O estatuto ontológico do embrião humano: o nascituro enquanto Sujeito de direitos e titular de personalidade jurídica

Abstract

The human being in formation has been analyzed repeatedly in the legal world in order to verify the incidence of rights over him. There is no consensus, because several elements are considered as a result of the multidisciplinary nature of the theme and result in concurrent or complementary and, sometimes, antagonistic doctrinal currents. In this attempt the exploratory research with qualitative analysis of the data will be developed with the description of the categories of analysis Personality and Capacity, with the objective of investigating the ontological status of the unborn child in the Brazilian legislation and its legal effects. In addition, the construction of the work seeks to highlight theories of legal personality, each of which is defended by authors such as Cristiano Chaves de Farias, Silmara Juny Chinellato, among others who argue in favor of the Conceptionist Theory; Those who find themselves in the "middle ground", that is, that defend the Conditionalist Theory, are authors like Clóvis Bevilácqua; Finally, authors like Washington de Barros Monteiro, strongly defend the Natalist Theory. Thus, it is observed that the arguments are based on a solid and deep foundation, which are divided into three theories, trying to explain how the condition of the legal personality of the unborn will be defined. Through the Research carried out in the areas of Civil Law, Bioethics and Fundamental Rights, it is possible to constitute different points of view regarding the unborn child. In addition, the provocations found in the Natalist Theory and the Conditionalist demonstrated a form of incentive to seek in the Conceptionist answers to counter the points related to the personality of the human being conceived in divergence. Also, to see the unborn as a protected being and protected by the legal system would be a way to extend the concept of personality to the same, because, even if a right is conditioned, this mitigating can not be considered as limiting the personality of the unborn. It is important to emphasize that from this relation, it is possible to reach an understanding, not only juridical, but also humanistic, ethical and philosophical, since the unborn child is a very personal entity without any constraints.