Legal requests for anencephalic pregnancies termination: jurisprudence of the state of São Paulo

Abstract

In 2012, the Brazilian Supreme Court (STF) approved the legalization of anencephalic pregnancy termination in Brazil. However, trial courts had already been leaning toward favorable decisions were already positioning themselves in this direction for several years, especially the courts of São Paulo State. The aim of this study was to evaluate the reasoning that Sao Paulo magistrates used to support their decisions regarding their authorizations to terminate anencephalic pregnancies and review the literature regarding the medical-legal aspects involved in their decisions. In São Paulo, there were 30 court rulings regarding anencephalic pregnancy interruption, 9 in favor, 6 against abortion and 15 that did not address the issue directly. When authorized, the abortion was performed, based on the following: a) analogy to therapeutic or sentimental abortion (both authorized by the penal code); b) the right to life, health, privacy, dignity and autonomy of the pregnant woman; c)’unenforceability due to special mental circumstances of ineligibility of a different conduct from the pregnant woman, and d) consideration that considering the anencephalic fetus is as being brain dead. The rulings that denied the abortion, were based on the primacy of the unborn child’s right to life and also, by considering the conduct unlawful. From a legal standpoint, in addition to the Penal Code articles pertaining abortion, the following was cited: the rulings cited the constitutional fundamental rights (Brazil, 1988), Laws 9.434/97 and 8.069/90, the Universal Declaration of Human Rights (1948), Declaration of the Rights of the Child (1959), the resolutions of the Federal Council of Medicine (CFM) - 1.480/97 and 1.752/04, the Pact of San José (Decree no 678/92), and the Allegation of Disobedience of Fundamental Rights Precepts - ADPF 54 (2008).