Bioética e direitos de personalidade do nascituro

Abstract

Unborn child is the person to being born, already conceived in the maternal womb. In Brazil there are three basic theories concerning its legal nature: the Natalist Theory, that affirms that the civil personality starts up with the birth with life, as the article 4th of the Civil Code, but it does not explain the expecting rights and it is based on the Roman Law, that did not consider the unborn child as a person; the Theory of the conditional personality that recognizes personality since conception, but it is conditioned with the birth with life, leaving to the edge the Rights of Personality, such as the right to life, that does not depend on the birth with life and the Concepcionist Theory that supports that personality starts with conception. The personality may not be confused with the capacity and that one is not conditional, only certain patrimonial rights depends on the birth with life. The Rights of Personality are legal faculties whose objects are the diverse aspects of citizen’s proper person, as well its prolongations and projections. The Civil Code did not tutor such denominations, but it recognizes them in some devices. R. Limongi França classifies in a tripartite form the Rights of Personality: Right to Physical Integrity, Right to Moral Integrity and Right to Intellectual Integrity. We classify in four categories, placing the Right to Life as independent, not integrant category of the Right to Physical Integrity. The Right to life is primordial and it is conditional since without it the other rights do not exist. The unborn child's right to Physical Integrity must not be confused with the mother's and the diverse intrauterine medical techniques demonstrate this concern with the unborn child in any phase of development, for example, the indemnity of prenatal damages foreseen in foreign law. The Right to image concerns to physical reproduction, by any way of captation, including the extremeone. The Right to honor exists since conception. Thus, it is emphasized that the Rights of Personality are initiated since conception and exceed death. The Right of Personality of Pre-Implantatory Embryo for constituting species of the right to identity and opposes it the demanded anonymity of gametas owners, being that the destruction of identity of genetic parents implies in civil liability, for pain and suffering, and to breaking of the right of personality.