O princípio do devido processo legal na defesa dos fetos anencéfalos

• Autor(a) principal: Freitas, Patrícia Marques
• Data de Publicação: 2009
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/8486
• topic: Fetos anencéfalos; Aborto -- Leis e legislacao -- Brasil; Bioetica; Devido processo legal -- Brasil; Direito a vida -- Brasil; Feto -- Anomalias -- Aspectos geneticos; Anencephalic fetuses; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

Thanks to advances in Medicine, it is now possible to identify problems such as anencephaly in fetus formation while at the intra-uterine stage. It has led pregnant women to appeal to courts to authorize abortions. They explain about all the suffering they will have to endure during pregnancy as well as the issue of infant s short life expectation. This study analyzed the possibility of using due process of law to protect anencephalus fetuses, as the Brazilian Supreme Federal Court may decide by authorizing the abortion. Such a decision would be erga omnes and of binding effect, there is also the issue of the draft bill changing the Brazilian Criminal Code by including eugenic abortion as a non-punishable crime. Specific objectives include: to consider the legal, philosophical and ethical issues regarding protecting the fetus s right to live; to observe the ethical and legal parameters on the dignity of human beings specifically regarding fetuses in the 1988 Brazilian Federal Constitution; to define how the present issue is part of Constitutional BioLaw and Bioethics; to verify how current legislation addresses abortion; to study scientific aspects that involve anencephalic fetuses; to analyze legal discourse in jurisprudence; and, at lastly, to analyze arguments arising from the Allegation of. Violation of Fundamental Precept. The methodology used in this study was interdisciplinary descriptive bibliographic research, based on the most recent doctrinal studies on the proposed theme, comprising not only the legal field, but also History, Philosophy, Medicine and Bioethics. In addition to Jurisprudence, Judgments handed down by Brazilian Courts were studied, as well as documentary research involving international treaties and conventions, laws and bills of law. This paper advocates protection of anencephalus fetuses as living beings, pursuant to the principle of due process of law, guaranteed by the constitution, and based on the principle of human dignity, with the enshrined right to life prevailing. Opposing the fetus s inviability as a reason for abortion, we argue that such reasoning follows the ethics of utilitarianism. The paper concludes that fetuses must be supported by the human rights ethics and Constitutional BioLaw, as this is understood as a positive and universal affirmation of human rights and 21st Century Constitutionalism