Inseminação artificial e a repercussão sucessória: questões polêmicas em razão da carência de legislação específica

Abstract

With the emergence of new technologies in the field of biomedicine, it made it possible to store genetic material in specialized clinics for long periods. This allowed a child to be conceived after the death of its parent. This assisted reproduction technique is called post mortem homologous artificial insemination. This is an especially controversial issue, as it generates conflicts due to the lack of existing legislation and involves fundamental rights in its analysis. Thus, this monograph discusses as a problem: what is the effectiveness of applying the law in successions in the hypothesis of artificial fertilization? and its general objective is to demonstrate the need for regulation about artificial insemination, recognizing the legitimacy of succession of the born child. The methodology used in this study was bibliographic research, with reference to books, doctrines, legislation, jurisprudence, scientific articles and websites related to the topic. Thus, the reflections begin with the evolution of the family structure and the guiding principles of family law. Then, there is a study of parentage and kinship, in addition to addressing assisted reproduction and its techniques. Finally, it examines the controversial issues about artificial reproduction and its legal implications, due to the lack of relevant legislation, verifying whether the law is compared and analyzing the jurisprudential understandings on the subject. The big problem is that the legal system has not followed the evolutionary process of biomedicine. Currently in Brazil, there is no specific constitutional or infra-constitutional legislation on the issue of assisted reproduction, what we have is a reference to artificial insemination techniques, exclusively, when establishing the presumption of affiliation provided for in art.1.597 of the Civil Code, in an unjustifiable manner , there is no forecast of the effects of the use of procedures under the inheritance law, in this sense, it is concluded that to resolve the questions about medically assisted reproduction and its consequences in the legal environment, with the purpose of ensuring the realization of human potential and the maintenance of dignity, it is necessary, in addition to seeking as a foundation the constitutional principle base, doctrine and jurisprudence, a specific legislation to bring greater legal certainty in decisions. [resumo fornecido pelo autor]