New Civil Code may favor abortion by calling embryos “potential for life”

The document that will guide the draft of the new Civil Code can create a legal environment favorable to abortion, according to jurists interviewed by the People’s Gazette. The report conceptualizes uterine life as “potency”, that is, as a mere possibility of life, contradicting scientific studies.

In the view of some jurists, the text also restricts the protection of the unborn child to the purposes of the Civil Code itself, excluding its impact, for example, on the Penal Code. In practice, this proposal is in line with Minister Rosa Weber’s vote in ADPF 442, which aims to decriminalize abortion up to the 12th week of pregnancy.

In the last draft report, the commission of jurists, appointed by senator Rodrigo Pacheco (PSD-MG), suggested the addition of article 1,511-A. The article points out, in its first paragraph, that “the potential for pre-uterine or uterine human life is an expression of human dignity and responsible fatherhood and motherhood”.

“I think a great opportunity is being missed to protect pre-uterine or uterine human life. When talking about potentiality, the Aristotelian distinction between act and potency is being used. But it is forgotten that pre-uterine or uterine life is already life in action, not just a potentiality. Therefore, if it is already a life in action, there must be all due protection”, analyzes Caio Morau, PhD in Civil Law from USP and Professor of Law at the Catholic University of Brasília.

“This is a contradiction insofar as personality is a presupposition of the ownership of rights. So, either the personality of the unborn child is recognized or it becomes contradictory to talk about the rights of the unborn child. This contradiction already exists in the current wording of the code and this change would not resolve it”, says Adisson Leal, PhD in Civil Law from USP.

Silmara Chinellato, professor of Civil Law at USP, believes that the expression can generate controversy. “It seems to me that it would aim to honor pre-uterine human life – frozen or not yet implanted embryos – and uterine life, but the insertion of the word ‘potentiality’ before ‘pre-uterine and uterine human life’ brings about a new condition that will serve to controversies”, he assesses.

Considering that a fetus does not have life is an affront to biology, says senator

Lenise Garcia, PhD in microbiology from USP, explains that what biologically defines an individual’s species is their own DNA. Chromosomes already contain all the information necessary for a person’s development. She also highlights the fact that the new human being was generated by human people. “When a man and a woman generate, they generate a human being. It’s not a worm, not a dog, not a cat, it’s a human person,” she says.

“There is no way to deny this humanity of the embryo, which is what those who want to legalize abortion want to do. This is completely contrary to what science says and what the Law itself has always ensured precisely by recognizing this humanity”, adds Garcia. Disregarding that there is life in an embryo and treating it only as a “power” takes away from the embryo access to the fundamental rights set out in the Federal Constitution.

For senator Eduardo Girão (Novo-CE), the term “potential for uterine human life” is “a true aberration that insults biology by defining that a baby before being born is not human”. “It’s the dream of abortionists”, said the parliamentarian in the plenary on Thursday (7).

The last Civil Code was approved in 2002, but its 2nd article has a wording similar to that of 1916. “If anything changed in this aspect, it was precisely the confirmation by science that human life begins exactly at the moment the egg is fertilized. by sperm. Science already shows today, with the stupendous progress we have made, that there is a heart beating 18 days after conception”, explained Girão.

“It is the law of the strongest. Basically, it is this: when one person has the ability to have an attitude of strength over another, the weaker person will be unprotected. It is sad to bring this argument to a relationship between mother and child, but this is the underlying premise when giving different rights to those who are more developed and those who are not”, reiterates Garcia.

Limiting the rights of the unborn child only to the Civil Code would be a step backwards

Article 2 of the current Civil Code states that “a person’s civil personality begins from birth alive; but the law protects, from conception, the rights of the unborn child.” However, according to the changes suggested by the draft report, the text would now state that “the civil personality of the human being begins from birth alive and ends with brain death; the law protects, from conception, for the purposes of this Codethe rights of the unborn child.”

“The expression ‘for the purposes of this Code’, if it was not used with the intention of segmenting the discussion about the guardianship of the unborn child, could very well be used for that”, analyzes Leal. The jurist clarifies that discussions about personality and abortion can be placed in the Civil and Constitutional contexts and, as proposed, the text would become more specific to the civil context. “If this division comes to fruition, I believe there will be more room for expanding the permission of abortion in the constitutional scenario, especially in the Supreme Court, since the frameworks for the protection of the unborn child are much clearer in the Civil Code than in the Constitution”, he adds.

“The restrictive expression ‘for the purposes of this Code’, which did not exist in previous codes or in draft codes, is a major step backwards. I don’t know of foreign code that contains this restriction”, says Chinellato. Even so, contrary to what the other two jurists think, for the professor, the text should not create an environment favorable to abortion as articles from the Civil Code could not be used to interpret the Penal Code, where the articles that define the abortion as a crime, as well as cases in which there is no penalty.

Morau, on the other hand, states that, in addition to opening up abortion, the device would influence other norms and the activities of society as a whole. “The fact that a provision is in the Civil Code does not mean that it will only generate effects for the Civil Code. On the contrary, it will generate effects for the entire legal system, for infra-legal norms, such as possible resolutions from the Federal Council of Medicine, among others”, counters Morau.

Changes are in line with Rosa Weber’s vote in action that wants to decriminalize abortion

The proposed changes to the Civil Code could serve to give greater legitimacy to Federal Supreme Court Minister Rosa Weber’s vote on ADPF 442, which concluded by decriminalizing abortion up to the 12th week of pregnancy. For the minister, as the Civil Code defines that a person’s legal personality only begins when they are born alive, abortion would be legitimate. In her view, even if article 2 of the norm guarantees the rights of the unborn child from conception, the mother would have the right to terminate the pregnancy, since the unborn baby does not have legal personality.

An excerpt from Rosa Weber’s vote even seems to dialogue with the apposition “for the purposes of this code”: “Thus, there is protection of the future rights of the unborn child, but there is no clear definition of what life is for the purposes of Civil Law. This idea of life to be protected is conditioned by criteria not defined by the Civil Code”, says the former minister in her vote.

ADPF 442 originated at a request from PSOL. The party relies on the argument that the unborn child does not have legal personality. This way, there would be no conflict between the rights of mothers who wish to abort and those of unborn children, with those of women being prioritized. The petition’s reasoning also leaves room for abortions to be legalized up to the ninth month of pregnancy.

Pacheco tries to separate himself from the work of jurists

The president of the Federal Senate, Rodrigo Pacheco, said that he is suffering attacks due to alleged “fake news” about the changes to the Civil Code. “I have been a victim of fake news, the most irresponsible and frivolous, stating that I would be in favor of polygamy, the removal of parental power and children’s autonomy to change sex”, published the parliamentarian on the social network.

The president claimed that the work of the Committee of Jurists is independent and that senators are not bound by the text that will become the draft law. Some conservatives have held Pacheco responsible, as he was responsible for setting up the commission, in addition to appointing the group’s members and establishing deadlines, which were considered short for such a complex issue. Experts have just 180 days to analyze the more than two thousand articles of the Civil Code and present proposals. Once presented, the text will be discussed by the National Congress.