The Constitutional Debate on Stem Cell Research, Human Rights and Dignity: The Law and a Recent Court Ruling in Brazil

Chapter 9
The Constitutional Debate on Stem Cell Research, Human Rights and Dignity: The Law and a Recent Court Ruling in Brazil

Luiz Edson Fachin


Human life and science are not merely words with a meaning for academic debate in countries like Brazil. Strictly speaking, they deal with one of the most complex issues of our times, giving grounds to passionate discussions on scientific development and freedom of research, as well as on the concrete conditions of society itself.

What has happened in Brazil, except for historical and cultural differences, does not seem to be an exception. On the one hand, we see the rise of such arguments as the defence of the secular State, the autonomy of science as the basis for bioethics, and reproduction rights. On the other hand, we face a myriad of arguments about, inter alia, the existence of human life prior to birth, the therapeutic use of embryonic stem cells, and the existence of human life in the embryo.

This chapter will present the laws on embryonic stem cells, the arguments favouring and opposing the constitutional nature of the legal rule authorizing such scientific research, and the decision reached by the Brazilian Constitutional Court, which opened the doors to this new scientific horizon by a majority decision (decided by six to five opinions).

As the explanations unfold, it will be noted that the same principle – the dignity of the human person – is present in such debate, either to deny the legal possibility and the ethics of research on embryonic stem cells, and to contend that it is from scientific freedom that therapies to fight the various pathologies that afflict the very dignity of life itself may originate.

Firstly, I analyze the allegations that ascertain the human dignity as part of the fundamentals of the Republic, as expressly set forth in the Brazilian Constitution (article 1 [item III]), and even as a fundamental human right (expressly mentioned in the introduction to article 5 of the Constitution) based on the inviolable right to life.

Secondly, I examine the social and technical function of research, aiming to comply with the needs of government policies that implement the right to health, to physical integrity, and to the very dimension of living with dignity, as well as the freedom of scientific research, under provisions set forth in article 5, item IX, letter ‘d’ in the Brazilian Constitution. This is the course of our explanatory notes.

The aim of this chapter is to inform and examine a synthesis of the course these issues have recently taken in Brazil, both in the enactment of legal provisions and in the definition given by the Judiciary through the Supreme Federal Court in a recent ruling about the conformity of the law to the Constitution.

A key purpose is to show how any Court is not able to say what is right or what is wrong without looking at both the historical and cultural contexts of the individuals that develop their own personalities by relationships, composing a plural society, where the concept of human rights doesn’t have just one meaning and where new technologies demand adequate answers.

Legal Grounds for Using Embryonic Stem Cells

Let us first examine the legal grounds which gave rise for controversy regarding research on embryonic stem cells in Brazil.

On 24 March 2005, president Luiz Inácio Lula da Silva enacted the Law No. 11105, which regulated the Federal Constitution, especially concerning ‘safety norms and control mechanisms for the construction, cultivation, production, handling, transport, transfer, importation, exportation, storage, research, trading, consumption, release in the environment and discharge of genetically modified organisms and their by-products’. The law came to be known as the Biosafety Law.1

Prior to this 2005 law, there was a rule in Brazil banning genetic engineering of human stem cells, and the production, storage or handling of human embryos to be used as available biological material were also forbidden. Actually, both the genetic engineering of human germinal cells and in vitro interventions in human genetic material were treated as felony, subject to sentences of six to 20 years in prison.2

The wording of article 5 of the new law enacted in 2005 authorizes the research on embryonic stem cells, although the actual purpose of the original submitted bill was to regulate activities dealing with genetically modified organisms. Nevertheless, the theme of production, storage or handling of human embryos was added to the main bill, even though this matter, strictly speaking, bears little or no connection to the issue of GMOs (genetically modified organisms).

After a lot of discussions, public hearings and controversies, the Legislative Power approved the bill on 4 March 2005, with 60 votes against and 352 in favour of the measure. The new law authorized the research and defined embryonic stem cells as ‘embryonic cells that are able to turn into any body tissue cell’.3

Within the universal scope encompassed by the new law (including, but not limited to, biotechnology, genetically modified organisms, biosafety and the precautionary principle), article 5 provided solely for the following permission:

It is permitted, for research and therapeutic purposes, to use human embryonic stem cells produced by in vitro fertilization and not employed in the procedure, subject to the following conditions: first – that the embryos are unviable; or, second – that the embryos have been frozen for no less than three years prior to the date of publication of this Law (i.e. 28 March 2005), or, if already frozen at the date of publication of this Law, after a three-year lapse of the freezing date.

The consent of parents and the approval by research ethics committees were conditions previously established by law for the development of projects by research institutions and health service providers. From that date on, Brazil had a legal rule which encouraged scientific research on embryonic stem cells.

The Law is Challenged by an Allegation of Unconstitutionality

Less than two months after the law had come into force, the Federal Attorney-General of Brazil challenged the wording of article 5 in the new law as unconstitutional before the Supreme Federal Court, by means of a Direct Action of Unconstitutionality (under docket number 3510).4

The technical grounds for objecting to the research were, in brief, the following:

a. human life develops with, and as of, fertilization;

b. the embryo is destroyed by the use of embryonic stem cells;

c. current experiments show that adult stem cells may be used in an effective and safe manner;

d. there are no records of results from embryonic stem cells.

The petition for banning research on embryonic stem cells was based on the constitutional principle of the inviolable right to life, and on the protection granted by the Brazilian Civil Code to the rights of the unborn child from conception. During the legal debate there was also a mention of article 4 of the American Convention on Human Rights – ‘Pact of San Jose, Costa Rica’, of which Brazil is a signatory and which protects the right to life from the moment of conception,5 including the allegation that such protection already existed in the Roman Law, since the rights of the foetus were guaranteed, as seen in the Digesto of the Justinian Code,6 from the moment of conception.

The action was filed and assigned for proceedings by the Supreme Federal Court on 31 May 2005. After several court procedures, a public hearing was scheduled within the Constitutional Court two years later, to hear persons endowed with known expertise and authority in the field, as well as entities of the civil society. Such a hearing was set forth by the Brazilian Constitution for the Parliament, and was adopted by analogy by the Supreme Court.

Various entities and bodies of the Brazilian society participated in the debate and in the court procedures, such as the Brazilian Confederation of (Catholic) Bishops, the Institute of Bioethics, Human Rights and Gender, Brazil’s Pro-Life Movement, besides obviously the Solicitor General of Brazil, defending the confirmation of the law enacted by the President of the Republic.7

The court session started on 5 March 2008 and ended on 29 May 2008, dismissing the direct action of unconstitutionality by a majority of voices. The opinions against the permission for researches were those of the Chief Justice (installed in office during the judgment) and of four other justices.8 The Reporting Justice and five other justices stated opinion in favour of the permission.9 The result was achieved by simple majority, i.e., with six justices in favour and five justices against.10

Human Dignity as a Legal Value Amid the Debate

The dignity of the human person pervaded all moments of the debate and this theme is undoubtedly the cornerstone of the whole legal system. As an example, when stating opinion in favour of declaring the law unconstitutional as worded, justice Gilmar Mendes (installed as Chief Justice to replace justice Ellen Gracie) based his opinion, from the beginning, on the ethical, legal and moral issues of life and human dignity. To that extent, he further argued about the issues of abortion and euthanasia, stressing the role of the Constitutional Courts as ‘houses of the people’.

He stated, in brief, that ‘there is a vital element worthy of legal protection’ even during the pre-birth stage, and that the Brazilian law was deficient ‘in the regulation of researches and, therefore, not compatible with the principle of proportionality in terms of prohibition of an insufficient protection’. Consequently, following such lines, the effective protection of Human Rights, of Fundamental Rights, and also of the so-called Personality Rights would demand an integral and unified protection of such rights, with a focus on the human person dignity as the central point of the axiological radiation of human values.

In view of the contemporary concept of human dignity and the relationship between the Constitution and Civil Law, it could be affirmed that the Personality Rights are actually Fundamental Rights.

Regarding this theme, both sides, attacking or defending the law that authorizes the research, i.e., either seeking to declare it as unconstitutional or to uphold it as constitutional, ended up resorting to the same principle.

On the one hand, the parties defending the idea of declaring the law unconstitutional and opposing the researches tried to contend at the Supreme Court, albeit in vain, that from a legal point of view the right to life, as declared by article 5 of the Brazilian Constitution, is inviolable from the conception, and that this would further be warranted by article 4 of the new Brazilian Civil Code in force as of 2003, which protects the rights of the unborn child from the conception.

They further alleged that, from a scientific point of view, there would be a possibility of rejection, giving rise to embryonic tumours, of loss of control of embryonic cells, and that the treatment of genetic diseases could be made with adult stem cells. It was further argued that to open this door to researches would mean to transform human beings in experimental guinea pigs. They also stated that the law at least lacked a provision for the creation of a properly regulated Central Ethics Committee.

On the other hand, the parties defending the constitutional nature of the law contended that a distinction should be made between an embryo and an unborn child: whereas the Civil Code rule protects a potential being in development inside the maternal womb (i.e., the unborn child), the embryo is neither a person nor an unborn child, since it is not yet implanted in the mother’s uterus and its birth is uncertain.

It was further contended that the law did not authorize the researches unless the embryos represented surplus embryos from in vitro fertilization procedures, non-viable or frozen for over three years. In addition, the law prohibited human cloning, both therapeutic and reproductive, further banning any embryo trading. As an example, we present the opinion given by Justice Cármen Lúcia Antunes Rocha.

Under the argument of the secular State based on the Brazilian Constitution, Justice Rocha affirmed that ‘the respect for the principle of dignity of the human person is ascertained by the constitutional ethics now in force’. She argued that it was a matter of living with dignity and that ‘there is no violation of the right to life when researches are permitted’. In her words, ‘In order to germinate, the grain has to die’. Between ‘human matter waste’ and the use for research, the Supreme Court justice chose not to discharge the material, since the lack of research means the certitude of no results in science.

In view of the debate on such principle, and bearing in mind that the related circumstances must not be different – considering other countries with similar legal traditions and an analogous context as regards historical, cultural and economic features – we shall now describe the legal value of said principle within the framework of the Brazilian legal system. Personality and Fundamental Rights Not all of the fundamental rights are surely personality rights. Personality rights, according to Rabindranath Capelo de Souza, derive from the compound of psychosomatic and environmental facets that compose the human personality.11 The right to due process of law, for instance, is a fundamental right, but not a personality right.

It is possible to state, along those lines, that the legal construction of Personality Rights is a subset of the wider universe of Fundamental Rights and, as such, applicable both to relationship involving the State and to those between individuals.12

Furthermore, in the likelihood of direct and immediate enforcement of fundamental rights in the relationship between private individuals,13 there is no question whatsoever of the absolute restriction that results from the split between Public Law and Private Law. In other words, not only Personality Rights but also all the other Fundamental Rights are applicable to the relationship between private individuals.

It could not be otherwise. To impose an absolute restriction on the application of the principle of human dignity – endowed with constitutional status – according to Personality Right restrictions defined by ordinary laws would imply contempt for the Constitution itself and an intolerable violation of the very dignity of human persons.

It must then be reaffirmed that, regardless of the existence or lack of provision for Personality Rights other than in the Constitution itself, the dignity of the human person in the relationship between private individuals is protected by direct or indirect enforcement of the Fundamental Rights and that this is a larger universe encompassing even the Personality Rights themselves.14

Fundamental Rights and Justice

The focus on the perception of fundamental human rights must be made through the lens of human dignity, as a necessary goal within the core of the substantively fundamental rights.15

Along this line of thinking, for professor Cármen Lúcia Antunes Rocha,16 Justice of the Supreme Federal Court of Brazil, who stated opinion in favour of the research in the judgment on the allegation of unconstitutionality, ‘dignity is a basic assumption for the idea of human justice, and the entitlement to dignity should require no further effort to deserve it, as it is inherent to life and, as such, a right that precedes the State’. The dignity of the person is thus assured as a constitutional ‘super-principle’.

It is imperative that the State be committed to the dignity of the human person. The theme concerns the guarantees of the Democratic State under the Rule of Law and the dignity of the human person, concretely conceived,17 as stated by article 1 of the 1988 Federal Constitution.

It should be noted that the technical and scientific development has not been able, in countries like Brazil, to promote the inclusion of everyone in the modern society. On the contrary, a kind of social Darwinism is eliminating approximately 70 per cent of the population in Brazil from such a goal.18 They are excluded from both consumption and basic access to the Social State range of benefits. The technological wave has been much more associated with the logic of the market and the globalization processes than with the promotion of human dignity. The conversion of living beings into genetic resources generates such perplexity.

How Have we Reached this Point?

The topics presented here bear some connection to the new economics of the information age. If culture and nature are commodities in the new digital world, filled with databases, a dignified life must not simply exclude research and scientific progress.

Human dignity is imperative from an ethical and existential point of view and it is also, unequivocally, a constitutional principle and rule19 perceived by the Brazilian legal system as the fundamentals of the Republic, pervading the whole rationality of the national legal system by its normative enforcement.

It regards, the acknowledgement by Law of a dimension inherent to every human person and this acknowledgement precedes – as a logical and ethical principle – the legal system itself. In fact, the juridical system as desired in a theoretical plan by the abstract human creation contains in itself some ‘metajuridical’ elements that are conditions of possibility for Law itself.

Nonetheless, the principle of human person dignity must address the protection of the concrete person, without reducing it to a ‘virtual subject’20 considered in an abstract manner, reputed as a mere element of the juridical relationship or center of assessment.21

Under such a concept, dignity is taken as an attribute referring to the human being when concretely considered. Another extremely relevant element is also inferred when reviewing the principle at issue: the dignity of the person is an imperative that derives from an ethics of alterity.

This is, perhaps, how we got this far: we have forgotten that the dignity of the person may be conceived under the double dimension of principle and value.22 Its axiological dimension allows us to state that there is a prima facie prevalence of the dignity value that determines the accomplishment of rules, even though a formal a priori prevalence of the principle is not stated.

Paulo da Mota Pinto, a highly distinguished professor from Coimbra and a former member of the Constitutional Court of Portugal, notes the supremacy of human dignity as a value when ascertaining that:

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