Foundling presumption — rebuttable presumption of birth in Portugal (Art 1(2))

PT-BTH-04 is the foundling presumption route under Portuguese nationality law. Art 1(2) of Lei 37/81 establishes a rebuttable presumption that any newborn found (exposed or abandoned) in Portuguese territory was born in Portugal. When combined with Art 1(1)(g) — the statelessness-prevention jus soli provision (PT-BTH-03) — a foundling with no identifiable parentage and no other determinable nationality acquires Portuguese nationality from birth as a matter of law.

The provision directly implements Art 2 of the 1961 Convention on the Reduction of Statelessness, to which Portugal acceded on 1 October 2012 without reservations. It is also consistent with ECN Art 6(1)(b) and the general principle that no child found on national territory should be rendered stateless by reason of unknown parentage.

Art 1(2) has been part of Lei 37/81 since its founding in 1981 and was not modified by Lei Orgânica 1/2026 (EIF 2026-05-19). It is currently operative in its original W2 form.

Combined operation of Art 1(2) and Art 1(1)(g): The rebuttable presumption of birth in Portugal (Art 1(2)) functions as a gateway that activates Art 1(1)(g) (otherwise-stateless jus soli). A foundling of entirely unknown parentage cannot demonstrate any jus sanguinis claim; presuming Portuguese birth satisfies the "born in PT" condition of Art 1(1)(g), and the absence of identifiable parentage satisfies the "would otherwise be stateless" condition. The result is automatic Portuguese nationality from birth.

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A foundling acquires Portuguese nationality under the combined operation of Art 1(2) and Art 1(1)(g) if:

1. Found in Portugal — the newborn is physically found (exposed or abandoned) in Portuguese territory. There is no requirement to establish that the birth actually occurred in Portugal; the presumption supplies that condition.

2. Newborn / infant status — the provision applies to "expostos" (exposed/abandoned children), typically newborns. The closer in time to birth the child is found, the more readily the presumption is available. There is no fixed age cut-off in the statutory text, but in practice the provision is invoked for infants and very young children.

3. Place of birth unknown — the presumption applies only "when the place of birth is unknown." If there is evidence establishing birth outside Portugal, the presumption is displaced.

4. No other nationality identifiable — because the presumption is a gateway to Art 1(1)(g), the "otherwise stateless" condition must also be satisfied. For a foundling of entirely unknown parentage, this condition is typically met by default.

5. Presumption not rebutted — Portuguese nationality is not conferred if it is subsequently proven that the foundling was born abroad and holds another nationality by reason of birth. The burden of proof to rebut lies with those asserting foreign birth/nationality.

Note on rebuttability: "Salvo prova em contrário" makes the presumption rebuttable by any competent person (typically authorities of another State or persons establishing parentage). In practice, rebuttal is uncommon where the foundling was genuinely abandoned with no documentation.

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The foundling mechanism is triggered by the physical situation of abandonment, not by a formal application. In practice:

• Notification by authorities — hospital, social services, law enforcement, or other bodies finding the newborn notify the civil registry (Conservatória) of the situation.
• Birth registration — the CRC registers the foundling, applying the Art 1(2) presumption and noting Portuguese nationality under Art 1(1)(g).
• Name assignment — if parents are unknown, a name is assigned by the civil registry pursuant to applicable rules.
• Subsequent challenge — should parentage be established after registration, the CRC can revise the record if the evidence demonstrates birth abroad with another nationality. The burden of proof to displace the presumption rests with the challenger.

No documents from the foundling (by definition absent) are required. The evidentiary weight rests on the circumstances of finding and the absence of information establishing birth elsewhere.

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Process:

1. Foundling is discovered; relevant authorities notify the competent Conservatória.
2. The CRC applies Art 1(2) (presumption of birth in Portugal) and Art 1(1)(g) (otherwise-stateless jus soli) and registers the child as a Portuguese national of originária status.
3. If subsequently parentage is established: re-assessment by the CRC; if proof of foreign birth and another nationality is established, the record is corrected.

Appeals: Adverse decisions by the CRC lie to the administrative courts and, on further appeal, to the Supremo Tribunal Administrativo (STA), not the STJ.

AIMA has no role in foundling nationality attributions.

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Art 1(2), Lei 37/81 (founding 1981 redação, unchanged by LO 1/2026): "Os expostos achados em Portugal, quando se ignore o local do nascimento, presumem-se nascidos em território português, salvo prova em contrário." (Foundlings found in Portugal, where the place of birth is unknown, are presumed to have been born in Portuguese territory, unless proven otherwise.)

The presumption is expressly rebuttable ("salvo prova em contrário") — if it is subsequently established that the foundling was born outside Portugal and holds (or would hold) another nationality, Portuguese nationality is not conferred.

International Treaty Basis

Art 2 of the 1961 Convention (implemented by Art 1(2) Lei 37/81): "A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State." The 1961 Convention obligation is slightly broader (presuming parents with that nationality), but Art 1(2) read with Art 1(1)(g) achieves the same protective outcome via the otherwise-stateless ground.

Effect of Acquisition

Where the Art 1(2) presumption applies and is not rebutted, and where Art 1(1)(g) is satisfied (no other nationality identifiable), the foundling acquires originária Portuguese nationality with effects ex tunc from birth (Art 11, Lei 37/81). Registration of the foundling by civil registry authorities triggers the noting of nationality.

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