Adotar o Próprio Filho
Essa dica de leitura veio do amigo Cristiano Silveira, que foi colega na faculdade de Biologia da UFRGS. Vamos a ela:
Imagem e texto originalmente em: http://eudesquintino.jusbrasil.com.br/
Um casal australiano, sem condições de gerar o próprio filho, contratou com uma tailandesa a utilização temporária de seu útero, conhecido pelo sistema útero de aluguel, pelo valor de R$30.000,00. Vingaram dois embriões transferidos e nasceram um menino, que levou o nome de Gemmy, portador de síndrome de Down, má formação cardíaca e infecção pulmonar e uma menina saudável, que foi levada pelos pais, enquanto que o menino foi deixado com a mãe biológica. A comezinha ética recomenda que o filho que nasceu é um ser humano e como tal merecedor de todo respeito e jamais pode ser considerado um bem protegido pela lei consumerista, onde se permite a troca ou a devolução por vício oculto. A mãe hospedeira, com a responsabilidade que lhe confere a maternidade, não entregou a criança para adoção e sim a assumiu, por incrível que possa parecer, como mãe.
No instante em que a fecundação assistida possibilitou às pessoas estéreis e hipofecundas condições de alcançarem a procriação, criaram-se, em alguns países, paralelamente, empresas especializadas no trato da questão: de um lado, mulheres que oferecem seus úteros com a finalidade lucrativa e de outro, casais dispostos a pagar pelo serviço, mediante assinatura de um contrato, realizado preferencialmente nos turismos sexuais programados para esta finalidade. Verdadeiro ato de comércio que chega mesmo a banalizar a técnica da fecundação assistida, exposta em vitrine para receber pedidos de encomenda de crianças.
A notícia causou repúdio globalizado, não só pelo procedimento adotado, como também pelo abandono do filho. A reprodução assistida é um método substitutivo e não alternativo de procriação, entendendo como tal a disposição da mulher para suportar uma gravidez em favor de outra pessoa, entregando-lhe o filho após o nascimento. Trata-se, sem dúvidas de um ato de solidariedade incomparável. Porém, quando é direcionado pelo caráter comercial, desmancha toda a poesia e sentimentalismo que reveste o ato.
No Brasil, no entanto, apesar de não existir lei regulamentando a matéria, não tem como ocorrer a hipótese ora narrada em razão de alguns conceitos que já se sedimentaram no noviciado da bioética e do biodireito, visando buscar uma perfeita adequação entre o universo científico e a realidade social, com um olho arguto dirigido especialmente para a ética. Não se trata de projeto de utopias e quimeras. A realidade bate à porta e necessita de suportes legais para sua entronização.
O Código Civil Brasileiro, em vigor a partir de 2002, em iniciativa exemplar, ensaiou os primeiros passos na regulamentação das inseminações e fecundações homóloga e heteróloga (art. 1597). Mesmo assim, o Código Civil Brasileiro, em vigor a partir de 2002, em iniciativa exemplar, ensaiou os primeiros passos na regulamentação das inseminações e fecundações homóloga e heteróloga (art. 1597).
Explicando melhor, a inseminação artificial compreende o procedimento de transferência do sêmen do cônjuge, companheiro ou outro doador para o aparelho genital feminino. A fertilizaçãoin vitro compreende a manipulação do material procriativo masculino e feminino, com a consequente transferência intrauterina dos embriões.
Desta forma, o casal pode se valer dos próprios gametas ou de doados por terceiros para atingir o projeto parental, além da doação temporária de útero. O problema, apesar de relevante socialmente, caminha por terreno ainda movediço e comporta várias discussões jurídicas, médicas, éticas e religiosas.
A doação temporária de útero, regulamentada pela Resolução nº 2013/2013, do Conselho Federal de Medicina, só tem lugar quando comprovado um problema médico que impeça ou contraindique a gestação, mas a doadora deve pertencer à família de um dos parceiros, em parentesco consanguíneo até o 4º grau, respeitando a idade de 50 anos. Se, por ventura, nenhuma doadora for encontrada na limitação legal, o Conselho Regional de Medicina, excepcionalmente, poderá autorizar o processo gestacional em útero de mulher não aparentada, sem qualquer caráter lucrativo ou comercial e com toda a cautela que o procedimento recomenda.
No que diz respeito à filiação da criança, a regra adotada no Brasil consiste na confecção do registro do recém-nascido em nome da mãe hospitaleira, que cedeu o útero. Desta forma, faz-se necessário que os pais genéticos, por meio de um processo longo e exaustivo, ingressem com um pedido judicial de mudança do registro da criança para seus nomes.
Contudo, visando abreviar a peregrinação judicial imposta, em recente decisão proferida no estado de São Paulo, a justiça concedeu o registro civil da criança em nome dos pais genéticos, sem qualquer menção à mãe substituta. Isto porque, o direito, em sua função social de atender as demandas da sociedade, verificou a necessidade de se buscar uma alternativa legal que aperfeiçoasse o procedimento do registro civil do recém-nascido, sem guardar qualquer prejuízo para as partes envolvidas.[1]
Como corolário lógico desta linha de pensamento, representativo de eterna gratidão, a Justiça poderia determinar a inserção do nome da doadora temporária de útero junto com a genética no assento de nascimento. Não deixa de ser uma verdade incontestável e um marco inesquecível para a criança que carregará o nome de duas mães e derrubará para sempre a presunção de que a maternidade é sempre certa.
Eudes Quintino de Oliveira Júnior, promotor de justiça aposentado, mestre em direito público, pós-doutorado em ciências da saúde, membro da CONEP, reitor da Unorp;
Pedro Bellentani Quintino de Oliveira, bacharel em Direito pela Universidade Mackenzie, advogado, Mestrando no Programa de Pós-Graduação em Direito da FCHS – UNESP, Franca/SP.
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