A autonomia reprodutiva no contexto do direito humano à procriação: aspectos fáticos e normativos da gestação por substituição no Brasil

Abstract

This research aims to make a cut in the Assisted Reproduction Technique (ART) known as Surrogacy – a procedure that uses the womb of a woman, to gestate the child and carry out the parental project of others. In order to highlight their controversies, especially with regard to aspects relating to motherhood, autonomy over their own body, about the target audience benefiting from the permissibility of using the technique, the aim is to answer the following guiding question: in the face of the absence of specific legislation, what is the best way to regulate the surrogacy in Brazil? Although the present investigation does not have a specific theoretical framework, it starts from the perspective developed by Stefano Rodotà that the logic of protection and protection of human dignity must be anchored in the passage from "subject to person", through the rupture of the idea of guardianship to the subject of abstract law, decontextualized from its social, cultural, economic and political reality. In view of the multidisciplinary developments involving the theme, the methodological path chosen was the exploratory study, through the predominant use of qualitative bibliographic analysis. Following the deductive logic, it sought to understand the influence of Biopower on the contours traced over the female body, so that it would be possible to contextualize the insurgency of TRA's and their implication in new family nuclei, in the process of debiologization of parental relationships and, thus, understand the law human to procreation. After this preliminary stage, a study was carried out with comparative law, with the bills of law and with the brazilian deontological norms created by the CFM. It was observed that the imprecisions in the protection of this act of life have been opening the way for the consolidation of a conservative and, in a certain way, punitive agenda, sometimes criminalizing the practice, sometimes benefiting only the heterosexual family model. The main conclusions were: i) the technique must be accessible to all family arrangements; ii) autonomy over her own body should guarantee the surrogate pregnant woman the possibility of creating onerous contracts; iii) the parental project must prevail in the event of a maternity conflict.