimed at researching the link between the term care and the law was the initiative of Professors Tânia da Silva Pereira and Guilherme de Oliveira, who underlined the importance this could have in relation to studying questions inherent within family law. In particular, with the timely publication of multi-authored works about various aspects of this topic, there arose an understanding of the importance this issue possesses, and also the fact that, as mentioned by Professor Guilherme de Oliveira, it expresses “[…] the shift in law towards protection of affect and privacy”. Furthermore, as alluded to by Professor Tânia da Silva Pereira, we should “[…] see difference as a conquest, not as a threat”. Both of these observations serve to demonstrate the relevance that should be given to care and how much can result from it when it is seen as a true value capable of creating multidisciplinary outcomes in the juridical field.

In this way, the importance of care cannot be denied, not only from the psychological and sociological point of view, but also from the anthropological perspective. Due to the comprehensiveness of the term, it should not be restricted to this or that particular detail. It is essential to take into consideration the constant changes in life and law, and to change the way those changes are perceived, as well as recognizing the need to revise our preconceptions, mainly in the framework of family relations, in which affect, solidarity, harmony, fraternity and the absence of prejudice must be present. It is essential to highlight the personal dignity of the members of the family unit.

Projeto Cuidado continues to move forward in 2018, looking for new partners and research initiatives both nationally and internationally, secure in the knowledge that other academic areas have developed the concept of care across the diverse areas of the human sciences, forever bound up with the idea of responsibility and commitment.

Alongside the development of theory, it is necessary to view the practice of care across the widest variety of sectors, demanding a practice which is both integrated and interdisciplinary. It is this which is the current challenge and which, continuing the work done up to now, the participants of the group are committed to taking care of, with the awareness that, to quote Saramago, “ […] it is necessary to vary, if we don’t care, life will rapidly become predictable and monotonous, a bore!’

About the author: Webteam

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.