Sunday, June 16, 2013

Unborn Statute

UPDATE: This is the original text of the Statute proposal, but it's not the text that was approved. I just discovered this. I've read the approved text and will translate it later today. It's less severe, but it still has language that bans all abortions, without the exceptions stipulated in the 1940 Penal Code.

This is the translation of the bill that's in the process of approval in the Brazilian Congress that creates the "Statute of the Unborn". Abortion is already illegal in Brazil, but this bill eliminates the exceptions in case of rape and health risks, gives full personhood to fetuses and embrios and establishes jail time for anyone who even speaks badly of fetuses.
There's a petition here intended to put pressure against the bill on House representatives.
 I'm sorry this post is so long, but it's the full text of the bill. Here's the original on the House site.

                                    National Congress decreets:

Of the preliminary dispositions
Art. 1 This Law disposes about the integral protection of the unborn.
Art. 2 Unborn is the human being conceived but not yet born.
- The concept of  unborn includes the human beings conceived “in vitro”, the ones produced through cloning or other scientific and ethically accepted means.
Art. 3 The unborn acquires juridical personhood by being born with life, but his human nature is recognized since conception, confering him juridical protection through this statute and the civil and penal law.
- The unborn owns the expectation of  the right to life, to physical integrity, honor, image, and all other rights of personhood.
Art. 4 It’s the duty of family, society and State to secure to the unborn, with absolute priority, the expectation to the right to life, health, food, dignity, respect, liberty and family acquaintanceship, besides making him safe from all forms of neglect, discrimination, exploitation, violence, cruelt and oppression.
Art. 5 No unborn will be object of any form of neglect, discrimination, exploitation, violence, cruelty and oppression, being punish, by law, any attempt, by action or omission, on the expectation of its rights.
Art. 6 In the interpretation of this law, it will be considered the social ends to which it’s directed, the exigences of the common good, the rights and duties individual and collective, and the peculiar condition of the unborn as future person in development.

Of the fundamental rights
Art. 7 The unborn must be object of social public policy that allows its healthy and hamonious development and its birth, in conditions worthy of existence.
Art. 8 To the unborn it’s assured, through the Unified Health System - SUS, being served in condition of equality with the child.
Art. 9 It’s vetoed to the State and particulars to discriminate against the unborn, depriving him of the expectation of any right, for reason of sex, age, ethnicity, origin, physical or mental disability, or probability of survival.
Art. 10 The unborn with a disability will Access to every existing therapeutical and prophylatic methods to prevent, repair or minimize his disabilities, with or without expectation of extra-uterine life.
Art. 11 The pre-natal diagnose will respect the development and the integrity of the unborn, and it will aim for his safeguard or his individual cure.
            § 1 The pre-natal  diagnose will be preceded  of the parents’ consent, so that they will be satisfactorily informed.
§ 2 It is vetoed the use of pre-natal diagnose methods that put the mother or the unborn in disproportional or unnecessary risks.
Art. 12 It is vetoed to the  State and particulars to cause any damage to the unborn by criminal act commited by any of its parents.
Art. 13 The unborn conceived in an act of sexual violence will not suffer any discrimination or restriction of rights, assuring him, still, the following:
I – prioritary right to pre-natal assistance, with psychological assistance to the pregnant woman;
II – right to child support equal to 1 (one) minimum wage, until it’s 18 years old;
III – prioritary right to adoption, in case the mother doesn’t want to accept the child after birth.
- If the father is identified, it will be him the one responsible for the child support referred in the subsection I of this article; if not identified, or insolvent, the duty will fall on the State.
Art. 14 The donation made to the unborn will be valid, being accepted by its legal representative.
Art. 15 Always when, in the exercise of familial power, the interest of the parents conflicts with the interest of the unborn, the Public Ministery will require to the judge that he gives him special curator.
Art. 16 It will be given curator to the unborn, if the father dies while the woman is pregnant, and not having familial power.
- If the woman is declared incompetent, her curator will be the unborn’s.
Art. 17 The unborn has legitimacy to inherit.
Art. 18 The woman who, to ensure the rights of the unborn child, wants to proof her state of pregnancy, will require to the judge that, after hearing the Public Ministery, order her examined by a doctor of his nomination.
§ 1 The requirement will be instructed with the death certificate of the person of whom the unborn is the heir.
§ 2 The examination will be dispensed if the heirs of the deceased accept the applicant’s declaration.
§ 3 In no case the lack of examination will damage the rights of the unborn.
Art. 19 Once presented the report that recognizes the pregnancy, the judge will, by sentence, declare the applicant invested in the rights that help the unborn.
- If the applicant doesn’t own familial power, the judge will nominate curators to the unborn.
Art. 20 The unborn will be represented judicially, active and passivelly, by whoever owns familial power, or by special curator.
Art. 21 The material or moral damages suffered by the unborn give rise to civil reparation.

Of the species of crimes
Art. 22 The crimes foreseen in this law are of unconditional public action.
Art. 23 To cause (by conscious action without intent) the death of unborn:
Penalty – detention from 1 (one) to 3 (three) years.
§ 1 The penalty is increased by one third if the crime results from non-observance of technical rule of profession, art or craft, or if the agent doesn’t give immediate help to the victim, doesn’t attempt to diminish the consequences of his act, or runs away to avoid arrest.
§ 2 The judge might not apply the penalty, if the consequences of infraction affect the agent in such severe ways that penal sanction  becomes unnecessary.
Art. 24 To advertise procedure, substance or object intended to cause abortion:
Penalty – detention from 1 (one) to 2 (two) years and fine.
- The penalty is increased by one third if the procedure, substance or object are presented as if they were purely contraceptive.
Art. 25 To freeze, manipulate or use unborn as experiment material:
Penalty – detention from 1 (one) to 3 (three) years and fine.  
Art. 26 To refer to unborn with words or expressions manifestly derogatory:
Penalty – detention from 1 (one) to 6 (six) months and fine.
 Art. 27 To exhibit or distribute, by any communication means, information or images derogatory or injurious to the person of the unborn:
Penalty – detention from 6 (six) months to 1 (one) year and fine.
Art. 28 To make publicly apology of abortion or who practiced it, or publicly incitate its practice:
Penalty – detention from 6 (six) months to 1 (one) year and fine.
Art. 29 To induce pregnant woman to practice abortion or offer her the opportunity to practice it:
Penalty – detention from 1 (one) to 2 (two) years and fine.

Final dispositions
Art. 30 The arts. 124, 125 e 126 of Penal Code (Law-decree number 2.848, December 7th of 1940) are ammended to the following wording:
“Art. 124..................................................................................
Penalty – reclusion from 1 (one) to 3 (three) years (NR).
“Art. 125.................................................................................
Penalty – reclusion from 6 (six) to 15 (fifteen) anos (NR).
“Art. 126..................................................................................
Penalty – reclusion from 4 (four) to 10 (ten) years (NR)”.
Art. 31 The art. 1 of Law 8.072, from July 25th of 1990 (Law of Heinous Crimes), is ammended to add the following subsection VIII:
“Art. 1 ....................................................................................
VIII – abortion (arts. 124 to 127) (NR)”.
Art. 32 This law will become valid after a hundred and twenty days of its official publication.

In March 25th of 2004, the Senate of the United States of America approved a bill that grants to the unborn child the status of person, in the case of a crime. In April 1st, president George W. Bush sanctioned the law, called “Unborn Victims of Violence Act”. From now on, by North-american law, if someone causes the death or lesion to a child in his mother’s womb, he’ll answer criminally for the death or lesion to the baby, besides death or lesion to the pregnant woman.
In Italy, in march 2004, a law became valid that gives to human embrios the same rights of a citizen.
It wouldn’t be a bad idea if Brazil, following these good examples, promulgate a law that disposed exclusively of the integral protection to the unborn, as determined by the Pact of São José of Costa Rica, signed by our country. Here is a proposal of the “Statute of the Unborn”, that we offer to our Parliamentary Colleagues. If approved and sanctioned, it might become a historical mark in our legislation.
The present bill, called “Statute of the Unborn”, lists all the rights inherent to him, in the quality of child to be born. In truth, the project refers to the expectation of rights that, as it’s known, enjoy juridical protection, might be ensured by all morally and legally accepted means. Several of these rights, already foreseen in sparse laws, were compiled in this present Statute. For example, the right of the unborn to receive donation (art. 542 Civil Code), of receiving a special curator when his interests conflict with the interests of his Parents (art. 1.692 Civil Code), of being adopted (art. 1.621, Civil Code),of inheriting (art. 1.798 and 1.799, Civil Code), of being born (Statute of the Child and Adolescent, art. 7), of receiving from the judge a sentence declaring his rights after proved pregnancy of his mother (arts. 877 and 878, Civil Process Code).
The present Statute intends to make integral the protection to the unborn, above all in what refers to the rights of personhood. It’s highlighted the right to life, to health, to honor, physical integrity, food, familial acquaintanceship, and it’s forbidden any form of discrimination that might deprive him of any right, for reason of sex, age, ethnicity, appearance, origin, physical or mental disability, expectation of survival or crimes commited by his parents.
The proliferation of abuse of unborn human being, including the manipulation, freezing, discarding and commerce of human embrios, the sentencing babies to death for physical disabilities or because of crimes commited by his parents, the plans to clone and kill babies with the only objective of transplanting his cells to sick adults, all of this requires that, as other countries like Italy, a law be promulgated that says “enough” to such atrocities.
Other inovation of the present Statute is the penal part. It’s created the culpable modality of abortion (until now it’s only punishable if intentional), the crime (that today it’s only contravention) of advertising procedure, substance or object intended to cause abortion, several other crimes against the person of the unborn are listed and, finally, abortion is framed among the heinous crimes.
We make a point of transcribing a quote of a recent article published in the juridical magazine Consulex, authored by the illustrous prosecuter of the Jury Court of Federal District, Dr. Maria José Miranda Pereira:
As Justice Prosecutor of the Jury Court, in the constitutional mission of defending human life, and also as woman and mother, I repudiate abortion as a nefarious crime. By incoherence of our juridical planning, abortion isn’t included in the heinous crimes (Law 8.072/90), when it should be the first of them. Though abortion is the most coward of all murders, it’s punished so lightly that it ends up framed among the crimes of minor offensive potential (Law of Special Courts 9.099/95). I note, with sadness, the devaluation of the unborn’s life.
The methods used commonly in an abortion can’t be commented during a meal. The baby is dismembered (abortion by curettage), aspired in pieces (abortion by suction), poisoned by a solution that corrodes its skin (abortion by saline poisoning) ou simply removed alive and left to die (abortion by c-section). Many take too long to die, being necessary direct action to kill them, if they don’t want to throw them in the dump still alive. If such procedures were used to kill a child already born, with no doubt the crime would be qualified homicide. By an inexplicable prejudice of place, if such atrocities are commited inside the womb (and not outside it), the crime is of second or third degree, a “crime of bagatelle.”
The noble representative Givaldo Carimbão had the idea of including abortion among the heinous crimes. This suggestion is accepted in the present Statute. It’s true that the penalties will still be small for such barbarian crime, but there will be a significative advance in our penal legislation. The best of all is that, recognizing abortion as a heinous crime, it won’t be possible anymore to suspend the process, as it’s usually done nowadays, submitting the criminal to symbolic restrictions like: prohibition of attending certain places, prohibition of leaving the region of residence without judicial authorization, attendance personal and compulsory to court, monthly, to inform and justify activities, etc. (cf Law 9.099/95, art. 89).
As it’s an inovating project, that treats systematically of a subject never treated in other laws, I ask a special attention from the noble peers. It would be tremendous injustice if this proposal were treated in conjunction with so many others, that treat only of small portions of the theme that here is proposed.  
We hope that this House of Laws will strive to approve as soon as possible this Statute, for the joy of the children to be born and for the pride of this nation, as well as the joy of the ex-representative Osmânio Pereira who asked us to again put this new legislation to proceed.

Sessions Room, in ___ of _____________ of 2007.

Representative Luiz Bassuma (PT/BA)                                                  
Representative Miguel Martini (PHS/MG)