Direito Civil - Aula 03 - Início da Personalidade - Nascituro - Art. 2º do Código Civil

Understanding Personality and Nasciturus in Civil Law

Introduction to Personality and Nasciturus

• The discussion focuses on the concept of personality as defined by civil law, specifically Article 2 of the Civil Code. It raises questions about when a person is considered to have rights and duties: at conception or only after birth?

Definition of Key Terms

• Person: Defined as a human being who is born alive; this includes the nascituro (unborn child). The nascituro is recognized as a being that has been conceived but is still in the womb.

• Personality: Refers to the capacity of an individual to acquire rights and obligations under civil law, as outlined in Article 1 of the Civil Code.

Legal Framework

• According to Article 2, civil personality begins at birth with life; however, it also acknowledges certain rights for the nascituro from conception. This duality raises further questions about the legal status of unborn children.

Theories on Beginning of Personality

Natalist Theory

• Advocates argue that personality only begins after birth with life, aligning with Article 2's stipulation. Thus, until birth, a nascituro cannot acquire rights or obligations under civil law.

• Under this theory, once born alive, an individual gains full legal personality and can engage in civil transactions such as receiving names or inheritances. Conversely, if not born alive (nati morti), they do not possess any rights.

Conditional Personality Theory

• This theory posits that while personality depends on being born alive (similar to natalist views), it suggests that certain rights are reserved for the nascituro pending their live birth. Thus, these rights are conditional upon successful delivery.

Conceptionalist Theory

Legal Recognition of the Rights of the Unborn

Key Legal Precedents and Theories

• The discussion highlights legal cases where unborn children (nascituro) have been recognized as having rights, such as receiving mandatory insurance from a deceased mother involved in a traffic accident.

• It references a conclusion from the first civil law conference by the Federal Council of Cesa, stating that protections under the law extend to stillborn children regarding personal rights like name, image, and burial.

• Some Brazilian states are now allowing stillborn children's names to be included on certificates known as "certidão de crianças nati mortas," reflecting evolving legal practices.

Application of Conceptionist Theory

• Using an example involving a child named João, it explains that according to conceptionist theory, he possesses civil personality and rights from conception, including prenatal care and potential damages if he is born lifeless.

• If João is born without life (nati morto), he retains certain rights such as name and burial but does not acquire material property rights.

Divergence in Legal Theories

• The transcript notes that there is no unanimous agreement among legal scholars; some support natalist theory while others advocate for conceptionist or conditional personality theories.

• Recent trends show an increase in decisions favoring conceptionist theory over natalist perspectives within Brazilian jurisprudence.

Summary of Civil Personality Laws

• Article 2 of the Civil Code states that civil personality begins at birth but acknowledges that unborn children have certain rights from conception.