A natureza biojurídica do nascituro: um óbice ao aborto arbitrário

Abstract

The discussion about the practice of abortion – its absolute permission or prohibition – it moves the academic scene in various branches of human knowledge, it occupies the political scene in the Brazilian parliament, it enters the courts of the country demanding a solution, it arouses passions of the most varied sectors of society. There is no prospect for a minimum agreement in the near future. The vote for decriminalization of abortion is often limited to touch the sexual rights, reproductive and disposal rights of the body of the woman, as guarantors of unrestricted abortion, neglecting, thereby, the human person to be achieved with such a release, the unborn child. The discussion on the uninterrupted release of abortion should not only be considered, but should invariably go through the study of the biological and legal nature of the unborn child, since its biojuridic essence is the starting point (and the final point) for that we define the possibilities and limits of abortion practice. In this step, from the outset, we analyze the unborn child from the legal point of view, from Roman law to the juridical treatment conferred in contemporaneity, in order to observe the rights of the human person who secures and personalizes it. Then, we studied the unborn child from the perspective of medical science, in order to determine its biological essence, supporting in the lessons of embryology and genetics. Afterwards, we evaluate the convergence between the legal and biological perspectives, in order to discover the biojuridic nature of the unborn child. Finally, we analyze the legal consequences deriving from the essence of the conceptus, regarding the possibilities of abortion practice, as well as the limits of the legislative action on the subject, as in the ordinary scope as in the constitutional field.