TJ-SP says preventing abortion of fetus with no chance of life is double punishment

The Court of Justice of São Paulo (TJ-SP) considered that a lower court decision that prohibited the abortion of a baby who had no chance of extrauterine life constituted double punishment for the pregnant woman. The information is Folha de S. Paulo. The process runs in secrecy of justice.

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The first instance decision took place in the district of Cabreúva, in the interior of São Paulo. An expert evidence requested by the Court advised performing the abortion to minimize possible gestational risks and “possible mental health disorders” of the woman. However, the judge decided that the alleged risks for the pregnant woman could not override the right to life of the fetus. The baby was diagnosed with absent kidneys, absence of amniotic fluid and impaired lung development.

After the decision, the Public Defender’s Office of São Paulo appealed to Justice so that the abortion could be carried out. The request was accepted on a preliminary basis, in December last year, and then confirmed by a collegiate body, which allowed the procedure to be carried out.

“There will be no life to be protected by criminal law, [uma vez que] the unborn child is, unfortunately, fated to lethality, with no indication of recovery by treatment or therapy, as repeated by the technical reports”, said the rapporteur of the case, disembargator Edison Tetsuzo Namba. In the decision, the magistrate mentioned the decision of the Federal Supreme Court ( STF) that authorized abortion in case of anencephaly, stating that the case of the pregnant woman is similar.

“On the other hand, the fundamental rights of women are at stake, such as the right to life, health and autonomy. The criminalization of the interruption of pregnancy, when the extrauterine life of her child is unfeasible, would constitute a true double punishment, to the extent that the patient would be forced to lead a life proven to be predestined to failure,” he said.

Despite this, the judge’s understanding was that the case was unrelated to the decision of the STF because the baby did not have any brain damage that would remove “the notorious capacity to feel or suffer”.

Life protection from conception

The lawyer specialized in Civil Procedural Law Silvana Neckel pointed out that, although the TJ-SP has judged that it is possible to perform an abortion in the aforementioned case, in Brazil the legislation only fails to apply punishment for the procedure in cases of pregnancy resulting from rape, Fetal anencephaly and risk of death in pregnant women.

“The chances [em que não há punição para a realização do aborto] are restricted, and it is not possible to interpret the legislation extensively in the specific case”, says the specialist. According to the lawyer, although the rapporteur cited the case of anencephaly, the case in question is different.

“It is understood that it is not possible [a equiparação à anencefalia para autorizar o aborto] given the existing differences from the analysis of the specific case in relation to the judgment, and the legal impossibility in the face of the protection of the life of the unborn child provided for in the Brazilian legal system”, emphasizes Silvana, highlighting that the legislation guarantees the right to life as inviolable and the protection from intrauterine life.

“That is, he [o bebê] has the right not to be killed, and it is up to the State to respect this right guaranteed by the legal system and prevent the pregnant woman or any person from attacking intrauterine life”, he stressed.