Os limites da intervenção estatal no planejamento familiar: a reprodução humana assistida e a efetividade dos direitos fundamentais das famílias homoafetivas

Abstract

This article examines the limits of State action in family planning for same-sex families, focusing on assisted human reproduction and the absence of specific federal legislation governing the subject in Brazil. The study is based on the premise that family planning is a fundamental right guaranteed by the 1988 Federal Constitution, closely linked to the principles of human dignity, freedom, equality, and reproductive autonomy. Its objective is to determine whether the predominance of administrative regulations governing assisted reproduction, particularly those issued by the Federal Council of Medicine, combined with legislative omission, constitutes an indirect form of State intervention in the exercise of this fundamental right. To achieve this objective, the study adopts a deductive approach based on bibliographical and documentary research, analyzing the Federal Constitution, statutory legislation, case law of the Federal Supreme Court and the Superior Court of Justice, regulations issued by the Federal Council of Medicine and the National Council of Justice, as well as specialized legal scholarship. The findings indicate that, although judicial developments have ensured the recognition of same-sex families as protected family entities and strengthened reproductive rights, the absence of comprehensive legislation leaves assisted human reproduction primarily regulated by administrative rules. It is concluded that this legislative gap undermines legal certainty and the full effectiveness of family planning, producing more significant impacts on same-sex families and demonstrating the need for comprehensive legislation consistent with the constitutional principles of human dignity, substantive equality, reproductive autonomy, and family pluralism.