Acordão - Autorização Judicial para interrupção de gestação de gêmeos siameses portadores de gemelaridade imperfeita

OITAVA CÂMARA CRIMINAL
HABEAS CORPUS Nº 0023285-95.2015.8.19.0000
IMPETRANTE: DRª L M
PACIENTE 1: J
PACIENTE 2: L
AUT. COATORA: MM JUÍZA DA 4ª VARA CRIMINAL DA COMARCA DA CAPITAL
RELATOR: DES. CLAUDIO TAVARES DE OLIVEIRA JUNIOR

HABEAS CORPUS. GEMELARIDADE IMPERFEITA, ALTAMENTE RARA E GRAVE. IMPETRANTE QUE SE INSURGE CONTRA A SENTENÇA NA QUAL A MM JUÍZA JULGOU EXTINTO, SEM RESOLUÇÃO DE MÉRITO, O PROCESSO EM QUE SE PRETENDIA A OBTENÇÃO DE ALVARÁ JUDICIAL, COM O FIM DE AUTORIZAR A INTERRUPÇÃO DE GRAVIDEZ. ORDEM CONCEDIDA.

leia na íntegra o acórdão

Genetic Testing On Embryos Faces Ballot Box Test

 By Marc-André Miserez

 The question of whether Switzerland should allow the testing of embryos conceived in vitro (IVF) for genetic defects and serious illnesses will be put to a nationwide vote on June 14.

But the result of the ballot – a constitutional amendment – is set to be challenged to a second vote at a later stage. A group led by members of a small centrist party pledged to collect signatures to bring down a law already prepared by parliament to implement the constitutional reform.

A practice which is already common in several neighbouring countries, pre-implantation genetic diagnosis (PGD) is the genetic analysis of embryos conceived in vitro before they are implanted into the mother’s uterus.

Article 119 of the Swiss constitution already covers medically assisted reproduction and genetic engineering but makes no mention of PGD. Nor is it mentioned in the proposed amendment of that article on which the Swiss will vote in June.

The proposed amendment may be a minor modification to the text, but it could have major consequences.

Currently the constitution allows for the creation in vitro of only the number of embryos “that can be immediately implanted”, which in practice is three. If the amendment is passed, it will be possible to create as many “as necessary for medically assisted reproduction”, which could be up to 12 embryos.

 

Extended scope

 

However, following extensive debate on the issue, the parliament has already effectively extended the scope of the law as it would be applied should the amendment pass the ballot box test.

Aside from the creation of 12 embryos per treatment cycle, the law would authorise testing the embryos for incurable diseases and genetic anomalies such as Down syndrome.

It would also, with a view to the risks associated with multiple births, allow the freezing of embryos so that just one could be implanted at a time and the others saved for future attempts.

The parliament declined however, to authorise the creation of embryos to harvest stem cells for the sole purpose of providing medical treatment to a sibling.

While the law could seem restrictive compared to those of other western countries, it remains too liberal in the eyes of many Swiss.

The small centrist Protestant Party – its grassroots traditionally being members of the Protestant and Evangelical Free churches - has already announced its intention to attack the law via referendum, and to force a second vote.

The party can realistically count on support from all corners, with responses to such emotive issues usually driven by personal convictions rather than political alliances.

 

Baby selection

 

Marco Romano, a parliamentarian for the centre Christian Democrats, says allowing PGD could open the door to any manner of as yet undiscovered technological procedures being carried out on human embryos.

Romano, who was “tentatively in favour” of PGD early in the debate, says his position is “absolutely not dictated by religion”, but he changed his mind after having visited a reproductive medicine clinic in Lugano.

“There I saw the film I did not want to see,” he says.

“I spoke at length with a professor and I had the impression that the specialists want to use anything that technology makes possible, to the point of playing with life, reducing it to a point that is almost banal,” Romano adds.

“In the United States, 10% of testing is used to determine the sex of the child. In Switzerland, the parliamentary debate very clearly showed the willingness of some people to go even further. In accepting PGD, we open a door and we don’t know exactly where it will take us.”

But Romano is in favour of allowing prenatal diagnostic testing on foetuses in the uterus, which is allowed in Switzerland and can lead some parents to a decision to abort the pregnancy, possible up to 12 weeks.

“Sometimes it is necessary. But with PGD we are going a step further. It becomes a selection, the tendency to want a made-to-measure baby. For me, it’s the moment to say stop. I don’t want to allow the possibility of greater selection,” he says.

 

Creating certainty

 

Supporters of PGD argue that allowing the procedure will add a layer of certainty for would-be parents.

“We have to clearly communicate what this will allow for couples, instead of starting to enter into all the fantasies about medically assisted reproduction,” says Liliane Maury Pasquier, senator for the leftwing Social Democrats.

A trained midwife and member of the commission that examined the parliamentary project, Maury Pasquier says the “obstacle course” that couples navigate before turning to in vitro fertilisation – often years of unsuccessful attempts to conceive, the shock of being diagnosed as infertile and/or with a serious transmissible disease - is “painful and humanly difficult”.

“When a couple starts in vitro fertilisation, there is already quite a history that has preceded it,” she says.

“And finally, they find themselves with an embryo that is ready to be implanted and if PGD is not done [many couples will have this procedure in neighbouring countries, ndlr], we have the beginnings of a pregnancy, in which a woman has placed all her hopes … or not at all, because she is scared of what a PGD could have revealed. And so it adds even more weeks of uncertainty.”

Maury Pasquier argues allowing PGD will provide mothers and the potential children with “more security” and help to “avoid adding suffering to suffering”.

 

Technology and personal choice

 

Romano does not deny that Switzerland – like all the older countries – needs more children. However he argues that a baby is “a gift, surely the most beautiful that we can receive, but it is not a right.

“We cannot legislate it. But today, we have a tendency to see rights for everyone. And when I see what happens in other countries and the possibilities that technology offers, it scares me.”

Maury Pasquier argues that the choice of whether to bring a child into the world, or to have a handicapped child, must remain “eminently personal”.

“At the moment of prenatal diagnostic testing (on a foetus), we leave the choice up to the parents. So we should also leave it to them at the moment of a PGD,” she says.

“If we’re talking about human dignity, a 12-week-old foetus has potentially more than a five-day-old embryo,” Maury Pasquier adds.

 

Translated from French by Sophie Douez, swissinfo.ch

 

Disabled divided

 

Arguably those for whom the issue of preimplantation genetic diagnosis (PGD) is most relevant, the various Swiss associations for the disabled are divided on the issue.

Those who support allowing the procedure include the umbrella organisation Integration Handicap which applauds a reform that “gives couples who carry serious hereditary diseases the possibility to not pass the disease on to their children”, says the organisation’s equality manager Caroline Hess Klein.

In opposition, a coalition of 17 organisations is calling for a No vote on June 14. Secretary of the Agile group, Magali Corpataux says authorising PGD will mean parents run the risk “of reproaching themselves for having the choice and not making the choice that is considered right”.

However both groups oppose the law already voted by parliament which they argue goes too far. “There is a fear that, through this, it will be society that decides which life is worth living or not,” says Hess Klein.

Gillick Competence

Gillick competence is a term originating in England and is used in medical law to decide whether a child (16 years or younger) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.

The standard is based on a decision of the House of Lords in the case Gillick v West Norfolk and Wisbech Area Health Authority[1985] (1985) 3 All ER 402 (HL). The case is binding in England and Wales, and has been approved in Australia, Canada and New Zealand. Similar provision is made in Scotland by The Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services Northern Ireland stated that there was no reason to suppose that the House of Lords' decision would not be followed by the Northern Ireland Courts. (Wikipedia)

*****

Gillick (A.P.) (Respondent)
v.
West Norfolk and Wisbech Area Health Authority and the
Department of Health and Social Security (Appellants)
(England)
JUDGMENT
Die Jovis 17° Octobris 1985

The main question in this appeal is whether a doctor can

lawfully prescribe contraception for a girl under 16 years of age,
without the consent of her parents. The second appellant, the
Department of Health and Social Security ("the D.H.S.S.")
maintains that a doctor can do so. The respondent, Mrs. Gillick,
maintains that he cannot. The first appellant, West Norfolk and
Wisbech Area Health Authority, was not represented when the
appeal reached this House, but in the Court of Appeal they were
represented by the same counsel as the D.H.S.S.

Full text of decision 

Treatment for gender dysphoria in children: the new legal, ethical and clinical landscape

Malcolm K Smith and Ben Mathews

The Medical Journal Of Australia MJA

Med J Aust 2015; 202 (2): 102-104.  doi: 10.5694/mja14.00624

 Download PDF

Summary

• Gender dysphoria is a condition in which a child's subjectively felt identity and gender are not congruent with her or his biological sex. Because of this, the child suffers clinically significant distress or impairment in social functioning.
• The Family Court of Australia has recently received an increasing number of applications seeking authorisation for the provision of hormones to treat gender dysphoria in children.
• Some medical procedures and interventions performed on children are of such a grave nature that court authorisation must be obtained to render them lawful. These procedures are referred to as special medical procedures.
• Hormonal therapy for the treatment of gender dysphoria in children is provided in two stages occurring years apart. Until recently, both stages of treatment were regarded by courts as special medical treatments, meaning court authorisation had to be provided for both stages.
• In a significant recent development, courts have drawn a distinction between the two stages of treatment, permitting parents to consent to the first stage. In addition, it has been held that a child who is determined by a court to be Gillick competent can consent to stage 2 treatment.
• The new legal developments concerning treatment for gender dysphoria are of ethical, clinical and practical importance to children and their families, and to medical practitioners treating children with gender dysphoria. Medical practitioners should benefit from an understanding of the recent developments in legal principles. This will ensure that they have up-to-date information about the circumstances under which treatment may be conducted with parental consent, and those in which they must seek court authorisation.

German court rules against banning veil in schools, but Europe remains divided

Site the conversation

AUTHOR

1. 

   Nuno Ferreira

   Senior lecturer in law at University of Liverpool

Germany’s ban on teachers wearing the veil has been in and out of the courts for over a decade. Uli Deck/EPA

After more than a decade of legal battles and public debates in Germany, the country’s highest court has ruled against North Rhine-Westphalia’s 2006 ban on teachers wearing religious dress in state schools. On March 13, the German Federal Constitutional Courtdecided that an absolute prohibition on the wearing of a veil (generally the hijab) by state school teachers is incompatible with the German Constitution, in particular its provision on freedom of faith and of conscience.

But the German decision came in the same week that former French president Nicolas Sarkozy arguedFrance’s ban on the headscarf in schools should be extended to universities.

Across Europe, discussion continues about the extent to which the state can, or should, ban the wearing of headscarves or other religious symbols, such as thekippa, especially when worn by civil servants, other employees of state bodies or with public functions, or even by students of state schools. It has become a wide-ranging, contentious and divisive debate.

Legal challenges

Several countries in Europe have already prohibited the burqa in public spaces. In a 2004 Act, France prohibited the “adoption of signs or behaviours manifesting affiliation to a religion in state schools”, so restricting the freedom of both teachers and pupils based on its unique model of secularity or laïcité. France also has a ban on face veils in public spaces, and the European Court of Human Rights (ECHR) upheld the law in July 2014.

French courts have been handing down convictions for wearing veil in public since 2011. Ian Langsdon/EPA

In Switzerland and Turkey, teachers and students respectively have also been prohibited from wearing the hijab, and the laws have won the approval of the ECHR. Yet these decisions regarding Switzerland and Turkeyhave been rightly criticised as excessively restrictive and poorly justified. The ECHR used arguments relating to state religious neutrality, the need to protect children from undue religious influences and the right of parents to educate their children according to their religious beliefs. These arguments all seemed clearly insufficient to justify any such drastic limitation on the right of individuals to freedom of religion and to wear certain clothes.

The UK has not remained immune from this debate. Bothteachers and pupils have judicially challenged some of the restrictions on their freedom to wear certain religious attire, and courts are still in the process of clarifying the applicable law.

In Germany too, there have been some restrictive measures put in place throughout the last decade. Earlier decisions of the Federal Constitutional Court have accepted that the legislation of the German Länder (states) could lawfully impose a restriction on teachers’ religious dress. Yet, the Court has been somewhat sympathetic to the rights of complainants and conceded that state neutrality did not necessarily prevent state school teachers from wearing the hijab.

Getting the state out of our wardrobes

The debate on freedom of religion and the manifestation of religion through dress codes inevitably leads us to consider a range of fundamental rights: the right to privacy, the right to development of one’s personality, the right to equality, freedom of expression and the rights of minorities. Others have considered these issues within a wider discussion on the rights of parents, children, teachers and minorities, as well as on crucial aspects of national identity, multiculturalism, Islamophobia, secularism and liberalism.

These debates betray very clear – often narrow – understandings of individual autonomy, gender equality and religion. Many restrictions are justified within current preoccupations with global security, which can inevitably lead to even greater social tensions and limitations to individual rights. This is particularly relevant in educational contexts, where children should learn to respect differences and cherish diversity, rather than to fear and hate “the Other”.

“State neutrality” should not be used as an excuse for inactivity, as German lawyers Karl-Heinz Ladeur and Ino Augsberg have already argued. Prohibiting the burqa in public spaces may well be necessary for public security reasons as authorities need to be able to identify individuals. Yet banning religious symbols in the public arena altogether would be inappropriate as well, and should not be carried out on the basis of any model of secularism or neutrality. A more balanced and nuanced legal framework needs to be achieved.

Long live multiculturalism

Not long ago British prime minister, David Cameron, and the German chancellor, Angela Merkel, announced the failure of multiculturalism. Now this recent German court decision seems to be telling society that it has to keep trying: giving up on multiculturalism is not an option.

Only time will tell whether the decision will have an impact across borders and whether this approach will be emulated in other European countries. This would undoubtedly represent a welcome sea change, doing away with pointless restrictions on religious freedom and extreme models of secularism. Hopefully, multiculturalism is not dead yet – and will not be for a long time to come.