A criminalização do aborto no Brasil e o impacto sobre direitos constitucionais da mulher

Abstract

In Brazil, voluntary termination of pregnancy is prohibited, except in exceptional cases. However, abortion is known to be a common and secular practice, present in the lives of thousands of women of all races and economic classes. Therefore, this paper aims to weigh arguments in defense of decriminalization of abortion, analyzing the nuances of the fetus and the impacts that criminalization brings to pregnant women and the state. In addition, it aims to explain the deficiency of the State regarding the performance of abortions provided for by law and the lack of investment in prevention policies. Finally, a relationship of abortion crime is made in light of fundamental rights and constitutional principles. Therefore, the methodology used was guided by the qualitative technique of bibliographic survey and critical analysis through the hypothetical-deductive method. It was found that there is no harm to the fetus until the 18th week of gestation because, from a neurological point of view, it does not have a fully developed cerebral cortex, so it is not able to feel pain, or until the 20th week, under the moral perspective, considering that even this time of gestation may not be considered a person. It has been found that the criminalization of conduct does not prevent women from aborting, thus the illegal abortion practice has unreasonable consequences for the life and health of women, capable of leading them to death. In this sense, the implications of induced abortions generate social and economic costs for the state, as women need medical assistance after induction of unsafe abortion. It was found that the state is not prepared to perform abortions guaranteed by law, since hospitals accredited to perform them do not have information consistent with the standards set by the Ministry of Health, and there is no investment by the government to prevent unplanned pregnancies and consequent miscarriages through sex education policies, family planning and the spread of long-term contraceptive methods. In the end, it has been ensured that the criminalization of abortion is not consistent with fundamental rights such as women's right to life, health, equality, freedom, privacy and autonomy, as well as going against constitutional principles such as the principle of secularity of the State and proportionality. For these reasons, it is not considered appropriate to remain abortion as a crime.