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Legislation

Battle in the courts

Law that permits the use of embryonic stem cells is contested by the attorney-general of the Republic

On May 30, Cláudio Fonteles, the attorney-general of the Republic, filed with the Federal Supreme Court a direct claim of unconstitutionality in which he questions the Law on Biosafety, which permits the carrying out in the country of researches with embryonic stem cells. Fonteles contests article 5 of the law, sanctioned in March, which opened a door for this research, by providing for the use of human embryos stored in reproduction clinics that are regarded as unviable for implantation in the womb or have been frozen for over three years. For Fonteles, these provisions clash with the protection that the Constitution confers on life and on the dignity of the human person. “Life happens on fecundation and from then on. Article 5 and other paragraphs of the law fail to observe the inviolability of the right to life, because the human embryo is human life”, says Fonteles. A Catholic, the attorney-general admits that religious convictions influenced him. “Those who think contrarily to me are fervent agnostics. If you ask whether there is a Catholic vision in the lawsuit, I say that there is. But it is based on scientific conceptions”, he said.
On June 21, Fonteles took up the cudgels again against the law. He also claimed the unconstitutionality of the article that establishes the competence of the National Biosafety Technical Commission (CTNBio) to decide whether transgenics cause an environmental impact.

Technical arguments
In the lawsuits against stem cells, Fonteles cites excerpts from specialists in bioethics and sexuality. Some of the names are routinely enlisted by anti-abortion activists, like French geneticist Jérôme Lejeune – who died in 1994 – and Spanish surgeon Damián-García-Olmo. On June 15, the Ministry of Health reacted to Fonteles’ lawsuit and forwarded to the Office of the Federal Attorney-General a document with technical arguments to be used in the legal defense of the use of embryonic stem cells in researches. In the text, the ministry advises that the Law on Biosafety in actual fact protects the human embryos stored in reproduction clinics. Before the law, there was no rule to regulate their use.

Fonteles’ theses have juridical problems, in the opinion of Oscar Vilhena, the Professor of Constitutional Law at the Pontifical Catholic University (PUC), of São Paulo. The chief of them, says Vilhena, is resorting to the debate about the moment at which life should begin to be protected by Law. “The United States authorizes abortion up until five months of pregnancy, since in this stage life outside the womb is impossible. Our code authorizes abortion when the case is one of rape, the mother is less than 14 years old, or the pregnancy offers the mother a risk of dying. In these cases, then, is the fetus not human?”, he asks. “Brazilian legislation gives the fetus less protection than it gives to life. In an authorized abortion, the law permits the needs of others, such as the needs of the mother, to prevail over the needs of the fetus”, he says. According to Vilhena, it is possible to transpose this line of thinking to stem cells. “Why does the interest of embryos without any viability and without any real expectation of life have more value that the scientific knowledge capable of solving the problem of thousands of people?” Your turn, Federal Supreme Court.

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