The present issue is not part of the routine of our forensic daily life, so that it becomes difficult to standardize a Doctrine and Jurisprudence about it.
The problem of fact and of right begins with a pregnant woman doing a routine sonography when she discovers that the fetus that carries in her womb and infeasible, that is to say, it did not survive at the birth, for being carrier of extraordinary anomaly.
Let us here only address the specific case of anencephaly or acrania, which is nothing more than the absence of brain and (or) cranial box.
Well, this pregnant woman who had lived a dream until now – inherent in motherhood – began to live a real nightmare, since she was pregnant with an unfeasible fetus, that child she had so expectantly waited for, has no chance of leaving motherhood with Mother, because it lacks a vital organ – the brain – unfortunately Science can not repair it, the situation is irreversible and death is certain.
What to do? Interrupt this pregnancy and minimize the suffering of the pregnant woman and her whole family or force her to carry the pregnancy to the end, condemning her to endless months of suffering?
Does the law admit abortion in this case?
No, the law does not allow interruption of this pregnancy. Our Penal Code only allows abortion when practiced by a physician only when there is no other way to save the life of the pregnant woman or if the pregnancy results from rape (Article 128, I and II, of the Penal Code).
There is no express legal provision authorizing the abortion regarding the fetus infeasible.
The ratio legis in the case of the permissive provided for in clause II of Article 128 of the Criminal Code – abortion in case of pregnancy resulting from rape – and protection of the psychological state of the pregnant woman, who was raped in her honor with rape, hence a pregnancy unwanted, there is no denying that this woman would have a conflicted and distressed gestation. There is no denying also that in the pregnancy of an unviable fetus the damages to the psychic hygiene of the pregnant woman are so great or greater than those resulting from the pregnancy from rape.
In the case of gestation due to anencephaly, since there is no legal provision, which exempts from the penalty of the doctor who wishes, at the request of the mother, to interrupt this pregnancy, the fear of being seen as criminals is created in the minds of many health professionals, which forces them to demand that pregnant women seek judicial authorization so that they can call for abortion.
In fact, in no case is such authorization necessary because the law does not foresee or require any judicial license so that the doctor can perform the abortion when necessary to save the life of the pregnant woman or when the pregnancy is due to rape, much less in cases of anencephaly. In all these situations, doctors can perform these procedures without giving them any criminal consequences. In the first two cases because the law allows and in the latter for absence of crime to punish.
When pregnancy is absolutely unfeasible as in anencephaly, and a judge or court decides to authorize abortion, there is a lot of controversy just because the law is silent. However, those who oppose forget, are unaware or do not understand well, that the fetus has no extra-uterine life conditions, which causes severe psychological distress to the mother, in addition to pregnancy in this case is also high risk, as is the hypothesis foreseen in the permissive of item I of Article 128 of the Penal Code. Making no sense compelling a mother to wait 9 months to finally take her son to the cemetery is cruel.
Gestation in the case of anencephaly is also considered a risk for the pregnant woman, as the teacher in obstetrics Dr. Jorge Rezende teaches, because the fetus tends to grow above normal, the placenta presents several abnormalities, being common eclampsia and other disorders. Finally, the pregnant woman faces a double problem, one of a psychological and a physiological one. The hypothesis is exactly analogous to the situations contemplated in items I and II of Article 128 of the Penal Code.
What would be the legal basis for exempting a doctor who would interrupt a pregnancy with a fetus with anencephaly?
In this particular case, we are with the great and late Nelson Hungary, for if pregnancy is a truly morbid process, so as not to allow even a surgical intervention that can save the life of the fetus, there is no way to speak of crime of abortion, for whose existence is necessary the presumed possibility of continuation of the life of the fetus, in this case exists until the certainty of death.
It is not necessary to speak of legal good to be protected by the Criminal Law, being the legal asset the basic element for formation of the criminal type. The interest of society to be preserved in pregnancy is not pregnancy as a physiological fact in itself, but the expectation that the fetus, after gestation, will place a human, predictably alive. If, on the contrary, there is no longer this expectation, there is no legal good to be preserved, there is no criminal type, there is no crime. One can argue even with the figure of the crime impossible, provided for in Article 17 of the Penal Code.
The person of the pregnant woman, however, must be preserved, turning to her in full, all available legal protection. Consequently, it is only the doctor and the pregnant woman who decide on the therapeutic anticipation of the delivery, due to the infeasibility of the fetus due to extraordinary malformation, not having to speak about abortion crime, simply repeat, because there is no typical in the hypothesis.
The Federal Council of Medicine states that continued gestation of an anencephalic fetus becomes an unnecessary risk and generates an indication of discontinuation, even if the risk is not imminent.
It is not given to doctors, from the moment they graduate and join the Regional Medical Council, to exclude themselves from their responsibilities and obligations, that is, there is no place in saying that interruption can only be given by judicial authorization. The exercise of medicine, when delegated to health professionals legally recognized as such, results in responsibility over life, only to them ponderable.
The voluntary interruption of pregnancy of an unviable fetus is a matter of little legal relevance and, within the Brazilian constitutional system, is considered as a private decision of the mother, never appearing among constitutional fences. This is because the unviable fetus is not a factual supporter of the crime of abortion and the conduct in these cases, as seen, and atypical and uncharacteristic, there is no assumption for any other phase of the crime structure.
A woman suffering from this morbid situation, carrying a fetus in the womb that will never become that long-awaited, desired baby, since in the end, irremediably, her destiny will be death, she has the right to decide about it, since she who will suffer all the inconveniences and sufferings of an atypical gestation, not to mention the irreparable psychological upsets. Thus, by wanting to interrupt this gestation, it does not leave this woman to be of the virtuous as that which, under the same conditions, decides to carry the pregnancy to the end, resisting bravely all the sufferings, because human beings are different from each other, some more fragile than others and these differences must be respected. Well, only this woman has to decide on the interruption of pregnancy, the suffering that only her and her family belong to.
Once the decision to discontinue, how to do it and of exclusively medical competence has been overcome, health professionals must be assured of the necessary legal security.
Thus, in Brasilia, Federal District, the illustrious Justice Promoter Diaulas Costa Ribeiro, after facing all the possible adversities arising from retrograde positions, managed to prevail the common sense supported by the seriousness that the theme deserves.
In Brasília, the Public Prosecutor’s Office, in cases of therapeutic anticipation of childbirth, anticipates, in a proper administrative procedure, its institutional position to affirm the lack of public interest in the pursuit of actions or omissions developed to assure the mother’s desire to interrupt pregnancy of an unborn fetus. Dismissed will be, in these cases, judicial intervention, because there will be no obstacle opposed by the Public Prosecution Service to the request of the Mother. The decision of the Public Prosecutor, in these cases, guarantees fundamental rights, since there will be an irreversible decision that is equivalent to a prosecution, for lack of typicity. Therapeutic anticipation of childbirth is not antagonistic to the permanent interests of society. This is a ministerial-administrative decision and the matters involved in criminal prosecution and that depend on legal certainty outside the strict criminal procedure are privately decided by the Public Prosecutor.
In short, an Administrative Procedure is instituted before the Public Prosecutor’s Office, starting with the request of the pregnant woman and (or) of the doctor, instructing herself with all pertinent documentation, listening to the parties, requesting expert opinions, etc., all with a view to the final declaratory decision on the non-existence of a crime in the event of termination of pregnancy with an anencephalic fetus, for atypicality, since there is no offense of abortion practiced against unfeasible fetus, one does not take the life of those who do not expect -over there. The Public Prosecutor, in casu, only anticipates his opinio delicti to declare that there is no just cause in the instituting of Criminal Action in that case. It brings tranquility to the health professionals involved in those specific cases that are submitted to them for consideration.
As can be seen, there is no discussion about the analogical application or not of items I and II of Article 128 of the Criminal Code in such cases.
We have listed below a very illuminating passage of the respectable sentence handed down by Dr. Fernando Mello Batista da Silva, Distinguished Judge of Substitute Law of the 1st Family Court of the Special Judicial District of Brasília – Federal District, in Process nº 2002.01.1.082024-8 – so that a couple could stop pregnancy of an anencephalic fetus.
“One could think that this decision constitutes negative of jurisdictional provision and, consequently, lack of guardianship the human dignity and the life. Ledo mistake. The Public Ministry of the Federal District and Territories, which today has an exceptional protocol for voluntary termination of pregnancy, is as much guardian of these principles as dear to Democracy as the Judiciary. However, it is the responsibility of the Public Prosecution Service to provide the first clue to issues such as those covered in these proceedings; the Judiciary will be responsible for resolving any conflicts that may have arisen after the Public Prosecutor’s Office demonstration.
Lastly, even if the gestation in question did not represent a specific risk to the mother’s life, I stress the total lack of need of the court order for cases of abortion of the anencephalic fetus, since such conduct is not even subsumed under the criminal type of abortion. The characterization of the crime of abortion can not dispense with the existence of an embryo capable of generating life; life presupposes expectation of autonomy; the anencephalon does not have it, since it maintains a parasitic relation with the mother, without which it can not survive at birth.
In view of the above, in view of the lack of interest in bringing proceedings, the initial petition on the basis of Article 295, III, of the Code of Civil Procedure has been dismissed and extinguishes the proceeding without judgment of merit under Article 267 Statute. Without cost, here I stand the benefits of gratuitous justice.
The case is immediately and urgently sent to the Public Ministry of the Federal District and Territories – Public Prosecutor’s Office for the Defense of Users of the Health Services – so that it can take appropriate measures. Brasília / DF, October 7, 2002 “.
Conclusion: Although our penal law only exempts the doctor who practices abortion to save the life of the pregnant woman or when pregnancy is due to rape, it does not prohibit it in cases of anencephaly or there is no crime in the hypothesis and for the most demanding we emphasize that our Penal Code and 1940, when there was still no news of anencephaly cases, so we did not include the hypothesis in the roll of Article 128 of the Penal Code, thus, while there is no change in legislation, judges must judge according to the yearnings and social needs of the time.