MONTEIRO, Liny Cóe. SILVA, Marcos Vicente Pereira da. Limits of Genetic Research with Embryonic Stem Cells In relation to the Rights to Life and Health. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 11, Vol. 23, pp. 117-136. November 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/genetic-research
- 1. INTRODUCTION
- 2. DEVELOPMENT
- 2.1 GENETIC RESEARCH WITH EMBRYONIC STEM CELLS
- 2.1.1 CONCEPT AND OBJECTIVE OF RESEARCH
- 2.1.2 EMBRYOLOGY: HUMAN DEVELOPMENT
- 2.1.3 LEGAL GUARDIANSHIP IN THE LEGAL SYSTEM
- 2.2 FUNDAMENTAL RIGHTS AFFECTED BY EMBRYONIC STEM CELL GENETIC RESEARCH
- 2.2.1 FUNDAMENTAL RIGHTS AFFECTED BY GENETIC RESEARCH: RIGHT TO LIFE AND HEALTH
- 2.2.2 LEGAL PROTECTION OF EMBRYOS
- 2.3 GENETIC MANIPULATION AND ITS LIMITS IN CONFRONTATION WITH THE RIGHT TO HEALTH AND LIFE
- 3. FINAL CONSIDERATIONS
Through the use of embryonic stem cells, the scientific community has seen the possibility of cure for genetic and non-genetic diseases, due to the ability of these cells to develop in any tissue in the body. However, this line of research raises the question of whether the embryos used, derived from in vitro fertilization procedures, have life or not, and whether their use in research would represent a violation of the rights to life and health provided for in art. 5, caput, of the CF/88. A bibliographical research was carried out, through the doctrine, scientific articles and the understanding of the Supreme Court, with the objective of understanding how these researches occur, the contrary and in favor positions, as well as their regulation by the national legal system. In the end, it is possible to observe that, despite the controversy, provided that the conditions provided for in the legislation are observed, embryonic stem cell research does not represent a violation of the rights to life and health provided for in Art. 5 of the CF/88.
Keywords: Genetic research, embryonic stem cells, right to life, right to health.
The present study aims to address the limits of genetic research with embryonic stem cells in relation to the rights to life and health. It has as a general objective to analyze whether these researches hurt these rights mentioned above.
The theme is controversial due to the consideration that embryos from in vitro fertilization processes are possessors or not of life, and such studies are considered an affront to life by some scholars (DINIZ, 2017).
However, other scholars understand that through these studies the realization of the right to life is guaranteed, thus being considered a controversial theme (MARCO, 2013).
The methodology of this work was through a bibliographical research, through the analysis of scientific articles, sites related to the subject and a documentary research with laws that support this subject. Thus, being an exploratory research with the objective of analyzing whether the limits of genetic research with embryos hurt the rights to life and health
The first chapter will address what genetic research is, conceptualizing them and talking about their objective, bringing technical concepts from other areas, since this theme is an interdisciplinary subject, requiring a notion of concepts from other areas, such as the explanation of how human embryonic development occurs.
In addition to this technical part, the chapter will deal with legal protection in the legal system in Brazil, with the Biosecurity Law, how and under what circumstances these researches can be carried out and, due to its controversy as the (Superior Federal Court – STF) understood in relation to the matter.
In the second chapter it will deal with fundamental rights that are affected by genetic research, bringing positions for and against the realization of research. In addition to bringing a topic on the legal protection of embryos and understanding of when life begins for the STF.
Finally, the last chapter will deal with the limits that guide genetic research, such as the international and national documents that guide the researches, the questioning raised with the action of unconstitutionality no. 3510 in relation to the Biosafety Law and the understanding of the STF in relation to all the questions raised, with the analysis of the votes of the 11 ministers.
2.1 GENETIC RESEARCH WITH EMBRYONIC STEM CELLS
This chapter will cover what genetic research with embryonic stem cells is, what their purposes are, and how the procedure for studies of these cells happens. It will also be addressed, as the Brazilian Legal System provides for these researches.
2.1.1 CONCEPT AND OBJECTIVE OF RESEARCH
The evolution of science and technological advances have allowed humanity to achieve knowledge never imagined in the past. Thus, to understand the objective of this work, we have to know certain concepts, such as Genetics, which is the study of heredity, that is, the way we transmit our characteristics from generation to generation.
The advances of technologies allowed us to discover that within the nucleus of cells there are chromosomes, which are formed by a long chain of DNA (deoxyribonucleic acid), which, in turn, is formed by two long chains that complement each other. In the nucleus, there is DNA and RNA (ribonucleic acid), which is the genetic material that contains determining information of hereditary characters transmissible to offspring. (BRASIL, 2005)
Each piece of DNA that contains the information for a protein constitutes a gene. The scientific community decided to call the Mendelian unit of heredity a gene, since the gene determines a hereditary character. (AMABIS, 2004)
Through genetic engineering, which is the activity of production and manipulation of recombinant DNA and RNA molecules (BRASIL, 2005), the removal or exchange of genes occurs, which are intended to correct the defect, and, due to further study, there was mapping and sequencing of the human genome.
The Genome would be the set of DNA molecules of a species, which contains all its genes (AMABIS, 2004). Every species has its genome, the way its genes are arranged along the DNA chain, for example, genome of bacteria, protozoa and fungi.
The mapping and sequencing of the human genome took place through a project called the Human Genome Project. This project, by discovering the genetic code, allowed more advanced studies, such as the function that each gene evidences, what the alteration or mutation of one gene by another can cause in human health, among other cases, brought an evolution to medicine, since diseases can be diagnosed early, and can be treated in order to avoid the development of certain diseases , among others.
From all the knowledge of cells, the discovery of genes and their manipulation technologies, the so-called gene therapy emerged. This aims at transferring genetic information, or rather, from genes from one organism to another to reduce disorders, genetic or non-genetic diseases (DINIZ, 2017).
This whole procedure is very much expected both for doctors and scientists, as well as for people suffering from diseases and is hoping for a possible cure or at least soften symptoms.
There are two types of gene therapies: gene therapy with somatic cells (TGCS) and gene therapy with germ cells (TGCG). TGCS is performed at any stage of human development, excluding the pre-embryonic phase. The purpose of this technique is to cure an illness. This procedure acts only on cells of the body, and can be any but gametes, which are known to be germ cells. Human germ cell, in turn, is the mother cell responsible for the formation of gametes present in the female and male sex glands and their direct descendants in any degree of ploidia (BRASIL, 2005).
Thus, any treatment that seeks the improvement or cure of a disease will affect only the disease cell or tissue, such a genetic change performed in a person will not be transmitted to descendants, since the improvement occurred only in somatic cells, and not in germ cells, which are responsible for hereditary transmission. However, it is worth remembering that the disease, the problem in a given gene, will continue to be transmitted, since its information has not been changed.
However, TGCG is performed before or after fertilization or in the pre-embryo itself with the fulcrum of correcting some genetic problem. It happens that this type of procedure alters the hereditary burden of the new organism, that is, it changes the genome and is transmitted to the offspring (DINIZ, 2017).
All these procedures, research and studies conducted with the human genetic code and the search for cures of genetic anomalies and other non-genetic diseases, have established a field of study and research with embryonic stem cells. These cells have been the hope of both the scientific society and people.
Embryonic stem cells are embryo cells that have the ability to transform into cells of any tissue in an organism (BRASIL, 2005).
However, the obstacle of these cells is that they are found in embryos and are removed when they are in the blastocyst stage. This procedure is performed in embryos generated by in vitro fertilization, which was another achievement of science and genetics, in being able to enable couples who cannot have children, for numerous reasons, a possibility through this method. Because it is removed from embryos not yet implanted, several debates arise about the procedure.
On the other hand, we have adult stem cells that can differentiate into only a few tissues and are found in the bone marrow, placenta and umbilical cord. These, unfortunately, are limited because they cannot originate all the tissues of the human body.
The procedure performed with embryonic stem cells comes from the excess embryos of the assisted reproduction technique, i.e. in vitro fertilization, outside the woman’s body. In this process occurs the production of 15 embryos through laboratory techniques, of these, 4 are destined for implantation in the woman’s uterus in order for some of them to be able to implant in the endometrium (wall of the uterus) and develop a future pregnancy.
Meanwhile, the rest of the embryos are stored, being frozen by cryopreservation technique at temperatures below zero degree Celsius. These embryos are available in the laboratory if the couple is interested in having more children in the future.
The aim of the research is the use of these frozen embryos, and stem cells are removed in the blastocyst phase. These embryos are not considered possessors of life, since they were not implanted in the uterus or began to have their independent development, which characterizes life.
2.1.2 EMBRYOLOGY: HUMAN DEVELOPMENT
It is of fundamental importance to understand the process of human embryonic development in order to be able to position oneyourself on the subject. Thus, Embryology, a science that studies the development of the embryo, has helped us in the development of the process.
According to this science, the process begins with fertilization, which consists of the fusion of two original cells, one of the mother and the other of the father, the egg and sperm, respectively. After fertilization, a new cell called zygote (AMABIS, 2004) appears.
Science divides embryonic development into 3 phases after fertilization: segmentation, gastrulation and organogenesis. Thus, the process begins with segmentation, or also called cleavage phase, which consists of several cell divisions that the zygote suffers until it transforms into a cluster of cells called the morphula. The cleavages continue until the morph acquires an internal cavity filled by a liquid, the name of this stage is called a blahtula.
The blástula continues its development entering the next phase known as gastrulation. At this stage, embryonic cells continue to multiply until they turn into gastrula. At that moment, the three germ leaflets appear, which in the future will give rise, by differentiation processes, to the tissues and organs of the organism. This differentiation of the leaflets takes place precisely in the organogenesis phase (AMABIS, 2004).
It is worth mentioning that, in the cleavage phase, the first cells resulting from the process of cell division are called blastomeres, giving rise to the embryo, which in this phase is a cluster of several cells, in this case the morph, already explained.
It is precisely in the blastocyst phase that the embryo implants in the mother’s uterus, this process is called nidation. After this process, the embryo begins its entire development, commanded by the genetic code arranged in its cells and using the mother’s body to meet its biological and physiological needs such as nutrition, excretion, among others.
Therefore, it is in the blastocyst stage that embryonic stem cells are removed, and a new being can no longer be generated.
2.1.3 LEGAL GUARDIANSHIP IN THE LEGAL SYSTEM
In Brazil, Law No. 11,105 of March 24, 2005, known as the Biosafety Law, was sanctioned, which aims to regulate and limit genetic research, in order to bring greater security to both the population and the environment.
In this way, it seeks to stop companies, which aim at profits, to commit atrocities, to protect the integrity and dignity of the human person and to prevent repeated acts of torture and cruelty, such as those committed in Nazi Germany, seeking the improvement and selection of a superior race, in this case, the Aryan.
Regarding the focus of the research, which is the use of embryonic stem cells, law no. 11,105/05 allows the use, provided it meets some requirements (BRASIL, 2005).
Here is what you need to mention:
Art.5°: For research and therapy purposes, the use of embryonic stem cells obtained from human embryos produced by in vitro fertilization and not used in the respective procedure is permitted, following conditions:
I- Be unviable embryos; Or
II- Whether embryos have been frozen for 3 (three) years or more, on the date of publication of this law, or that, already frozen on the date of publication of that law, after they have completed three (3) years, from the date of freezing.
§ 1° In any case, the consent of the parents is required.
§ 2° Research institutions and health services that carry out research or therapy with human embryonic stem cells must submit their projects to the appreciation and approval of the respective research ethics committees.
§ 3° The commercialization of the biological material referred to in this article is deceitable and its practice implies the crime typified in Article 15 of Law 9434 of 04.02.1997.
However, the permission to use these cells brought debates due to not agreeing with the use of embryos, because they understand that it hurts the greatest good protected by the Federal Constitution of 1988, life. Besides claiming to hurt human dignity.
The numerous criticisms of the law, gave rise to declaratory action of unconstitutionality 3510, filed at the time by the Attorney General of the Republic, Claúdio Fonteles, since he understood that Article 5 of the Biosecurity Law hurt and violated rights and guarantees proclaimed by the Federal Constitution, such as life and the principle of human dignity (BRASIL, 2005).
According to Fonteles, human life happens in, and from, fertilization and emphasizes that the human embryo is human life. Therefore, the judge ADI in order to request the declaration of unconstitutionality of Article 5 of the mentioned law and asks the holding of a public hearing to discuss the matter.
However, the Supreme Court considered ADI No. 3510 to be unfounded because it considered that Article 5 of Law No. 11,105 did not harm the Constitution, which was in full harmony, and there was no violation of the right to life and dignity of the human person (BRASIL, 2008).
The repercussion of this debate was such that it resulted in the first public hearing in the STF, being an unprecedented fact in history. Thus, it allowed society to manifest itself, not being restricted. However, the constitutionality decision was unanimous among the 11 ministers, all of which were in favor of the survey. Only a few stressed the importance of some restrictions.
The votes and restrictions stand out: six ministers stated that Article 5 of the law was in perfect condition with our legal system and dismissed the ADI, being: Carlos Ayres Britto, rapporteur of the matter, Ellen Gracie, Cármen Lúcia Antunes Rocha, Joaquim Barbosa, Marco Aurélio and Celso de Mello.
However, Ministers Cezar Peluso and Gilmar Mendes, despite stating that the law is constitutional, stressed the need for research to be rigorously monitored from an ethical point of view by a central body, in this case, the National Commission of Ethics in Research.
In turn, the other three members said that research can be done, but only if the embryos still viable are not destroyed for the removal of stem cells. This was the understanding of Ministers Carlos Alberto Menezes Direito, Ricardo Lewandowski and Eros Grau (BRASIL, 2008).
Thus, one can understand how research with these cells occurs, understand the process of embryonic development of the human being and in which phase embryonic stem cells are collected. Thus, it is observed that such research does not hurt the right to life or the dignity of the human person, since there is no life, as the Supreme Court understood in dismissing ADI No. 3510.
2.2 FUNDAMENTAL RIGHTS AFFECTED BY EMBRYONIC STEM CELL GENETIC RESEARCH
2.2.1 FUNDAMENTAL RIGHTS AFFECTED BY GENETIC RESEARCH: RIGHT TO LIFE AND HEALTH
Genetic research with embryonic stem cells raises questions and contrary positions. Those who are against claim that it is a violation of the maximum brazilian legal system, in this case, human life. They consider the coisification of life, besides hurting the dignity of the human person.
On the other hand, those in favor of the research claim that it does not consist of a violation of life, because the embryo destined for this type of study has no life, since neither implanted in the uterus was, and has already spent at least three (3) years frozen, as provided for in Article 5 of the Biosafety Law. Therefore, they claim that the use of embryonic stem cells removed in the blastocyst stage does not hurt the right to life.
Therefore, one must first understand what fundamental rights are. On these rights writes Uadi Lammêgo Bulos:
Fundamental rights are the set of norms, principles, prerogatives, duties and institutes, inherent to popular sovereignty, which guarantee peaceful, dignified, free and egalitarian coexistence, regardless of creed, race, origin, color, economic condition or social status (BULOS, 2012, p.522).
Fundamental rights are divided by doctrines into generations, thus being able to highlight the six generations: the first is that of individual rights, which are the right to life, religion, freedom of movement, among others. Then there is the second generation, which relates to social, economic and cultural rights, these aim at equality related to work, social insurance, etc. The third generation, in turn, is the rights of fraternity, these rights being related to healthy life, the balanced environment, self-determination of peoples, among others (BULOS, 2012).
The fourth generation stands out, which refers to the right of peoples related to health, informatics, euthanasia, transgenic foods and genetic engineering. It follows the fifth generation that is the right to peace. Finally, the sixth generation, concerning the rights to democracy, information and political pluralism.
The objective of this research is to focus on the rights found in the first and fourth generation, which are influenced by the procedure performed with embryonic stem cells.
Therefore, it is necessary to understand what life so defended is. In the Federal Constitution of 1988, this right is expressed in Article 5 (BRASIL, 1988), being considered, in Brazil, as the most important of all rights, since no life has nothing.
The concept of “life”, for the purposes of jusfundamental protection, is that of physical existence. Therefore, it takes care of a purely biological criterion, and human life is considered all that based on the human genetic code (WOLFGANG, 2014).
Thus, life is the physical existence of man, with its biological functions related to the functioning of the human body, from the beginning of human life to the end, which ends with death. In Brazil, death is attested from brain death.
Thus, the right to life is the individual’s right not to have an interrupted life, therefore, to have his life respected (right not to be killed), as well as the right to have life protected by the State (WOLFGANG, 2014).
According to the judgment of ADI No. 3510 by the STF, which dismissed the action of unconstitutionality, the Supreme Court understood that there is no violation of life or dignity, but that these studies reinforce life and health, by the possibilities they can bring (BRASIL, 2008).
In fact, the non-performance of one of these studies, which would allow healing and bring countless advantages to man, is that it would be a violation of the lives and health of these people, because they would not have the hope and the chance to cure themselves of the diseases, or even to prevent them from developing.
However, opinion differs precisely in when life begins, since those who are in favor of research, such as the STF, understand that it is at the moment that nidation occurs, that is, that the embryo is implanted in the woman’s uterus and begins to interact with it, developing, is that there is life. Then, from that moment on, the embryo deserves all the necessary protection, not being possible to perform abortion, since it has life and is developing, having the right to be born.
On the other hand, Maria Helena Diniz, for example, considers that life begins from her conception, that is, there was fertilization of the egg and sperm (DINIZ, 2017).
Finally, there are those who understand that the embryo only has life from the formation of the nervous system, as minister Carlos Ayres Britto when judging the ADI, since in our legal system, to consider that the individual is dead, is from brain death. Thus, it is understood that to have life also occurs with the beginning of this activity (BRASIL, 2008).
Health, in turn, is another right impacted by these studies, which aim to seek the improvement and cure of various diseases. According to Uadi Lammêgo Bulos, health is the state of complete physical, mental and spiritual well-being of man, and not only the absence of diseases and diseases (BULOS, 2012).
Thus, as the Magna Carta states in article 196, the State has a responsibility to ensure this well-being for man. Ensure, through public policies that everyone has access to treatments, medicines, aimed at curing diseases or avoiding developing them.
Art. 196. Health is the right of all and the duty of the State, guaranteed through social and economic policies aimed at reducing the risk of disease and other injuries and equal universal access to actions and services for its promotion, protection and recovery (BRASIL, 1988).
Thus, the State, allowing these researches to be carried out, will enable and effect the right to health, since genetic research and possible cures will bring more quality of life to the population and, consequently, guarantee the right to life.
2.2.2 LEGAL PROTECTION OF EMBRYOS
It is known that in vitro fertilization, after the procedure, there is a quantity of embryos that are stored, are called surplus embryos. The research uses precisely those left over, if the parents authorize, to perform the removal of stem cells.
Law No. 11,105 of 2005 stipulates that unviable embryos or those that have been frozen for 3 years or more should be used. But first it is necessary to understand what these unviable embryos are. Decree No. 5591 of November 22, 2005 conceptualises in article 3 item XIII:
Art. 3. For the purposes of this Decree, we consider: […] XIII – unviable embryos: those with genetic alterations proven by preimplantation diagnosis, according to specific standards established by the Ministry of Health, which had their development interrupted by spontaneous absence of cleavage after a period longer than twenty-four hours from in vitro fertilization, or with morphological alterations that compromise the full development of the embryo (BRASIL, 2005).
Therefore, these embryos that have been frozen for some time and those that are unviable, because they cannot be implanted due to some genetic problem, should be used in research. It is not logical for these embryos not to be used, since the end of them is to be discarded. So nothing more sensible than using them and not losing a biological material that can bring benefits if they are studied.
However, opponents of this process claim that embryos have life and consequentrights. Thus, Maria Helena Diniz understands:
The embryo, because it has all the attributes of the human species, deserves the protection of its life, physical integrity and dignity (CF, articles. 1, III and 5°, III), scientific image (DNA) being inadmissible any experimental investigation, with the objective of evaluating its viability, the detection of hereditary diseases or its own therapy (DINIZ, 2017, p. 643).
On the other hand, according to the understanding of the Supreme Court, it is understood that the embryo only has life and is the owner of rights from the moment of nesting. What is used in the in vitro fertilization process is nothing more than a mass of cells, thus being allowed to use it (BRASIL, 2008).
We can highlight the same logic for the use of pills the next day, they have no way of being considered abortive, since the implantation of the embryo naturally in the body occurs on the seventh day after fertilization. It is also worth mentioning that the pill should be ingested up to 72 hours after sexual intercourse in such a way as to obtain the effect of contraception. In this case, what the woman’s body will expel is not considered to possess life, because there has not yet been nesting, being merely a cell mass.
Thus, it is observed that the existence of these studies with embryonic stem cells does not hurt the Constitution in their fundamental rights, but rather that their non-realization confronts these rights, such as health and life, since they do not allow medical evolutions to occur and that they allow the effective exercise of these rights, since they are limited. It is also understood that embryos are not considered possessors of life, but mere cellular clusters, but may be destined for the purpose of research.
2.3 GENETIC MANIPULATION AND ITS LIMITS IN CONFRONTATION WITH THE RIGHT TO HEALTH AND LIFE
This chapter will deal with the limits that guide genetic research, such as the international and national documents elaborated and the position to which the research follows, in this case, that of the Supreme Court, being in favor of carrying out these researches.
The study with the human genome and genetic research, which use this biological material, raised debates and questions about the limits on this theme, since it was necessary to have guidelines in order to guide the scientific community and with the objective of avoiding the evil use of the human genome, such as the practice of eugenics, degrading tests and disrespect to humans.
Thus, documents were edited, both internationally, as the Universal Declaration of the Human Genome and Human Rights, as well as nationally with the Biosafety Law.
The Universal Declaration of the Human Genome and Human Rights of 1997 aims to protect human rights against potential injuries, originated in the practice of some applications on the genome and to ensure the exercise of scientific activity that does not contravene human dignity. (MYSZCZUK, 2006)
This document aims to protect man from being placed as an object in the market, since around these researches revolve numerous companies that profit from the discoveries; thus, they limit their actions, so as not to hurt the dignity of man. In addition, as Ana Paula Myszczuk explains:
It establishes limits in genetic research, imposing principles and rules of regulation of a mandatory nature to the scientific community, society and the signatory State itself and determines that the objective of genetic research is to improve the quality of life humanity and to alleviate the suffering of patients undergoing genetic research or treatment. Therefore, no one can appropriate the ownership of the human genome, whether researchers, states, groups or individuals, or completely modify their current characters (MYSZCZUK, 2006, p. 59).
Thus, it is understood that the principle of the dignity of the human person is the main guiding of the Declaration, limiting all actions that violate this principle and, at the same time, directing research that seeks to guarantee this dignity, as a better quality of life and health, since, through these researches, there is the discovery of medicines and medical treatments, in addition to avoiding the development of genetic diseases , when treatments are performed in the embryo phase, i.e. diagnosed early.
In the national field, we have the Magna Carta and the Biosafety Law that regulate research, in order to prevent them from running away from their goal that guarantees the improvement expected by them.
The Federal Constitution of 1988 presents as one of its principles, right in the first article, that of the dignity of the human person, that is, in addition to the Declaration already mentioned, this foundation is again found in the constitutional text of Brazil.
Thus, the relevance and importance of human dignity for ethical and moral guidelines to act within the legal limits that regulate these researches are shown. Thus, says Ana Paula Myszcuzk:
The existence of genetic manipulation is justified if it serves to promote the dignified existence of the human person, to collaborate to improve the quality of life of the patient and the human species. This leads to the conclusion that genetic manipulation cannot be admitted to sacrifice the person or cause irreversible or difficult genetic damage (MYSZCZUK, 2006, p. 83)
It is with this objective that research should be supported, since it seeks to improve the quality of life of a collectivity. However, it must be limited by respect for the dignity of the human person in order to avoid atrocities and forms of torture and suffering.
Despite positions contrary to this type of line of research, such as Professor Maria Helena Diniz, when she states that she rejects not only any type of non-therapeutic experimentation with embryos, but also in vitro fertilization techniques that imply the loss of fertilized eggs, because there is a sacrifice of human lives (DINIZ, 2017).
It is noteworthy that this research is in favor of the same understanding of the Supreme Court, which considered that there was no life in embryos, which were not implanted in the uterus and it was by this line of reasoning that rejected ADI No. 3510, which challenged Article 5 of Law No. 11.105 of 2005, because it considered that it hurts the life and dignity of the human person and , thus, prevent this line of scientific research that studies embryonic stem cells.
According to the votes of the 11 ministers, who make up the Court of the STF, it was decided by the constitutionality of Article 5 of the Biosecurity Law. The following is the summary of the votes and arguments of ministers:
According to Minister Carlos Ayres Britto, the rapporteur of ADI No. 3510, voted for the total dismissal of the action. He stated that in the course of human life, the embryo must have been implanted in the human uterus. He understands that the zygote is the first phase of the embryo, being totally different from a natural person, since he has no formed brain. In addition to referring to various provisions of the Constitution, such as Articles 196 to 200, which address the right to health and the obligation of the State to guarantee it, to defend the use of embryonic cells and for the treatment of diseases. (BRASIL, 2008)
According to Minister Ellen Gracie, one cannot challenge the guarantee of dignity of the human person, nor the guarantee of the inviolability of life, because the pre-embryo was not even welcomed in its natural nest of development, uterus, does not qualify as a person. Therefore, she voted to take the action. (BRASIL, 2008)
Carlos Alberto Menezes Law ruled the action partially well founded, states that embryonic stem cells are human life and any destination of them for the diverse purpose that human reproduction violates the right to life. According to him, research with stem cells can be maintained, but proposes some restrictions, such as greater rigor in the inspectionof in vitro fertilization procedures and prohibition of destruction of embryos used, with the exception of unviable ones.
Minister Carmen Lúcia reaffirms the rapporteur’s position. For her, research with embryonic stem cells does not violate the right to life, on the contrary, they contribute to dignify human life and, moreover, the result of research consolidated with its use in treatments aimed at health recovery, do not harm human dignity.
Ricardo Lewandowski judged the action partially well-founded, voted in favor of the research, but made some restrictions, such as the non-destruction of viable embryos for the removal of stem cells.
Eros Grau also voted for the constitutionality of Article 5 of Law No. 11.105/05, that is, partially well-founded, however, making some reservations, such as the creation of a central committee in the Ministry of Health to control research, in addition, reaffirmed the position of obtaining embryonic stem cells from unviable eggs or without damaging the viable ones.
Minister Joaquim Barbosa voted to impave the action and claimed that the prohibition of research with embryonic cells means to close your eyes to scientific development and the benefits that can come from it.
Cezar Peluso understands that these studies do not offend the right to life, because frozen embryos do not equate to people. He claimed some restrictions, such as strict surveillance of research and the need for the National Congress to approve legal instruments to regulate research.
According to Marco Aurélio, who fully accompanied the rapporteur’s vote, Article 5 of the Biosafety Law is in harmony with the Constitution. It states that throwing discarded embryos into the trash for human reproduction would be a gesture of selfishness and a great blindness when they can be used to cure diseases.
Celso de Mello voted to take the action. He stated that the State cannot be influenced by religion and that these researches will allow Brazilians, who are suffering today and who are placed on the margins of life, to exercise a basic and inalienable right that is the right to seek happiness and also the right to live with dignity (BRASIL, 2008).
Finally, Gilmar Mendes argues that Article 5 of Law 11.105/05 is constitutional, but highlights the importance of the creation of the Central Committee of Ethics and Research.
Following the position of the STF, it can be affirmed that research with embryonic stem cells does not violate the life or dignity of the human person, since the embryos resulting from in vitro fertilization have no life, since they were not implanted in the uterus. On the contrary, the realization of these researches and the possible results arising from them may allow the real realization of rights, such as living a dignified life and far from suffering caused by diseases, in addition to curing diseases, thus ensuring quality health, or at least alleasing certain sufferings.
Therefore, the prohibition of these surveys would be a violation of the rights to life and health of people, who effectively enjoy life, to have an improvement in the quality of this. Research of this level will benefit a collectivity, and cannot be banned because of an embryo that has spent years frozen, besides constituting a mass of cells, not being a living being.
However, it is necessary to have limits in order to regulate these studies, since it is not intended to create an embryo production plant for this purpose and to be performed tests in random ways, without any pattern and without control.
Thus, in this chapter, it can be concluded that the regulation imposed by the Biosafety Law is in line with the Federal Constitution of 1988, and the way it allows the study carried out with embryonic stem cells ensure a dignified research free of atrocities or any torture to the human being.
3. FINAL CONSIDERATIONS
After all the analysis in relation to the objective of embryonic stem cell research and the understanding of how human embryonic development occurs, from the fertilization of gametes to the formation of the embryo, we understand that the embryo is only considered alive from the nidation, that is, its implantation in the maternal uterus.
We understand that the Biosafety Law, which protects these genetic researches in the Brazilian order, is perfectly in line with the Federal Constitution of 1988, which does not violate or violate any right present in it, especially fundamental rights.
Although this law was the subject of a Declaratory Action of Unconstitutionality, ADI No. 3510, more precisely Article 5 of that provision that was the target, for claiming that it hurts the right to life, the main right protected by the Magna Carta, the Supreme Court understood by the constitutionality of the article.
The vote of its 11 ministers was in favor of the law, stating that it did not violate any right of the constitutional text, because it understood that life only begins with the nesting of the embryo, so the research could continue. However, some ministers presented some caveats, such as the importance of the creation of the Central Committee of Ethics and Research.
Thus, we conclude that such studies do not hurt the right to life, because embryos do not have this right until they occur their implantation in the uterus, since the embryos worked in this type of study are frozen ones and that they respected the deadline established by the Biosafety Law, which are three (3) years frozen so that they can only be used as studies.
Thus, we adopted the same line of thought of the STF, when we understand the beginning of life, we understand that the non-realization of these studies is that they hurt the right to life and health, since the results arising from the findings of these studies with embryonic stem cells are that will provide an improvement in the quality of life of people, improving health and life.
Thus, the paper concludes that research should be carried out in order to seek an improvement in the quality of life and health of people and that the way they occur here in Brazil is well regulated, meeting and respecting the rights protected by the Federal Constitution and not hurting the principle of human dignity.
It is expected, therefore, that this work will be a source of future research, helping to arouse the interest of academic readers and society in clarifying and the importance of conducting genetic research to be carried out with embryonic stem cells, since they have the ability to develop in any tissue of the human body, thus being able to regenerate tissues destroyed by some accident , for example, or develop some tissue atrophied by a genetic problem.
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 Graduated in Law.
 Advisor. Master’s degree in Philosophy. Specialization in Civil Law and Civil Procedure. Law degree.
Submitted: August, 2020.
Approved: November, 2020.