A (ir)responsabilidade civil por dano moral e/ou material nos casos de declaração de interrupção da gravidez sob a perspectiva do princípio constitucional da solidariedade.

Abstract

The main objective of this dissertation is to verify if it is possible, based on the constitutional principle of solidarity as a legal duty, to sue for moral and/or material damage a private individual who, aware of the pregnant woman's decision to terminate her pregnancy, does not act towards the preservation of the lives involved, namely: the life of the mother and the life of the embryo/fetus. Thus, it is intended to answer the following question: is it possible to hold a private individual morally and legally responsible for and/or material damage in the case described above based on the constitutional principle of solidarity? In order to answer the proposed question, the work was divided into three chapters. Firstly the analysis of state models that have been consolidated over time, the text studies the theory of the constitutionalization of private law. Moreover, some historical notes on the constitutional principle of solidarity are presented in this chapter, as well as its contemporary view, making it clear that this principle is a legal duty, which must be observed by all. In the second chapter the right to life is analyzed. In this stage, the conceptual issues about the said legal asset; the various theories that aim to establish the moment when human life begins; and, finally, the effectiveness of fundamental rights in inter-agency relations, more specifically the need to protect the right to life of individuals are analyzed. In the third and last chapter the work responds, more directly, to the proposed problem. Thus, the historical and conceptual assumptions about civil liability are analyzed and, later, based on the constitutionalization of private law and on the constitutional principle of solidarity, the contemporary notion of this institute is established. At the end of the chapter, the research offers arguments to ascertain whether it is possible, or not, to hold responsible for moral and/or material damage the private individual who, aware of the facts, overlooks the preservation of lives in cases of declaration of termination of pregnancy, therefore, confirming one of the hypotheses raised in the research. Without pretension to exhaust the subject in question, it is concluded that it is possible for an individual to be civilly liable for moral and/or material damage, if he or she is aware of the decision of the pregnant woman to terminate her pregnancy, and does not act to preserve the lives involved, especially because the constitutional principle of solidarity creates a legal duty among people and also because the right to life has special protection. This research uses a bibliographic review, using indirect documentation as research technique, and the deductive approach, as methodology. With regard to the method of procedure, the work uses the analytical and historical-critical methods.