Brazil: Landmark Decision on Fetal Anencephaly

Many thanks and congratulations to Beatriz Galli, recently appointed as the United Nations’ Special Rapporteur on the Right to Sexual and Reproductive Rights in Brazil. An LL.M. graduate of our International Reproductive and Sexual Health Law Program and a Policy Associate for Latin America and the Caribbean at Ipas Brasil, Beatriz has kindly prepared the following comment on this important decision.


On April 12, 2012, the Federal Supreme Tribunal in Brazil issued a landmark decision on an Allegation of Non-compliance with a Fundamental Norm – Arguição de Descumprimento de Preceito Fundamental (ADPF 54) in which the majority of the Tribunal Ministers declared the unconstitutionality of the legal interpretation that Penal Code provisions related to abortion (Articles 124, 126, caput, 128, I and II) should apply in cases of fetal anencephaly.

Such cases should be referred to as therapeutic anticipation of delivery, according to the Constitution’s principles and norms, which include the dignity of the human being (Article 1, IV); the principles of legality, liberty and autonomy (Art. 5, II) and the right to health (Art. 6, caput, and 196). The plaintiffs alleged that anencephaly is a fetal abnormality incompatible with life outside the uterus which leads to a situation of high risk during pregnancy and delivery.  Premature delivery is the only effective medically therapeutic treatment indicated for women, since there is no possibility of reversing fetus unviability.  The decision also recognized each woman’s right to access this health procedure without prior judicial authorization or specific permission.

The Minister-Rapporteur Marco Aurélio, in his vote, noted that the issue in debate involved relevant issues such as human dignity, enjoyment of life, liberty, self-determination, health and the full recognition of individual rights, more specifically the sexual and reproductive rights of thousands of women, stating that due to the unviability of the fetus, there was no real conflict of fundamental rights.  He also stated that religious freedom in a secular state means that religions should not guide state treatment of other fundamental rights such as the right to self-determination, right to mental and physical health, the right to privacy, the right to free of expression, the right to sexual orientation and the right to liberty in the area of reproduction.

Original decision in Portuguese is online here 

Votes of Tribunal members contain the arguments leading to the decision:
Vote of Marco Aurélio.   Vote of Ricardo Lewandowski.  Vote of Luis Fux.

Video: Closing Argument by Dr. Luis Roberto Barroso (15 min) online in Portuguese, with English subtitles

Press Release from the Center for Reproductive Rights

“Prenatal Management of Anencephaly,”  by R.J. Cook, J.N. Erdman, M. Hevia and B. M. Dickens, (2008) 102 International Journal of Gynecology and Obstetrics 304-308.  Original article online in English.
 Spanish translationPortuguese translation.

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