POST-MORTEM ASSISTED HUMAN REPRODUCTION AND BRAZILIAN COURTS:

ANALYSIS OF SPECIAL APPEAL 1.918.421/SP

Abstract

Assisted human reproduction (AHR) techniques are
being increasingly used, however, over time, conflicts arise and
demands are proposed before the Judiciary, which must provide
a response. In view of this, the present work aims to analyze the
judgments of the Brazilian courts on the subject of post mortem
RHA, mainly the Special Appeal n. 1.918.421/SP of the Superior
Court of Justice (STJ), with the purpose of tracing what has been
the jurisprudential understanding on the subject and how the
legal system has been used. The work uses the deductive method,
performing the analysis of the main cases on the subject. Thus,
it is concluded that the Brazilian legal system has not adequately
regulated procedures involving RHA, in view of this, courts
have often used technical regulations from other bodies to base
their decision. With regard to post mortem RHA, the courts have
always observed the existence or not of the deceased’s will,
in order to then authorize the procedure. With this research, it
is clear that the decision of the STJ is in accordance with the
decisions of other courts, however, it should be noted that the
expression of will does not necessarily need to be written,
and can be proved by other means. Finally, it is clear that it is
essential that the Terms of Free and Informed Consent properly
contemplate the destination of the embryos/genetic material in
different situations, since they can be used as a means of proof
of the manifestation of will.