Anencefalia: aspectos da problemática em torno da interrupção da gestação.

Abstract

Law is not only the result of legislators' interests, so that It needs historical and cultural elements, due to social relations, to be constituted. However, Brazilian Criminal Code was defined in 1940 and despite its 1984 reformulation in the General Part, most of its ancient and mistaken principles from the ditatorial period of the New State were kept. Therefore, it is clear we need new adjustments so that the code could keep up to the development of science and technology. Discussing anencephalic fetus' abortions turns out to be important. Research aims to show that upgrading Certain Law to allow anencephalic fetus' abortions is necessary. A bibliographic review of criminal law doctrines and manuals was realized to fulfill it and also medical literature and specialized journals were consulted. Anencephaly is a cephalic disorder resulting in the absence of a major portion of the brain, skull, and scalp that can often be diagnosed before birth. Without a brain, the fetus will not have higher level cognition and the lack of a functioning cerebrum permanently rules out the possibility of ever gaining consciousness, although pregnancy can get to term but the infant will usually die within a few hours or days after birth from cardiorespiratory arrest. An abortion is the termination of a pregnancy before labor, interrupting intrauterine life and the birth itself is not considered one of its causes. Controversy starts to take place as long as the current law does not allow abortion to this especial cases, which emerges as a controversial subject in ethical, religious, social and legal fields; but focusing in the legal one. It is known that a satisfactory result is not always obtained by interpreting prohibition norms. We should interpret them by comparisons and considering the historical-development of societies. This evolution demands new norms creation, which can also help solving some circumstances that are not already legally previewed. Thus, according to the legislation that rules organ transplants and donation, anencephalic fetus can be considered as cerebral death case that, even if pregnancy gets to term, and the embryo is only supposed to die after its birth. So, pregnancy could be interrupted without leading the woman to criminally respond for it. Anencephalic fetus' abortion may not be considered with criminal liability due to its lack of juridical object, passive subject and material object. Once there is no possibility of life and no legally protected interest to be tutored, pregnant women might have the right of choosing wether they want to therapeutically anticipate the anencephalic fetus' birth.