A personalidade jurídica do nascituro e o status jurídico do feto anencéfalo no Brasil

Abstract

The moment at which a legal entity begins in Brazilian legislation is not unanimously agreed upon in the legal literature. In that regard, this article seeks to analyze the main theories concerning this polemical and heated discussion. In short, the natalist theory defends the obtaining of personality only after birth, possessing the unborn child, then, mere expectation of rights; the theory of conditional personality emphasizes that the one who is not yet born retains its rights in suspensive condition contingent on live birth; for its part, the conceptionist theory, is the only one that provides fundamental rights to the unborn child, recognizing conception as the starting point of life, with personality being attributed at that exact moment. The arguments find fertile territory for debate in the lack of clarity of article 2 of the civil code of 2002, which safeguards right for the unborn child, but leaves its interpretation to the legislator who must use a systematic view of the legal order in order to obtain fair results. As an example, it was necessary to analyze the legal status of the anencephalic fetus through the controversial claim of non-compliance with fundamental precept n°54