The present master's dissertations aimed to analyze the assisted human reproduction (AR), in
the substitute maternity modality “surrogate motherhood”, through the phenomenon of
judicialization, evaluating the legal situation around the surrogacy procedure. The work was
based on a bibliographical-documental, jurisprudential and interdisciplinary research, based
on the dialogue between biolaw, bioethics and Constitutional Law, where content analyzes
were carried out through a qualitative and descriptive approach of the various sources of
courts ( STF, STJ and TRF), databases, in a period of ten years, which, when analyzing the
universal and equal access to these new technologies of assisted human reproduction, aimed
to support the thesis that AR and motherhood should be in the System Health Service (SUS).
The scientific production on assisted reproduction and surrogacy, in the period from 2010 to
2020, on the judicialization of health in AR and surrogacy was presented. In the courts,
solutions were also identified regarding the establishment of affiliation between those
involved and the solutions given to cases of conflict between those involved in the process
and the possibility of assistance in the SUS, as a public health policy. At the end, suggestions
were presented for solving a problem that has been dragging on for decades in Brazil, which
is the absence of a law on AR and surrogacy, more specifically, a law that allows universal
and equal access for those it is not able to finance the costs of the surrogacy procedure, also
allowing the use of AR techniques, within the scope of the SUS, for heterosexuals,
homosexuals and transgenders. Even so, it was proposed to update Ordinance 426/MS, of
March 22, 2005, which institutes, within the scope of the SUS, the National Policy for
Comprehensive Care in Assisted Human Reproduction, already in accordance with CFM
Resolution No. 2283/2020 and the update of Ordinance 3149/MS, of December 28, 2012,
which allocates financial resources to health establishments to carry out care procedures for
assisted human reproduction, within the scope of the SUS, including the surrogacy technique,
also for heterosexuals, homosexuals and transgenders and proposing the expansion of this
network of hospitals, with the other states of the Federation having at least 1 (one) state
hospital trained in AR techniques free of charge. Regardless of the criticisms and
controversies surrounding the surrogacy issue, infertility is a public health problem and
denying access to new technologies, and specifically those of high complexity, affects not
only human rights, but also reproductive rights and people's fundamental right to family
planning. The health system, by not performing its function, which is to guarantee the right to
health, ends up bringing a problem to be resolved within the legal system, which needs to
decide on the actions for the judicialization of health.
|
