In March, the Federal Supreme Court (FSC) started judging a lawsuit alleging unconstitutionality brought in 2005 by former attorney-general Cláudio Fonteles who is fighting the use of embryonic stem cells for research purposes, arguing that the Bio-security Law enacted three years ago, authorizing the use of embryos in research in a blastocyst stage (up to five days after fertilization), contravenes the 5th article of the Federal Constitution that guarantees the right to life.
Reporting Judge Carlos Ayres Brito, and Ellen Gracie, FSC president at the time, voted in favor of the research, which therefore already has two votes from the court’s eleven trial judges. The hearing, however, was interrupted by a request to examine the file by Judge Carlos Alberto Direito. “The material is extremely controversial and highly complex. One must reflect on it more deeply, so that all the arguments can be weighed up,” justified Direito. Because of the FSC rules, whoever asks to view the files has up to ten days (which can be extended twice for equal periods of time) in which to return the proceedings, which may be subject to a delay before voting is completed.
When does life begin?
The questioning raised by the former attorney-general led to the first public hearing in FSC’s history, as the court, in May of last year, invited 22 scientists to reply to the question that is at the core of Fonteles questioning: when does life begin” The purpose of the hearing, of an “instructional” nature, was to provide background information to justify the vote that the reporting-judge presented in March to the other members of the Court, in a 74-page long document.
Judge Celso de Mello considered this case most important ever judged by the FSC and Judge Ayres Brito suspects that this is the first time that a constitutional court has had to deal with questioning of the scientific and therapeutic use of embryonic stem cells, making its decision one that is of “interest to all humankind.”
In his vote, Ayres Brito stressed from the outset that the Brazilian Constitution is “deadly silent” about when human life begins. “When it speaks of the “dignity of the human being”, it is the human being in the sense that is at the same time notarial, biographic, moral and spiritual. When we talk about the “rights of human beings”… We are talking about the rights and guarantees of the individual person – people, someone – of Brazilian or foreign nationality, but always a human being who is already born and to whom the fundamental right to life applies. For the judge the question is what aspects or moments of life are effectively protected under constitutional right and “to what extent.”
He referred to the Civil Code, which protects the rights of the unborn child (defined as a “being already conceived, but who is still in the mother’s womb”) as from conception, to the prohibition of abortion, and to the law that authorizes therapeutic abortion, in those cases in which pregnancy, for example, is the result of rape, to show that from the point of view of the law, the legal entity to be protected is always inside the female body. “Not on a Petri dish, a metallic cylinder or any other mechanical recipient of embryos that did not require sexual intercourse to come into being”, emphasized Ayres Brito.
He recognizes that the possibility of “something” becoming a human person is already sufficient to “protect it, under the constitution, from external forces.” But he stresses: “The embryo is the embryo, the fetus is the fetus and the human person is the human person. The latter does not precede the metamorphosis of the other two organisms. It is the end product of this metamorphosis.”
The arithmetic of love
In his argument he does not deny what he qualifies as the disconcerting arithmetic of love, in which one plus one equals one: the start of human life coincides with the “precise instant of the fertilization” of an egg by a sperm. But he highlights the definitive role of the uterus for guaranteeing the future of the new being: “Though every human gestation begins with an equally human embryo, not every human embryo gives rise to an equally human gestation.” This is the case with the embryos referred to in the Bio-security Law, which derive from fertilization without human coupling (“outside sexual relations”) conducted outside women’s bodies, within test tubes.
It is not a question, therefore, of interrupting a human pregnancy, “since no female species gets pregnant at a distance,” which puts it outside the realm of the crime of abortion. “This way of appearing in a laboratory and remaining confined to a test tube makes the embryo incapable of reproductive progression.” Therefore, the viable embryo obtained by test tube fertilization “stops short at the first degree of what would be its genetic evolution… Because it is unable to undergo the metamorphoses of hominization that would result from its possible implantation.”
Having concluded this part of his argument, Ayres Brito refers to a series of articles in the Constitution to state that there is a constitutional basis for an adult couple to resort to assisted reproduction techniques and that the law also provides for family planning based on the principles of human dignity and responsible parenthood. “The law does not concern itself with the process whereby fertilization of the female egg becomes viable. What matters is to enable a couple to overcome the obstacles of their infertility and therefore to contribute to the perpetuation of the human species.” He also adds that bearing in mind the “unsurpassable legal model of family planning,” the recourse of in vitro fertilization does not oblige implanting inside the body of the woman all the fertilized eggs. “Because if this were done, unbeknown to the couple, it would be extremely dangerous for the life of any woman who undergoes the unlucky situation of compulsorily implantating a large number of embryos. Quite apart from anything else this imposition would imply treating the female sex in an inhuman and degrading way, in contravention of the fundamental right that is included in paragraph II of Article 5 of the Constitution.” He finalizes: “The degree of civilization of a people is measured by the degree of freedom of its women.”
Solidarity-based constitutional rule
In the light of these legal limits, the judge argued that for the Bio-security Law there would remain three alternatives: to condemn the embryos “to life imprisonment in frozen test tubes,” to let medical establishments specialized in assisted precreation “proceed in their arduous task of throwing into the waste bin every embryo that was not required for the purposes of human procreation,” or authorize their use in research, as provided for in Article 5. He recalls the constitutional rule of “fraternal or solidarity-based inspiration, provided for in paragraph 4 of Article 199 of the federal Constitution, which transfers to common law the possibility of helping to preserve the health of the individual, – first, from the qualification conditions and continuity of his life.” This translates into legislation that deals with encephalic death in order to authorize the donation of organs. In law the human brain is a type of watershed: those who preserve their neural functions remain alive for legal purposes. Anyone who no longer has them has passed the boundaries of life on this side of the grave,” he said, quoting Mário de Andrade.
According to the judge, the legislation authorizing organ donation and Article 5 of the Bio-security Law, which provides for the use of embryonic stem cells, form the perfect parallel. The embryo “lacks all possibilities of gaining the first nerve-endings that are the biological announcement of a human brain in gestation. In a word, there is no brain – either concluded or in formation.”
Finally, in response to the question raised by the former attorney-general as to where life begins, he says: “and now no longer in a conceptually provisional manner but in a definitive way, human life already perfectly adorned with the attribute of a civil personality is the phenomenon that occurs between birth with life and brain death.”
For Ayres Brito the choice of the Bio-security Law does not mean rejecting or despising the in vitro embryo, “much less cold-blooded murder.” This is a firm willingness to overcome another person’s misfortune. On this point, regarding which he mentions the triumphs of “fraternal constitutionalism,” his vote gains a moving tone: the victims of syndromes or dystrophies that place their hopes of the future in research with stem cells are named.
As if all these arguments against the origin of this action currently being judged were not enough, I bring to the fore yet another invocation of a constitutional order,” he stated. He once more invoked the Constitution to recall that health is the “right of all and a duty of the State” and that science also forms part of the “catalog” of fundamental rights of the human person. He mentions paragraph 1 of Article 218 of the Constitution: “Basic scientific research will be given priority treatment by the State, bearing in mind the public good and the progress of science.”
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