Brazil

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) reviewed the constitutionality of the 1998 Amendment 20 of the Federal Social Security Law. The amendment imposed a maximum value on the amount of social security benefits that could be paid to a beneficiary under the general social security system at R$1,200 per month. On its face, the R$1,200 maximum applied equally to a number of eligible benefit categories, including maternity or pregnancy-related leave.

Brazil’s Supreme Court decided by a majority that transgender individuals could change their legal name and gender originally included in their civil registry, without the presentation of psychological or medical evaluation, hormonal treatment, transition surgery, or any other medical procedure. The majority understood that no judicial authorization is necessary for the amendment, stating only a self-written report of the trans person is sufficient to change his/her legal name.

In 2004, the Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) considered a claim brought by the National Trade Union of Health Workers and ANIS (Institute of Bioethics, Human Rights, and Gender) to determine whether terminating a pregnancy in which the fetus suffers from anencephaly (absence of major portion of the brain, skull, and scalp) violates the prohibition on abortion as set forth in Brazil’s Penal Code.

Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale.

 The Brazilian Constitution provides for equal rights to all individuals, regardless of sex, gender and/or sexual preference. However, specific discriminatory conducts are dealt with in the Criminal Code (Federal Decree No. 2.848/1940) and other Federal Laws. English translation available here. 

Under the Brazilian Criminal Code, it is illegal to terminate a pregnancy, as well as to kill a child during childbirth, or shortly thereafter. Under Article 124, it is a crime for someone to cause an abortion on themselves or to allow others to cause it, either of which carries a sentence of 1-3 years of imprisonment. Article 125 prohibits anyone from practicing an abortion on a pregnant woman without her consent and imposes a sentence of 3-10 years of imprisonment. Article 126 imposes a 1-4-year prison sentence to anyone who practice an abortion with pregnant woman’s consent.

In 2004, the Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) considered a claim brought by the National Trade Union of Health Workers and ANIS (Institute of Bioethics, Human Rights, and Gender) to determine whether terminating a pregnancy in which the fetus suffers from anencephaly (absence of major portion of the brain, skull, and scalp) violates the prohibition on abortion as set forth in Brazil’s Penal Code.

This case refers to a writ filed by the accused in order to not apply to his case Article 41 of Law 11.340/ 2006 (Maria da Penha Act). Article 41 states that the domestic crimes committed against women cannot be tried by the procedural rite of 9.099/1995 (Small Courts Act), which regulates the trial of petty offenses. The accused argued that his conduct did not fit into Article 41, and that applying this article would be unconstitutional for giving special treatment to women. The Supreme Court of Brazil denied the order and declared Article 41 constitutional.

The Supreme Federal Court of Brazil (STF) revoked the pretrial detention order issued against staff and patients of a clinic that was alleged to have been performing clandestine abortions. The 2^ND Panel of STF found that criminal laws against abortion were unconstitutional with respect to the case in hand, and the criminalization of voluntary termination of pregnancy during the first three months was incompatible with the protection of multiple fundamental rights of women. The decision set an important precedent for the sexual and reproductive rights of women in Brazil.

In this case, the 2^nd panel of the Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) issued a landmark ruling that pregnant women, mothers of children up to the age of 12, and mothers with disabled children accused of non-violent crimes should be permitted to await trial under house arrest rather than in detention. Justice Ricardo Lewandowski of the STF granted in this judgment habeas corpus ex officio so that women with children who had been arrested prior to this ruling and have not yet been placed under house arrest are entitled to the benefit.