Da (in)compatibilidade de vida extrauterina à antecipação terapêutica do parto – diálogos entre os estudos de gênero e o discurso jurídico nos casos de aborto por anencefalia fetal

Abstract

It is in the wake of the Civil Law, Constitutional emerges the need for a review of legal categories, considering that the law does not achieve more success to be analyzed separately from other sciences. The dilemmas of contemporary call into question traditional concepts, requiring the interpreter applicator a new legal position, away from mere subsumption rules and with a look systematically, together with various fields of knowledge, or in an interdisciplinary perspective. One of the most recent cases that challenged the Brazilian legal system was the trial of ADPF No. 54, 2004, by the Supreme Court. Briefly, the Plenary of the Court upheld the request contained in the Lawsuit filed by the National Confederation of Workers in Health (CNTS), to declare unconstitutional interpretation that the termination of pregnancy of anencephalic fetus conduct is typified by the Criminal Code. Envisions that there is an ambiguity in the beginning of life criteria and determination of death. It occurs to produce a definition for life and death is primarily a task of philosophical and choice of criteria for determining it is not legal, though it is a medical matter. Besides the argument of brain death, it is common to consideration of a mismatch of extrauterine life anencephalic fetus, just as there are those who argue that we are not talking about abortion in these cases, but in anticipation of childbirth therapy, because the fetus only may be alive throughout pregnancy, without the possibility of life after birth. This theme puts the lawyer's challenge to break the paradigm of discourse that insists on being dichotomous and conceptualist, to ensure and promote the dignity of those who do not fall in generalizing models, whose purpose is to provide preliminary answers for the future. Here the proposition to be shared on the basis of gender studies, arguing the reflection on the possibility of intersection of these as a possible means of thinking on abortion in general and, crucially, in cases of anencephaly, from the perspective of Human Rights Women, being a topic that requires urgent bioethical and legal contemplating it as a manifesto for dignity.