The controversy over the interruption of the gestation of anencephalic fetuses will find an acceptable solution after the unification of medical and juridical criteria and concepts for the definition of the time of death. Presently the lack of this consensus generates dissention on the juridical interpretations. According to the Law 9434/97, in the cases of organ transplants, the established criterion is the brain death, whereas in the cases of crimes against life the set criterion is the clinical death.
Anencephaly is a malformation that belongs to the neural tube closure defects (NTD). When the defect occurs in the extension of the neural tube, it results in spina bifida. In the case that the defect appears in the distal end of the neural tube, the anencephaly occurs, leading to partial or complete absence of the brain and the skull. Most often, the defect is covered by a thick membrane of angiomatous stroma, but never by bone or normal skin.
Anencephaly is a malformation incompatible with life. Only 25% of the anencephalic fetuses display vital signs in the 1st week after birth. The incidence of anencephaly is about 2 per one thousand live births. The diagnosis can be established through ultrasound scan between the 12th and the 15th gestational week, and by the exam of the alpha fetoprotein in the maternal serum and in the amniotic fluid, an enzyme that is elevated in 100% of the cases about the 11th to the 16th gestational week.
The pregnancy of the anencephalic fetus results in innumerable maternal problems during gestation time. The FEBRASGO – Brazilian Federation of the Associations of Gynecology and Obstetrics lists these complications, such as: eclampsia, pulmonary embolism, increase in the volume of the amniotic fluid, and even maternal death.
Maternal complications during the gestation of anencephalic fetuses:
A) Extension of gestation beyond 40 weeks;
B) Association with polyhydramnios, respiratory distress, venous stasis, lower extremity edema;
C) Association with Specific Hypertensive Disease of Pregnancy (SHDP);
D) Association with peripheral vascular stasis;
E) Behavioral and psychological disorders;
F) Obstetric problems and complications in the outcome of childbirth of full term anencephalic pregnancy (parturition between 38 and 42 weeks of pregnancy, time considered to be normal);
G) Necessity of psychotherapeutic support on postpartum and puerperal period;
H) Need of registering the birth and the death of these newborns;
I) Need to block the lactation;
J) Higher incidence of maternal hemorrhage on puerperium for lack of uterine contractility;
K) Higher incidence of post-surgical infections due to the obstetric maneuvers of the full term delivery.
It must also be added that about 15-33% of the anencephalic fetuses display other severe congenital malformations, including heart defects such as hypoplastic left heart syndrome, coarctation of the aorta, patent ductus arteriosus, pulmonary atresia and single ventricle defect.
In regards to Medicine, there are two processes that demonstrate the time of death: the brain death and the clinical death. Brain death is the complete and irreversible cessation of the encephalic functions, as a result of an irreversible process from a known cause, notwithstanding that the brainstem is temporarily functioning. On the other hand, the clinical (or biological) death results from the irreversible cessation of the cardiorespiratory functions, leading to cardiac arrest and consequent brain death, for lack of blood supply, and resulting on further cellular necrosis.
According to the Federal Council of Medicine (CFM), the complementary tests to be conducted in order to verify encephalic death should evidence unequivocally: absence of brain electrical activity, or absence of brain metabolic activity, or absence of cerebral perfusion (Federal Council of Medicine, Resolution N. 1480, August 08, 1997). According to the CFM, in his Resolution N. 1752/04, the anencephalic are cerebral stillbirth, and for not having the cerebral cortex but only the brainstem, the criteria of cerebral death are inapplicable and unnecessary.
And since the anencephalic fetus is the result of an irreversible process, from a known cause and without any possibility of survival, for the absence of the brain vital portion, it is considered a brain dead fetus from the womb.Starting from these diagnostic criteria, there is no definition of abortion in this case, for abortion is the death of the fetus caused by the interruption of pregnancy. If the fetus was already dead, the interest protected by the penal law does not remain affected. The action of interrupting the pregnancy of the anencephalic fetus results atypical.
Currently there are diverse interpretations of the penal law being searched in order to authorize the therapeutic anticipation of the parturition of the anencephalic fetus. There is a mention to add a new rule of exclusion of illicitness to the article 128, however due to the absence of typicality, there is no illicit action. Other law scholars interpret the interruption of the anencephalic pregnancy as an impossible or putative crime, however since there is no dolo in the medical action of extraction of the retained fetus, it does not result in crime.
The Brazilian Supreme Court overthrew a preliminary injunction granted by Minister Marco Aurelio de Mello to the request of an argumentation of noncompliance of a fundamental precept (ADPF) to the therapeutic anticipation of the anencephalic pregnancy, based on the constitutional principles of freedom and preservation of the autonomy of will, legality, right to health and the dignity of the human being. We understand that these maneuvers are unnecessary, since the action is atypical. And if the action does not present typicality, there is no point to establish penal illicitness.
The Civil Law uses the criterion of recognition of life in order to acquire personality. The principal legal right to be protected is life. The unborn holds expectation of rights. When the brain death of the fetus is diagnosed, there is no legal right to be protected. According to Minister Marco Aurelio de Mello [1], the interruption of pregnancy in the case of an anencephalic fetus does not characterize abortion, for there is no expectation of life outside the womb. According to Minister Joaquim Barbosa, from the Brazilian Supreme Court [2], “the anencephalic fetus, even though is biologically alive (because it is made of cells and tissues), does not hold juridical protection.” According to Prof. Claus Roxin [3], “the vegetative life is not sufficient to make from something a man and when there is encephalic death, the protection to life ends.” Even the law of organs transplant (Law 9.434/97), when setting the moment of death of a human being as the time of encephalic death, reinforces this argument.
Therefore, we understand that the fetus, since its conception until the moment that it is clinically recognized the anencephaly, was deserved of penal protection, for the presupposition of existence of life. Notwithstanding from the moment that the encephalic death is diagnosed, it ceased to be protected by the article 124 of the Penal Code.
We conclude then for the inexistence of life, and that it should be noted the atypicality of the interruption of the pregnancy of anencephalic fetuses, for the absence of a juridical right to be preserved, provided that it remains verified and registered from at least 2 medical reports; making it possible, therefore, for the pregnant woman, the option of therapeutic anticipation of the anencephalic parturition.
Notas
[1] Preliminary injunction that permitted abortion on brainless fetus is overthrown. Zero Hora newspaper, Porto Alegre, September 21th, 2004.
[2] Habeas Corpus prejudiced. Consultor Jurídico. Retrieved from: <http://conjur.uol.com.br/static/textos/25241,2.shtml> In September 8th, 2004.
[3] ROXIN, Claus. The Protection of Human Life Through the Penal Law. Retrieved from: http://www.mundojuridico.adv.br/html/artigos/documentos/texto_Roxim.htm In: September 8th, 2004.