The term unborn child (nascituro) refers to a being already conceived but who has not yet been born alive. In the Brazilian legal system, it is primarily situated within the scope of Civil Law, specifically the Law of Persons, although it projects transversal effects into Constitutional, Succession, Penal, and Social Security Law, aiming to safeguard rights and expectations of rights from the moment of conception.
1. Definition, Concept, and Legal Nature
The unborn child is a human being already conceived in the mother's womb, whose biological existence is undisputed, but who has not yet achieved birth alive. Legally, the definition of the unborn child involves an analysis of its legal nature, a topic that divides classical and contemporary doctrine into three main currents:
- Natalist Theory: Maintains that formal legal personality only begins with birth alive. For this school of thought, the unborn child possesses a mere expectation of right, subject to a suspensive condition (birth). It is the traditional view supported by the literal wording of the first part of Article 2 of the Civil Code.
- Conditional Personality Theory: Argues that the unborn child possesses legal personality from conception, but this personality is subject to a suspensive condition (birth alive). If born dead, the effects are retroactive, and it is considered that personality never existed.
- Conceptionist Theory: Asserts that the unborn child is a person and possesses legal personality from conception, especially regarding personality rights (life, physical integrity, image). This theory has gained strength in the jurisprudence of the Superior Court of Justice (STJ), which recognizes subjective rights for the unborn child independent of birth, such as the right to moral damages and child support.
2. Historical Origin and Evolution in Law
The protection of the unborn child dates back to Roman Law, consolidated in the maxim "Nasciturus pro iam nato habetur, quotiens de eius commodis agitur" (The unborn is considered born whenever it is in their interest). Although Roman Law did not grant full personality, it created the figure of the curator ventris to protect the assets that the future infant would inherit.
In Brazil, the 1916 Civil Code adopted a markedly natalist stance. The 2002 Civil Code, although maintaining similar wording in the caput of Article 2, was interpreted in light of the 1988 Federal Constitution, which elevated the dignity of the human person and the right to life to the status of foundations of the Republic, forcing a hermeneutic evolution toward the integral protection of the fetus.
3. Exact Legal Provision
The legal foundation for the institution of the unborn child in Brazil is vast and multidisciplinary:
- Civil Code (Law No. 10.406/2002):
- Art. 2: "The civil personality of a person begins at birth alive; but the law protects the rights of the unborn child from conception."
- Art. 542: Allows donations made to the unborn child, which shall be valid if accepted by their legal representatives.
- Art. 1.779: Deals with the interdiction and curatorship of the unborn child (curator to the womb).
- Art. 1.798: Succession legitimacy for persons already conceived at the time of the opening of succession.
- 1988 Federal Constitution:
- Art. 5, caput: Guarantees the inviolability of the right to life.
- Special Legislation:
- Law No. 11.804/2008 (Pregnancy Support Law): Guarantees the right to alimony payments to cover pregnancy expenses, transferring to the child after birth.
- Penal Code (Arts. 124 to 128): Defines abortion as a crime against life, protecting the existence of the unborn child.
4. Practical Application and Jurisprudential Understanding
Brazilian jurisprudence, led by the Superior Court of Justice (STJ), has consolidated the protection of the unborn child extensively, moving closer to the Conceptionist Theory:
- Moral Damages: The STJ has a firm understanding that the unborn child has the right to compensation for moral damages resulting from the death of their parent due to an illicit act (REsp 1.415.727/SC). The right to compensation arises at the moment of the harmful event, even if the child is still in the womb.
- DPVAT Insurance: Jurisprudence has consolidated that the running over of a pregnant woman resulting in the death of the fetus generates the right to receive DPVAT insurance compensation, recognizing intrauterine life as a protected legal asset (REsp 1.120.676/SC).
- Pregnancy Support (Alimentos Gravídicos): Law 11.804/08 is applied to ensure the health of the pregnant woman and, consequently, the healthy development of the unborn child. After birth alive, these payments are automatically converted into child support for the newborn.
- STF Position: In the judgment of ADI 3510 (Biosafety Law/Stem Cells), the Supreme Federal Court exhaustively debated the beginning of life, concluding that the in vitro (extrauterine) embryo is not equivalent to the unborn child (intrauterine) for the purposes of absolute protection of the right to life. In ADPF 54, the STF decided on the non-criminalization of therapeutic anticipation of birth in cases of anencephaly, understanding that the anencephalic fetus lacks vital viability, thus not conflicting with the right to life itself.
5. Related Principles and Doctrinal Divergences
The study of the unborn child is governed by the following principles:
- Principle of Human Dignity: The supreme foundation that requires the protection of any form of human life.
- Principle of Integral Protection: Derived from the Statute of the Child and Adolescent (ECA), applicable by analogy to the unborn child regarding health and nutrition.
- Principle of Absolute Priority: The duty of the family, society, and the State to ensure the rights of the infant, including in the prenatal phase.
Divergences persist in the field of procedural capacity. While the majority doctrine admits that the unborn child can be a party in lawsuits (represented by the mother or a curator), some classical proceduralists still resist the idea of full procedural personality before birth.
6. Contemporary Relevance and Practical Impacts
The contemporary relevance of this institution is manifested in the advances of bioethics and biolaw. Discussions on assisted reproduction, genetic manipulation, and the legal status of the cryopreserved embryo strain the limits of the concept of the unborn child. In the Brazilian system, the practical impact is the guarantee that the unborn child is not an "object," but a subject of rights in formation, which prevents, for example, the pregnant woman from waiving rights that belong to the offspring, such as child support or inheritance.
The recognition of legal personality from conception (conceptionist approach) alters the logic of civil liability, allowing the unborn child to seek compensation for prenatal medical errors or exposure to teratogenic substances, consolidating a protection system that precedes autonomous physical existence.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Civil Code.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Law No. 11.804, of November 5, 2008. Pregnancy Support (Alimentos Gravídicos).
- STJ. REsp 1.415.727/SC. Rel. Min. Luis Felipe Salomão, Fourth Panel, judged on 09/04/2014.
- STJ. REsp 1.120.676/SC. Rel. Min. Massami Uyeda, Third Panel, judged on 12/07/2010.
- STF. ADI 3510. Rel. Min. Ayres Britto, judged on 05/29/2008.
- STF. ADPF 54. Rel. Min. Marco Aurélio, judged on 04/12/2012.
