THE APPLICATION OF THE EXCULPATORY OF THE ART. 128, II, OF THE CRIMINAL CODE IN THE CASES OF ANENCEPHALY: EXCEPTIONAL PREVALENCE OF THE HUMAN DIGNITY OVER THE RIGHT TO LIFE

Assuming that the anencephalic fetus is a living being, despite the disease, it is assumed the application of analogy in bonam partem, with the sentimental abortion, when interrupted the pregnancy, as the art. 128, II, of the Criminal Code was welcomed by the new constitutional order, to protect the dignity of the parent, considered prevailing over the life in the womb, through the technique of balancing of constitutional values, since not even the right to life is absolute. Thus, ubi eadem ratio, ibi idem jus, since most pregnant women experience unenforceable distress which is incompatible with their dignity at the prospect of impossibility of an outside the uterus development.