LIFE, AUTONOMY AND ABORTION: REPRODUCTION AND FREEDOM OF WOMEN IN THE SENTENCE ADPF 54

Abstract

The Brazilian Penal Code of 1940 classifies induced abortion as a crime, according to articles 124 to 127. There are only two legal exceptions, specified in article 128, that allow abortion to be performed: I – when there is no other way to save the life of the pregnant woman (necessary abortion); II – in cases of pregnancy resulting from rape. In addition to these, the STF added the hypothesis of fetal anencephaly in the judgment of Action for Non-Compliance with Fundamental Precept No. 54, in April 2012. In this case, the Rapporteur, Minister Marco Aurélio, argued that the termination of an anencephalic pregnancy does not constitute a new hypothesis of permitted abortion, since, without the viability of extrauterine life, the termination would not constitute an abortion, and the conduct is therefore atypical. It is impossible to accurately determine the number of abortions performed annually worldwide and the social impacts of the different hypotheses for criminalizing this practice, since few countries have reliable data. The lack of precision in data on abortion is understandable in countries where the practice is criminalized, such as Brazil, where there is no official data. Thus, estimates are based only on the number of complications resulting from abortion that reach the public health system.

The underreporting of abortion cases is an obstacle to the development of criminal legislation adapted to social realities. In Brazil, as in many other countries, abortion is a serious public health, social justice and human rights problem. The criminalization of abortion aggravates the social and religious stigma experienced by women and creates an environment characterized by symbolic gender violence.

The high maternal mortality rate in Brazil is intrinsically linked to the prohibition of abortion. In clandestine locations, women are subjected to unsafe and inadequate conditions during the procedure. According to the Ministry of Health, abortion is the fourth leading cause of maternal death in the country, due to hemorrhages and infections. Thus, the legalization of abortion has a direct impact on the safety of women who choose to terminate their pregnancies.

The effect of abortion on women's physical and mental health, as well as on society, is closely linked to the legal acceptance of the procedure and easy access to corresponding health services. In countries where abortion is more restricted, maternal mortality rates are significantly higher. In contrast, in nations where abortion is permitted, no woman needs to put her life at risk to terminate a pregnancy.

Thus, abortion is considered a crime and a right. Although the Brazilian Penal Code criminalizes the practice, with the exception of two specific situations, several international human rights treaties, to which Brazil is a signatory, recommend the review of punitive laws related to abortion as a way of protecting women's sexual and reproductive rights.

One example is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified in 1984, which guarantees women the right to comprehensive care regarding their sexual and reproductive health. Based on this convention, Brazil made a commitment to protect women from the negative health impacts resulting from abortion.

The international system of human rights protection, adopted by the current Federal Constitution (CRFB/88), enshrines the principle that abortion should be treated as a public health issue by the States, which implies the elimination of all punitive sanctions applied to women who voluntarily undergo a self-abortion, removing this issue from the scope of Criminal Law.

The objective of this study is to investigate the crime of abortion, using Critical Criminology, the Feminist Movement and International Human Rights Law as theoretical frameworks. The research seeks to explore the tensions between the understanding of abortion as a crime or as a human right, seeking to identify which of these perspectives is most compatible with constitutional principles.

This work presents the international legal frameworks of human rights ratified by Brazil that are related to abortion; analyzes the foundations of Critical Criminology and the Feminist Movement, evaluating how these fields dialogue and apply to the issue of abortion; and examines the symbolic function of criminalization, as well as the explicit and implicit functions of the criminal norm.

The relevance of the topic is highlighted by the scale of abortion both in Brazil and worldwide. The Ministry of Health estimates that more than one million abortions are performed annually in Brazil alone. However, this figure is only an estimate, due to the clandestinity of the practice, which reinforces the need for in-depth research on the subject.

Research into the crime of abortion becomes urgent when considering the high rates of preventable maternal mortality resulting from clandestine abortions.

The relevance of research into abortion is also evident in the interdisciplinarity that the study of the topic demands. In order to understand the social impact of the criminalization of abortion, it is necessary to seek elements not only from legal science, but also from medical and social sciences.

Even within the legal sciences, research into abortion as a crime will require analyses of Criminal Law, Constitutional Law and International Human Rights Law. From a legal perspective, the research is justified by the magnitude of the legal rights under discussion, such as life, health and freedom.

In view of this, the following research problem is presented: How does the judgment of ADPF 54 reflect the tensions between women's reproductive autonomy and the right to life, and what are its implications for women's freedom in Brazil?

The research is based on the hypothesis that the criminalization of abortion is illegitimate, not only because it is inadequate to protect the life of the fetus, but also because it threatens other legal rights not explicitly covered by the criminal law, such as the human right of women to life, health and to live free from discrimination or cruel, inhuman or degrading treatment.

1.1 OBJECTIVES

The objectives that guided the research carried out are divided according to their level of scope and specificity. Thus, the general objective and its respective specific objectives presented in this subsection were defined.

1.1.1 General objective

The general objective of this dissertation is to develop a theoretical basis on the unconstitutionality of the criminalization of abortion, specifically as a violation of women's human rights, as well as to analyze how the judgment of ADPF 54 impacts the reproductive autonomy of women in Brazil, considering the ethical and social implications related to women's life and freedom."

1.1.2 Specific Objectives

To achieve the proposed general objective, the following specific objectives were listed:

- To systematize international legal frameworks on human rights ratified by Brazil regarding abortion; to point out the premises of Critical Criminology and the Feminist Movement, analyzing how they interact and applying them to the issue of abortion;

- To investigate the symbolic function of criminalization and the declared and undeclared functions of the criminal norm;

- To undertake a critical analysis of the positions adopted by procedural actors in lawsuits pending before the STF related to abortion.

1.2 JUSTIFICATION AND RELEVANCE

The criminalization of abortion is an issue of great importance in the legal, social and public health scenario in Brazil. The research is justified by the urgent need to address the disparity between current legislation and women's human rights, as well as by the critical analysis of the role of criminal law in regulating abortion, especially in light of international human rights treaties ratified by Brazil.

The high number of clandestine abortions in the country, estimated at more than one million per year, demonstrates the ineffectiveness of the current criminal policy and the serious risks to the health and lives of women, especially the most vulnerable. Criminalization aggravates the social and religious stigma associated with abortion, perpetuating a cycle of symbolic violence and gender discrimination. In this context, the relevance of this research lies in its potential to influence debates on the decriminalization of abortion, offering an interdisciplinary analysis that covers both the legal aspects and the social and public health impacts.

In addition, the study is justified by its contribution to the dialogue between criminal law and women's fundamental rights, in particular the right to health, self-determination and dignity. The critical analysis of the STF decisions, especially in the ADPF 54 trial, stands out as relevant for understanding how case law can promote or restrict women's reproductive rights, serving as a reference for future discussions on the decriminalization of abortion in Brazil.

Finally, the research seeks to contribute to the formulation of more effective and fair public policies, based on constitutional principles and international agreements that guarantee the protection of women's reproductive rights and health.

1.3 STRUCTURE OF THE DISSERTATION

This dissertation is organized into five chapters, each one playing a fundamental role in the construction and development of the analysis on the theme "Life, Autonomy and Abortion", with a focus on reproductive rights and women's freedom, especially in light of the ADPF 54 trial by the Supreme Federal Court.

The first chapter, the introduction, presents the central theme of the work, which is the criminalization of abortion in Brazil and its implications for women's reproductive autonomy. Using a critical approach, the research's problematic is exposed, which questions whether abortion can be seen as a human right and what are the legal and social consequences of maintaining its criminalization.

The introduction also provides the justification for the study, highlighting the relevance of the topic in the context of fundamental rights and public health in Brazil, with an emphasis on the high rates of maternal mortality resulting from clandestine abortions. Finally, the general and specific objectives of the dissertation are outlined, including the analysis of the jurisprudence of the STF and international discussions on reproductive rights, in addition to providing a brief introduction to the methodology used.

The second chapter is dedicated to reviewing the literature that theoretically supports the dissertation. The author begins with a discussion of the concept of reproductive rights, both at the international and national levels, exploring the evolution of these guarantees over time. Important international legal frameworks are addressed, such as the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in addition to other conventions and treaties ratified by Brazil.

The dissertation then provides a historical perspective on the criminalization of abortion in Brazil, highlighting how criminal legislation has evolved from the imperial period to the present day, analyzing the changes and setbacks in the treatment of abortion by the legal system. The chapter also examines feminist critical criminology, which proposes the delegitimization of criminal law as an instrument of social control, especially when applied to women's reproductive health. The main theories of feminist criminology and its critique of the criminalization of abortion as a form of symbolic violence against women are explored.

The third chapter describes the methodological approach adopted in the research. The dissertation uses a qualitative approach, based on documentary, bibliographical and case law analysis. The author explains that the main documents analyzed were the records of ADPF 54, the related case law and the contributions of experts who participated in the trial as amicus curiae.

A review of criminal, constitutional and internationalist literature is also carried out, as well as works in the areas of criminology and public health, which deal with the criminalization of abortion and its social impacts. This chapter details how the data were collected and organized, describing the use of primary sources (court decisions and official documents) and secondary sources (doctrines and academic studies), in addition to justifying the choice of critical criminology and the feminist movement as the theoretical basis for the analysis. The chosen methodology seeks to ensure an interdisciplinary analysis of the problem, dialoguing between Criminal Law, Human Rights, Sociology and Public Health.

The fourth chapter presents the results of the research and a critical analysis of the ruling on ADPF 54 by the Brazilian Supreme Court. The author examines in detail the context of the ruling, highlighting the importance of public hearings and the role of the justices in forming the understanding that culminated in the decision to atypically terminate a pregnancy in cases of anencephaly.

The analysis of the justices' interpretations is a central part of this chapter, where the author discusses how each of the judges positioned themselves in relation to reproductive rights, women's dignity and the protection of life. This chapter also addresses the influence of this ruling on the promotion of women's reproductive autonomy, highlighting the impact of the decision on the debate on the decriminalization of abortion in Brazil. In addition, the chapter reflects on the implications of this ruling for the future of public health policies and for the penal system, emphasizing the symbolic nature of the criminalization of abortion and its social repercussions, especially among the most vulnerable women.

The fifth and final chapter summarizes the main conclusions of the study. The author reaffirms the relevance of the STF decision in the ADPF 54 case as a milestone in the defense of women's reproductive rights, highlighting that this decision set important precedents for the advancement of female autonomy in relation to control over their own bodies. The conclusion also proposes reflections on the need for legislative reform in Brazil, suggesting that the criminalization of abortion should be reviewed in light of constitutional principles and the international commitments assumed by the country. The research contributes to the interdisciplinary debate on abortion, highlighting the need for an approach that integrates legal, social and public health aspects. Finally, the dissertation highlights the importance of continuing to foster discussions on the decriminalization of abortion, based on fundamental rights, human dignity and the promotion of inclusive and effective public policies to protect women's health.