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THE SCIENTIFIC USE OF EMBRYONIC STEM CELLS AND THE CRIMINAL PROTECTION OF LIFE

Grant number: 10/10968-4
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): October 01, 2010
Effective date (End): September 30, 2011
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal researcher:Paulo César Corrêa Borges
Grantee:João Vitor Mello de Oliveira Guimarães
Home Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

The present study aims to analyze the use of embryonic stem cells for research is whether or not to attack the life as a fundamental right, guaranteed by art. 5 of the Brazilian Federal Constitution, and if the finding is "Yes", if the Brazilian Penal Code currently owns the definition of that undermining to protect this fundamental right in this way, given that both in art. 5, XXXIX of Brazilian Constitution as in art. 1 the Brazilian Penal Code is adopted the principle of legality. A lot has been discussed regarding the use of stem cells in scientific research, their ethical consequences and its relationship with the right to life, cast in the Brazilian legal system as a fundamental right. The central theme of the discussion is based on the answer of which is the exact moment of the beginning of life, and therefore from when this is guaranteed in the Constitution and under the responsibility of the criminal law. Has mainly four theories about the moment of the beginning of life, some argue, mainly, the religious aspect, that life begins at the time of fertilization of the egg by the sperm, there are those who say that life begins at the time the fertilized ovum adheres to the wall of the uterus, also there are those who argue that life begins with the formation of the neurological-positioning system that is based on the theory that as the death is the cessation of brain activity, so there is no right to life that is necessary to ensure that the embryos are not used in experiments in this phase of training-and, finally, those who argue that the beginning of life has its principle with birth with life of the embryo. However it is to remember that the Brazilian Civil Code in its art. 2 provides: "the rights of the unborn child are protect from the moment of the conception". Similar Concept is given in the Pact of San José da Costa Rica (International Human Rights treaty in which Brazil is a signatory), to determine in its article 4: "every person has the right to respect his life. This right is protected by law and, in General, from the moment of conception". Doing an ethical analysis, one has to distinguish the difference between the use of this deception to trace behaviors for which scientific development should walk and "the necessity of actions of the right, in its various branches, to ensure the adequacy of conduct for scientists and these guidelines accepted by the whole community". Taking into account the legal assets here-such as human life and dignity-concluded that the practice of criminal law is needed, however not in its repressive way, but in a preventive nature. In line with the line of thought [5], the legislator already classified ducts-including arising from medical-ducts that injure the life and dignity, such as abortion in articles 124 to 127 of the Brazilian Criminal Code, the infanticide laid down in article 123 of the C.P. and euthanasia - that even not explicitly typed is punished in privileged form of murder. However still there is a definition for cases in which, somehow, the use of embryo hurts criminal legal values which are commonly protected by criminal law, and this line gives the analysis of the need for typology of murder against embryo.

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