Gestação de substituição onerosa no Brasil: sua conformidade com o ordenamento jurídico brasileiro

Abstract

This work investigates whether the commercial surrogate motherhood, popularly known as surrogacy, is validly criminalized, or even prohibited by Brazilian civil or administrative law, or whether such prohibition is provided by the legal system on exclusively moral basis. It suggests that an autonomous woman cannot be prevented from offering the service of a surrogate mother for monetary compensation, using her body as a work tool in a liberal democracy that values individual freedom, especially the right to self-determination, a corollary of the person's own human dignity. For that, as a methodology, it proceeds to a survey and analysis of national and foreign bibliography on structuring themes of the study, such as autonomy, and themes directly related to it, such as arguments against the legalization of the technique and its different legal approaches. Then, the Brazilian legislation and scholar works related to commercial surrogacy were widely examined, aiming to find potential norms about the technique, mainly prohibiting or criminalizing it. The work verifies, after all, that there is no legitimate prohibition, much less legal criminalization that covers the commercial surrogacy, or constitutional justification to eventually criminalize it, in a way that it can be concluded that the arrangement is possible and adequate in the Brazilian legal system, and should, therefore, be regulated.