April 17, 2012 ( – Despite constitutional guarantees for the right to life and a national criminal code that prohibits abortions, Brazil’s Supreme Federal Tribunal has ruled that abortions of anencephalic babies cannot be penalized, with many of the court’s ministers claiming that such children are not truly alive.

Anencephaly is a condition in which part or all of the upper brain does not develop during gestation, and the top of the skull is incomplete. Although most anencephalic babies die before or very shortly after birth, some have lived for years with the condition, and parents report that they show signs of awareness.

However, eight of the Tribunal’s eleven ministers rejected such arguments, and ruled that the government cannot penalize women who abort their anencephalic children. Two of the ministers voted against the ruling, and one recused himself on the grounds that he had litigated such cases as a prosecutor before his appointment.


The case’s relater, who is charged with reviewing the facts and presenting a detailed opinion before voting occurs, claimed that anencephalic babies are “biologically alive” but “juridically dead.”

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“Abortion is a crime against life.  A potential life is protected,” he wrote. “In the case of the anencephalic, a potential life does not exist. The anencephalic fetus is biologically alive, because it consists of living cells, and juridically dead. It does not enjoy government protection.”

Minister Rosa Weber, who voted in favor of depenalization, claimed that “anencephaly does not apply to the concept of abortion.”

“The crime of abortion means the interruption of life, and for all the debate that occurred in this case, anencephaly is not compatible with those characteristics that constitute the idea of life under the law,” she added.

Other ministers who voted in favor of the law expressed similar sentiments, claiming that anencephalic babies are lacking in awareness. One claimed that prohibiting their killing in the womb is a form of “torture.”

However, Minister Cezar Peluzo disagreed, noting that “the anencephalic fetus is alive and, however brief, his life is constitutionally protected.”

Minister Ricardo Lewandowski, also voting against the decision, expressed his fear that it would “open the doors to the interruption of gestation of numerous embryos that suffer or would come to suffer other genetic or acquired illnesses that might bring about the ending of their lives within or outside of the womb.”

The decision, which was in process for over three years, seems to contradict the Constitution of Brazil, which states in article 5 that “all are equal under the law, without distinction of any kind, being guaranteed to Brazilians and foreigners residing in the country the inviolability of the right to life…”

Piero Tozzi, a senior attorney with the U.S.-based Alliance Defense Fund who specializes in the right to life in international law, expressed his disappointment with the ruling.

“Every innocent life deserves to be protected. Instead, Brazil’s high court has approved of slaughtering the country’s most vulnerable people, the severely disabled,” said Tozzi in a press communiqué.

“Eugenic abortion further erodes respect not only for human dignity in general, but the dignity of the disabled in particular. Protecting the innocent is a chief duty of the legislature, and the court was wrong to overstep its authority and tear down the protections long ago established by Brazil’s lawmakers–protections that are consistent with the pro-life views of most Brazilians.”


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