O NASCIMENTO DO SUJEITO DE DIREITO

ANÁLISE DO CARÁTER REFLEXO DA PROTEÇÃO CONFERIDA AO NASCITURO NO ORDENAMENTO JURÍDICO

Abstract

This article revisits the theories concerning the moment at which a natural person acquires legal personality, focusing on legal figures that precede such acquisition: those that hold an expectation of it, such as the unborn child and the eventual offspring, and those that are known not to acquire it, namely the stillborn and the aborted fetus. By contrasting these categories, the study exposes inconsistencies in their legal treatment within Brazilian doctrine and case law, particularly regarding the attribution of personality rights to entities that lack legal personality. It is argued that the protection afforded to the unborn child and the stillborn does not entail recognition of legal subjectivity, but rather constitutes reflexive protection of the legal sphere of their parents and of third parties who have established affective bonds with them. Accordingly, the article concludes that maintaining birth with life as the foundational criterion for legal personality, as set forth in Article 2 of the Brazilian Civil Code, represents the most systematic and coherent interpretative solution, aligning the analysis with the natalist theory.