From Illegal Adoptions to Enforced Disappearance: Analogies in Favour of Victims’ Redress
By Vivian J. Salles Vieira Pinto
Introduction
On 9 April 2025, the Federal Regional Court of the 6th Region issued a landmark ruling in Maria Concebida Marques and others versus the Union and Minas Gerais State (Lawsuit 1000920-39.2017.4.01.3801/MG), recognising illegal intercountry adoptions from the 1980s as enforced disappearances and awarding compensation to the victims. This blog post summarises the case and analyses the Court’s legal reasoning.
Context: Irregularities in Adoptions during the 80s
Three families – three mothers and two biological siblings – appear as plaintiffs in this case. A judge had ruled the children to be in an “irregular situation” due to poverty, declaring the mothers unfit to care for them; some were even subjected to mental assessments that resulted in interdiction. The children were later adopted abroad, to France and Italy. The families claim to be victims of crimes against humanity, including the enforced disappearance of children, arguing that removals served hidden interests behind abusive adoption practices rather than the children’s best interests.
Although not explicitly mentioned in the ruling, case files show unusually rapid adoptions – sometimes approved the same day proceedings began – and other irregularities, such as the absence of pre-adoption placement and the failure to notify the prosecutor. These were not isolated incidents but part of a broader pattern in the municipality of Santos Dumont and nearby regions. During a Human Rights Commission hearing, it emerged that, in the 1980s, poor families were systematically discredited and coerced into signing adoption papers – facts widely reported by the press. At least 90 such cases, excluding Maria Concebida Marques and others, were documented locally, and nearly 200 children were allegedly abducted across the State of Minas Gerais.
Abusive adoptions were widespread in Brazil and were also recorded in Rio Grande do Sul, Santa Catarina, Bahia, Pernambuco and Tocantins. In southern Brazil, about 12,000 newborns were sold abroad – mainly to Israel and Europe – and in São Paulo, a children’s home facilitated illegal intercountry adoptions. Following these scandals, new laws were adopted to protect the best interests of the child, and intercountry adoption is now allowed only when no suitable Brazilian family is available. Yet abusive practices continue domestically, with prospective parents even using social media to arrange illegal adoptions.
Judicial decisions
Initially, in 2020, the court of first instance declared the plaintiffs’ claim time-barred. The families lodged an appeal with the Federal Regional Court. In its decision from 9 April 2025, the Court set aside the statutory limitations, classified the cases as enforced disappearances, and held both the Federal State and the Region liable, ordering them to pay compensation to the victims.
Was the claim time-barred?
Time-barred claims are a significant obstacle for families and adoptees seeking redress in cases of illegal adoption practices. For this reason, rulings on enforced disappearance in the contect of political persecution have become highly valuable precedents, as in those cases the limitation period was lifted (Refer to AgRg no AREsp 611.952 and other decisions of the Superior Court of Justice). In the present adoption case, the limitation period was also lifted by applying an analogy with cases of political persecution. Additionally, the Rome Statute prescribes an exemption from statutory limitations for crimes against humanity, including enforced disappearance, according to Article 7(1)(i) and (k). According to the Court, this exemption should be extended to the corresponding civil claims for damages caused by state agents.
In the Court’s view, declaring the claim time-barred would imply that the mere passage of time could erase crimes against humanity and their profound impact on individuals. Statutory limitations (“prescrição”, in Brazilian Portuguese) are primarily based on the assumption of the right-holder’s inertia and negligence. However, these conditions are not necessarily met when victims face significant structural barriers that prevent them from seeking justice and compensation. The applicants in this case were families subject to poverty, with little to no financial means to obtain legal representation. If the state was responsible for the removal of the children, it is also foreseeable that a sense of powerlessness would suppress the victims’ ability – or willingness – to react against its actions.
What was the characterisation of the event?
The characterisation of the wrongful event is a matter of significant legal relevance. The defendants had previously argued that the adoption of children by new families should not be mistaken for the enforced disappearance of persons. They claimed that the adoption practices were carried out in the best interests of the children, given that they were affected by poverty and lacked proper material and emotional support from their biological mothers. To support this, the defendants referred to the same judicial decisions made by the former judge, along with reports from social workers and medical teams, as evidence of a proper adoption process. Although the defendants acknowledged that the applicants presented journalistic reports and press coverage about illegal adoption practices, they argued that the authors had failed to prove that the adoption in their specific case was unlawful.
Yet, this reasoning was not accepted by the Court, which referred to the adoptions as a crime of higher gravity, concluding that the claimants provided sufficient evidence of abusive practices. The evidence included witness statements, journalistic material and the public acknowledgment of serious violations. In the Court’s opinion, the events were widely and socially known, as reported in the media.
The adoptions were described as a crime against humanity in the form of enforced disappearance. As the primary legal basis, the Court referred to Decree 4388/02 (a domestic law that incorporated the Rome Statute of the International Criminal Court into the Brazilian legal system). In the Court’s view, rules of international criminal law offer a broader and more comprehensive definition of ‘enforced disappearance’, which differs from domestic criminal law, typically more limited and restrictive. This is why irregular adoption practices could fit within the definition of enforced disappearance.
However, neither the judgment nor the claimants addressed all elements of this crime. The enforced disappearance of persons in cases of adoptions involves key elements: deprivation of liberty, direct or indirect involvement of State agents, and refusal to acknowledge the deprivation of liberty or concealment of the persons’ whereabouts, which places them outside the protection of the law. In this Brazilian case, the children were forcibly removed from their parents by state agents. Generally, adoptees also have their whereabouts concealed from their biological parents by their adoptive families. Nevertheless, not every case of illegal adoption falls within the definition of enforced disappearance. The element of forceful removal by the State appears to be crucial in this classification. This crime has a dual nature, being not only an ordinary crime, but also a crime against the humanity.
The Court also identified notable similarities between enforced disappearances related to adoption in this case and enforced disappearances driven by political reasons during the Brazilian dictatorship. In both contexts—illegal adoptions and politically motivated forced disappearances—there was a systemic violation of human rights by State institutions, targeting families in highly vulnerable social and economic conditions. The Court pointed out that in both situations, there was an institutionalisation of serious human rights abuses, direct involvement of state agents, and the creation of structural obstacles that prevent victims from seeking justice. In both cases, victims are denied reparation, and the state benefits from a lack of accountability.
However, a key distinction between the cases must be made: political reasons did not motivate or influence the enforced disappearance of children involved in adoption. In other words, children were not taken from their families for political reasons but rather due to hidden interests behind irregular adoption practices.
Shared State liability
The judgment considered both the State of Minas Gerais and the Federal Union jointly liable for the financial compensation. This is because the State of Minas Gerais was deemed actively and directly linked to the wrongful act, considering the actions of the Brazilian judge, civil servants and social workers who facilitated the adoptions. The Union was considered liable due to its omission in properly investigating the illegal practice, which was widely reported in the media, while also allowing those children to leave the Brazilian state.
How to compensate? And who can be compensated?
The Court clarified that there was no state measure, whether punitive or compensatory, that could truly repair the harm caused by such a brutal violation. There was also no possibility of returning the children to their birth families or restoring their missed family time. It remains unknown if, and to what extent, the adoptees were able to trace their biological families. For this reason, monetary compensation was awarded in the judicial decision. The defendants argued that even if compensation was granted, it could only be awarded to the direct victims of the event,[1] not to their family members. Conversely, each biological sibling was awarded 150,000 Brazilian reais. This raises an interesting question of who can be compensated in cases of illegal adoptions, as such events affect the entire family unit. The Court rejected the defendants’ claim and affirmed that family members, including siblings, are equally victims of the wrongful actions, given the irreversible rupture in their family life.
Conclusion
An overall analysis of the case shows a promising step towards victims’ redress, such as the recognition of siblings and biological mothers as direct victims of the wrongful actions. However, there are also significant uncertainties and gaps in the Court’s legal argumentation. These gaps are mostly identifiable in the main contention points (analysis of whether the claim is time-barred and the characterisation of the wrongful event). The State of Minas Gerais and the Union have just challenged this recent decision, and they will bring the case to the Superior Court of Justice and the Supreme Federal Court of Brazil. This means that this legal discussion and the redress that ought to be provided to the biological families are yet far from being concluded.
As most of the argument is based on a legal analogy, one could explore the differences between political crimes committed during a dictatorship and the illegal adoptions to weaken the Court’s legal reasoning. An important distinction is that the political element was absent in the enforced disappearance of the children. Additionally, it is unclear what role the Rome Statute played in this ruling. Although the Court puts a lot of emphasis on the exemption from being time-barred, which is derived from the Statute, and the classification of the illegal adoptions as enforced disappearance under Article 7, it also mentions that the ruling did not directly apply the Rome Statute, but that it merely analysed the legal claim under the lens of such.
This leads to another relevant topic: the judgment seems to place considerable emphasis on overcoming the time-barring limit, which is typical of criminal law, given that criminal law does not operate retroactively, and the Rome Statute was only enacted in 2002. However, a more significant aspect is overlooked: the enforced disappearance of the children is a continuous act that still occurs today. This is because those children were taken from their biological families and never returned. Their whereabouts remain concealed.
Additionally, the defendants emphasise that there is no evidence proving the adoptions were illegal, given all the documentary evidence provided by the state. They note that the children were indeed affected by poverty, which impacted the mother’s ability to care for her children. Since this is not a clear-cut case of human trafficking where illegality is obvious, the issue of ‘illegality’ in these proceedings seems to be more nuanced: even though those mothers gave consent to the adoption, how freely was that consent obtained? And what role does poverty play in assessing parental capacity? Could the documents from social workers, doctors, and judicial decisions constitute proof of proper procedures in these adoptions, when it is exactly those actions of the State that are under scrutiny? These are vital questions to be analysed by the Supreme and Superior Court of Justice.
An essential step towards victims’ redress is that the judgment establishes a shift from attempting to make individuals criminally responsible to focusing on state liability. This is an important development, as establishing the individual liability of agents may pose a significant obstacle in cases involving justice and reparation for illegal adoption practices. Several factors, including difficulties in identifying the agents, the possibility that some agents may be deceased, the passage of time, and the non-retroactivity of penal law, are common barriers to individual liability. Therefore, by shifting the focus from an individual perspective to State liability, there are more possibilities for the victims’ redress. However, the legal basis presented by the applicants, and later adopted by the Court, appears somewhat incomplete. As mentioned, the judgment fails to examine all the elements of the crime of enforced disappearance. Although both the petition and the judgment refer to several legal sources, neither relies on Decrees No. 8.766 and 8.767 of 2016, which promulgate the Inter-American Convention on Forced Disappearance of Persons and the International Convention for the Protection of All Persons from Enforced Disappearance, respectively. Considering that the object of the lawsuit is state liability (and not individual criminal liability), these legal frameworks seem more adequate to the Court’s analysis.
[1] This term was not defined in the judicial decision. However, a restrictive interpretation of the term ‘direct victim’ could imply that only the adoptees could be compensated under tort law.