On June 17, 2004, the National Confederation of Health Workers (Confederação Nacional dos Trabalhadores da Saúde, CNTS), a confederation of labor unions representing workers from the Brazilian health sector, filed a lawsuit for breach of a fundamental constitutional principles (arguição de descumprimento de preceito fundamental, ADPF) against the President of Brazil.
The President was a respondent for procedural purposes only, as the ADPF is aimed at protecting a broad range of citizens’ rights, and decisions in ADPF lawsuits benefit all Brazilian citizens who may be affected by or benefit from the judgment. The case aimed to protect citizens, notably pregnant women, from being threatened by judges and courts with criminal charges for seeking to interrupt pregnancies of anencephalic fetuses, meaning that parts of the brain and skull do not form during pregnancy, making it impossible to survive after birth.
CNTS sought a declaration that construing the therapeutic interruption of a pregnancy with anencephaly as a crime would be a breach of certain fundamental principles of the 1998 Brazilian Constitution, namely the right to dignity, liberty, autonomy of will, and the right to health (respectively Articles 1, VI; 5, II; 6 and 196 of the 1998 Brazilian Constitution).
CNTS’s key argument was that the anencephaly made life impossible out of the uterus, and only a fetus with actual capacity to become a (legally protected) person should be protected by Brazilian law, and the subject of the crime of abortion in the penal code. (Under the Brazilian Penal Code, self-inflicting or assisting abortion is a crime, and can carry up to ten years imprisonment, except in cases where the pregnancy poses a risk tot eh woman’s life and in cases of rape.) The proceedings included a number of public hearings and submission of amicus curiae briefs through which medical, academics, religious entities and other stakeholders were heard.
Reporting Justice Marco Aurélio Mello’s leading vote included a variety of arguments, but his starting point was that Brazil is a secular State, which he noted was often forgotten by judges and courts when considering arguments of religious nature. On these grounds, he concluded that religious arguments could not form the legal basis of a court decision.
Justice Marco Aurélio then went on to consider technical and medical issues on the nature of anencephaly, based on the various technical reports submitted to the STJ. On the basis of these reports he was convinced that an anencephalic fetus does not have any prospect of becoming a living human being, as the fetus lacks key components of the brain and its supporting systems. Therefore, an anencephalic fetus would also never because a “person” from a legal perspective, entitled to rights and subject of obligations under the Brazilian legal system.
Justice Marco Aurélio also dismissed technical and legal arguments concerning fetuses, such as that anencephalic fetuses should be delivered for purposes of donation of organs, or that fetuses were protected by the right to life under the Constitution. He concluded based on technical evidence that donation of organs was clinically impossible given the health conditions of the fetus. He also rejected, as amounting to torture of mothers and disrespect to basic rights to life, autonomy, and health, that a woman should be forced to carry a fetus with no chances to survive out of the uterus regardless of the purpose. He further concluded that fetuses did not enjoy an absolute right to life, as these rights had been side-stepped even for heathy fetuses in cases where pregnancy poses a threat to the woman’s life or results from rape.
The STJ, led by Justice Marco Aurelio, ultimately accepted by majority that CNTS’s distinction between therapeutic interruption of pregnancy in instances where the fetus has no real expectation of survival outside of the uterus and abortion as generally defined as a criminal conduct by the Brazilian Criminal Code (Articles 124, 126 and 128, I and II of the Brazilian Criminal Code (Decree-Law No. 2,848/40). On these grounds, the STJ declared unconstitutional the inclusion of therapeutic interruption of pregnancy in cases of anencephaly as an abortion for purposes of the Brazilian Criminal Code.
In this landmark case, the Brazilian Supreme Court decided by majority vote that it is a breach of the Brazilian Constitution to construe the therapeutic interruption of pregnancy in cases of anencephaly as constituting the crime of abortion under the penal code. This decision was described by the STJ judges, including dissenting judges, as the most important decision of STJ’s history, because it ultimately redefines the constitutional reach of the concept of “life” and its protective regulation. The 433-page majority decision took nearly eight years to be issued, from June 2004 to April 2012. Thus, since 2012 the interruption of the pregnancy of an anencephalic fetus is not considered abortion in Brazi