As técnicas biomédicas - a vida embrionária e o patrimônio genético humano - à luz da regra da proporcionalidade penal

Abstract

Genetics develops rapidly, with emphasis on genes and cells manipulation, facilitated by assisted reproduction. Besides its benefits (or expectations), new risks are added, because it deals with experimental techniques. In order to control such activities, an appeal is made to Criminal Law, which in order to control abuse or excess, makes use of the proportionality theory, through its basic elements, such as need, adequacy and strict proportionality. While applying this rule, the main point is the tutelage of legally protected rights, among which, human life should be pointed out, whose protection, starting from fecundation, seems to be more reasonable in view of the current scientific trends. From the human dignity concept, new approaches emerge, such as genetic integrity. Starting from life protection concept, the judgement of Criminal Law requirement is complemented by subsidiary and fragmentary demands. While adjusting the situation to the norm, an analysis is made on the suitability of the norm to avoid infringements, as well as its advantages and disadvantages before impunity. While connecting such judgements with scientific research, they admit the Criminal Law preventive action, imposed by the importance of such rights, as well as by the irreversibility and immeasurable extent of damage therefrom, as well as the difficulty of proving the causality link. Strict proportionality concerns with justice of the penalty to be imposed to the tort or delict, taking advantage of comparisons among the various categories, of subsidies taken from practise