Text by Ana Elizabeth Lapa Wanderley Cavalcanti
Translation by Guilherme Rodrigues da Silva
The right to family planning allows a person to receive adequate information and technical support to decide on the formation of their family, procreation and contraceptive methods. The theme interacts with concepts such as dignity of the human person, human rights, right to health and well-being, in addition to the realization of the right to sexuality, reproductive rights and autonomy of the will, demonstrating itself as an issue directly related to the study of biolaw and bioethics.
It is noteworthy that the Universal Declaration of Human Rights of 1948, in its Article 12, maintains that: “No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to an attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks” (emphasis of ours). Thus, it can be argued that every person has the right and autonomy in relation to the formation of their family.
It is a fact that procreation is not an essential element for the formation of a family, but it is necessary to ensure to those who want to have children, the right to family education through procreation is natural or artificial, in a medically assisted way, as well as the right not to procreate, for those who do not intend to have them, as a form of respect, also, for the right to intimacy and dignity of the person.
Therefore, it is important to understand that the right to family planning is indeed a human right, a fundamental right and a right of personality, and its exercise can be decisive for an individual to achieve his well-being and healthy quality of life.
However, in a networked and computerized society, such as the one presented today, information is essential for citizens to make their decisions consciously. Thus, when it comes to the right to family planning, it is necessary for the State to adequately offer, through effective public policies, information so that the individual can decide on methods of conception and contraception, as well as the type of family he intends to constitute. However, it is also necessary to say that family planning should not be confused with birth control, it is not up to the State to decide whether or not the individual can have children, how many children he will have and so on.
Thus, it is essential that the decisions made by a person about having or not having children, for example, are free, thoughtful, conscious and decided with autonomy, after all, the family is a means for the pursuit of happiness, personal fulfillment and well-being, in addition to the formation of the subject’s personality.
In relation to the Brazilian legislation on the subject, it is important to highlight the Federal Constitution of 1988, which deals with it in its Article 226, Paragraph 7:
Paragraph 7. Based on the principles of human dignity and responsible parenthood, family planning is a free choice of the couple, it being within the competence of the State to provide educational and scientific resources for the exercise of this right, any coercion by official or private institutions being forbidden. (emphasis added)
On the other hand, Article 1.565 of the Civil Code determines in its Paragraph 2 that:
Paragraph 2 Family planning is the free decision of the couple, and it is up to the State to provide educational and financial resources for the exercise of this right, prohibiting any type of coercion by private or public institutions. (emphasis added)
And, in addition to the Federal Constitution and the Civil Code, the issue of family planning is also a subject of law, it is the Family Planning Law n.º 9.263/1993:
Article 1 Family planning is the right of every citizen, subject to the provisions of this Law.
Article 2 For the purposes of this Law, family planning is understood as the set of actions of regulation of fertility that guarantees equal rights of constitution, limitation or increase of offspring by the woman, by the man or by the couple.
It is verified, therefore, that Brazilian legislation clearly recognizes the right to family planning, leaving to the State only the condition of educator and facilitator for the exercise of this right, as a way of reaffirming the right to family planning as an individual and fundamental right.
However, although the aforementioned articles expressly affirm the right to family planning, they also give the view that planning, when married, is a decision of the couple. In this sense, it is necessary to analyze the meaning of this command currently.
If the right to have or not have children, exercised through the right to family planning, is considered a fundamental right, which as has been said before, considered as a right to the development of one’s own personality, how to understand today that the decision should be of the couple?
This issue was much discussed for years, a fact that is understood, since Law n.º 9.263/1996 determined that if there was no consent of one of the spouses it was not possible to perform surgical sterilization as a mechanism of contraception (Article 10, Paragraph 5).
Fortunately, this posture of linking the surgical sterilization of both men and women, when married, to the consent of the spouse, was repealed by Law n.º 14.443/2022 which recognized the autonomy of the individual will of the person who intends or does not intend to have children, not linking this will to the authorization of his spouse.
The aforementioned Law n.º 14.443/2022, made important changes to the 1996 Law, in addition to the issue of the spouse’s authorization, recognized that sterilization surgery of the woman during childbirth is possible, provided that the conditions provided for in the law and the medical conditions are observed. And it also allowed the surgery to be performed on people over 21 years of age and not over 25 as determined by the previous law.
Finally, it is also important to point out that the right to family planning is an integral part of the right to health and as such must be guaranteed and offered in the Unified Health System (Article 3) which, in turn, must ensure the guidance to citizens by preventive and educational actions and the guarantee of equal access to information, means, methods and techniques available for the regulation of fertility.
Therefore, it is perceived that it is the first objective of the law in comment, that people can receive appropriate information and actions regarding methods of conception and contraception as a way to plan with responsibility and autonomy their family constitution. This is not a law that does birth control, but rather that ensures access to techniques and information for procreation, if that is the desire of the individual.
In conclusion, family planning is a very important right to ensure citizens the exercise of their autonomy and that they can consciously define whether or not they want to have children, when to have them, having information on techniques of conception and contraception, control of sexually transmitted diseases, sterilization, control and prevention of cancer, with all the necessary assistance provided by the State to achieve its objectives, as well as the legal amendment, which came into force now in March 2023, arising from Law n.º 14.443 of 2022, proved to be an advance on the subject, but there is still much to be done. It is important that we have adequate public policies for the realization of this right.
