Aborto anencefálico: atipicidade e a dignidade humana da gestante.

Abstract

This monograph deals with the possibility of anticipation of anencephalic parturion supported by our constitutional right, as well as in relation to criminal law that demonstrated the atypical nature of the conduct. Theme very polemic and that produces heated debates. The objective of this work is the making of an analysis of legal and constitutional arguments that would justify the authorization of the interruption of pregnancy fetal anencephaly holder which are: the right to life, the principle of human dignity, the right to health and sealing of torture, without such conduct is imputed to pregnant women as a crime of abortion. Tried to demonstrate, from the beginning, that anencephaly is a lethal fetal pathology, in other words, the fetus that has congenital malformations has no possibility of extrauterine life, likewise it was demonstrated the physical and mental risks that the pregnant woman shall be submitted in the case she should be required to maintain the pregnancy until the end. A brief study around the criminal typicality was conducted bringing to the fore its main peculiarities, as well as an overview of the crimes of abortion listed by the Brazilian penal code. To enter the subject of the atypicality of the conduct was analyzed, the text of the Law n. 9.434/97, which provides for the removal of organs, tissues and body parts for transplantation and treatment, and its application in cases of people with anencephaly. After presenting this scenery the atypical nature of the conduct of interrupting a pregnancy when there is the clinical diagnosis of anencephaly of the fetus was discussed, resulting in the conclusion that the crime of abortion in relation to typicality assumes the existence of current pregnancy, fetal death and that death is due to abortive maneuvers, so as anencephalic fetus has no life or even potential, can not occur crime of abortion, since it lacks an essential element of the type.