Carolina Pimentel and Daniella Jinkings Reporters Agência Brasil [rewritten by translator]
Brasilia – At the beginning of 2004, a case in the form of a writ of habeas corpus came before the Brazilian Supreme Court in which a pregnant woman sought permission to have an abortion because she was carrying a fetus with a serioius defect known as anencephalia. Before the court reached a decision, the baby was born and died. The court decided the case was closed.
However, shortly thereafter, the National Confederation of Health Providers (“CNTS”) filed a lawsuit at the Supreme Court in favor of making such abortions legal. Because the case dealt with “fundamental precepts” in the Constitution (Article 5) and the Civil Code (lei 10.406/02) that recognize the right to life and life as beginning at birth, the case became known officially as “Arguição de Descumprimento de Preceito Fundamental (ADPF) 54.”
On July 1, 2004, the Supreme Court justice selected to handle ADPF 54 (“relator”), Marco Aurelio Mello, issued an injunction permitting abortions in cases of anencephalia. On August 18, 2004, the country’s then chief prosecutor (“procurador-geral da República”), Claudio Fontelles, sent the Supreme Court a brief opposing legalization of abortion in cases of anencephalia. On October 20, 2004, the full Supreme Court voted (7-3) to suppress justice Mello’s injunction (the following justices (“ministros”) voted against the injunction: Eros Grau, Joaquim Barbosa, Cezar Peluso, Gilmar Mendes, Ellen Gracie, Carlos Velloso and Nelson Jobim. Justices Carlos Ayres Britto, Celso de Mello and Sepúlveda Pertence voted in favor).
In August and September, 2008, public hearings on the case were held before the Supreme Court. Scientists, specialists, religious leaders and politicians testified. Almost a year later, in 2009, the then acting chief prosecutor (“procuradora-geral da República interina”), Deborah Duprat, sent the Supreme Court a brief in favor of allowing anencephalia abortions.
Finally, this year ADPF 54 returned to the Supreme Court docket and on April 11, 2012, the justices began voting.
At the moment, Brazilian legislation (that is, the Penal Code, which dates from the 1940s) permits abortion only in cases of rape and when there is risk to the mother’s life. Abortion under any other circumstances is a crime punishable by one to three years in jail for the mother, and one to four years in jail for the doctor performing the abortion.
The final decision was 8-2 in favor of allowing abortions when there is anencephalia. The majority opinion basically noting that as a fetus with anencephalia does not have a brain and will not survive, there is no crime in such abortions. The opposition focused on a narrow definition of life and fear that this decision could be a wedge that would allow more kinds of abortions to become legal. The justices who voted in favor of decriminalizing abortions in cases of anencephalia were: Gilmar Mendes, Marco Aurélio Mello, Rosa Weber, Joaquim Barbosa, Luiz Fux, Cármen Lúcia, Celso de Melo and Carlos Ayres Britto. Justice Ricardo Lewandowski and the Chief Justice, Cezar Peluso voted against decriminalizing. Justice Antonio Dias Toffoli recused himself because when he was head of the office of government attorneys (“advogado-geral da União – AGU”) he positioned himself in favor of decriminalization.
Allen Bennett – translator/editor The News in English – content modified
Link - Anencefalia: Mendes vota a favor do aborto, mas sugere que Ministério da Saúde crie normas para procedimento
