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Conflict over abuse of rights of action ends when invasion of the rights of others occurs


Extraordinary Appeal No. 1,264,444 / GO

The res judicata of Extraordinary Appeal No. 1,264,444 / GO at the STF ended a conflict started in 2005, when an injunction was granted in habeas corpus, later received as a writ of mandamus, withholding treatment authorized by the Judiciary to terminate pregnancy of a fetus with a diagnosis of non-viable life.

In this way, the STJ’s understanding of Special Appeal No. 1,467,888 / GO was stabilized, brought simultaneously to the extreme appeal, that the right of action is not absolute, constituting abuse, the invasion of others’ rights, as well as the extension from the understanding signed by the STF in the judgment of ADPF 54 to other cases of fetal malformation.

The factual situation involved the discovery by a couple, in September 2005, that the pregnant fetus had Body Stalk Syndrome (group of face, cranial, cardiac, diaphragmatic malformations, lower limbs and pelvic girdle, in which the umbilical cord is short or absent¹), followed by the request and judicial authorization to terminate the pregnancy. Therefore, a priest filed habeas corpus in order to suspend the procedure for anticipating childbirth, with an injunction granted two days after starting treatment for inducing labor. In the following week, the child died 1 hour and 40 minutes after delivery.

The procedural events relate, in summary, to the filing of an action for compensation for moral damages based on strict procedural responsibility and the abusive use of the right to action. The sentence of dismissal did not see the filing of habeas corpus in favor of unborn child abuse of rights. The judgment under appeal dismissed the interlocutory appeal, understanding that the abuse of the right of action is not configured, due to the lack of provision of the case as a cause of exclusion of illegality, in the Penal Code or in the jurisprudence, as well as the absence of conduct contrary to the legal system, consequently removing civil liability.

In the Special Appeal, the configuration of abuse of the right of action was argued, due to the existence of conduct for which an attempt was made to impose a religious position on others and bad faith consistent with the omission in habeas corpus that there was no viability of extrauterine life. In addition, the applicability of the FTS precedent in ADPF 54 on anencephalic fetus and the incorrect application of Article 2 of the Civil Code on the rights of the unborn child were sustained, since the Body Stalk syndrome makes life after birth unfeasible.

Thus, in the trial, in October 2016, of this Special Appeal, the controversy was delimited in knowing “whether the management of habeas corpus […] with the aim of preventing the interruption of pregnancy […], which had having been deferred in court, it is characterized as abuse of the right of action and / or action liable to generate civil liability […], due to the improper handling of urgent protection ”.

The rapporteur’s vote, Nancy Andrighi, was based on two main grounds, the extension of the understanding of ADPF 54 to other cases of fetal malformation that make extrauterine life unfeasible, and the possibility of responsibility for the exercise of the right of action in the face of the intimacy, privacy and honor.

In the first aspect, it was understood that the STF decision in ADPF 54 “spread its effects in an intertemporal way”, so that in Body Stalk syndrome, as well as in anencephaly, “the specific weight of the right to a future non-life , cannot prevail over the woman’s right to freedom, intimacy and self-determination ”, considering that in the circumstances of the specific case it would be up to the woman“ to say […] whether or not to interrupt the pregnancy ”,“ without risk of subsequent criminal prosecution and, mainly, without the possibility of interference by third parties ”.

It should be noted that in the judicial decision, it was made clear that the existence of indemnifiable damages also arises from the fact that the action of the defendant was decisive for the interruption of pregnancy treatment, endorsed by doctors and the Judiciary, to be stopped. Therefore, the abuse of the right to action is configured, since in its exercise, the right to freedom, intimacy and the disposition of the body by the pregnant woman was violated.

In this sense, the Rapporteur Minister emphasized that the “search for a right, in theory, legitimate, which, however, causes perishing on the way, the right of others, or even a blurred perception of the right itself, which impels someone to advance on the right others, are considered abuse of rights, because the regular exercise of the right cannot be subverted, itself, in a transgression to the law, in the abuse mode of the right, distorting an apparently legitimate interest, for the excess ”.

In the vote, it was also clarified that “the search of the Judiciary for emergency protection brings, for the one who handles it, the burden of responsibility for the damages that the granting of the claim may produce, especially when there is a chance of abuse of law ”, characterized, in the factual situation, because of the imposition of particular concepts on third parties, removing from others“ the same freedom of action that it vigorously defends for itself ”.

It was concluded, in this way, that the handling of habeas corpus with a preliminary order materialized violation of the couple’s privacy and privacy, trying to impose a particular position regarding the interruption of pregnancy; aggression to honor “by calling the attitude they took, under the auspices of the State, murder”; to act recklessly, imposing innocuous suffering, since the prognosis of non-viability of extrauterine life was confirmed.

Finally, it should be added that in June 2020, it was decided in Extraordinary Appeal No. 1,264,444 / GO, by Minister Dias Toffoli, that the extreme appeal was hampered by supervening loss of object, due to the Appeal Special to have been provided by the STJ, setting a compensation of R $ 60 thousand, as moral damages, and succumbent fees of 10% on the amount of the sentence. Thus, in August 2020, there was a final decision, ending the conflict and making it possible to start the sentence.

By: Wilson Sales Belchior

¹ MATOS, Ana Paula Pinho et. al. Evaluation of the fetal abdomen by magnetic resonance imaging. Part 2: malformations of the


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