Forced sterilization, Legal Capacity and the Janaina Case: “you don’t help a bird to fly by holding onto its wings”

Abstract

The enforcement of fundamental rights constitutes a central challenge in the contemporaneity, which deepens, in the case of people who are more vulnerable (susceptible or even violated), as mental health patients. This article deals with a hard case, the forced sterilization of women. The study analysis the sentence given in the Case n. 1001521-57.2017.8.26.0360, from the 2nd. Vara Cível de Mococa, São Paulo, which upheld the request for forced sterilization of Janaína, and the judgment of São Paulo´s Court of Justice (Tribunal de Justiça do Estado de São Paulo) which has allowed the appeal and set aside the original sentence. The study purpose is to reveal the grounds used in the sentence to justify the measure. Therefore, it’s necessary to evaluate the internal coherence of the decision and to examine the legal procedure followed, in order to confront them in a critical perspective, from the point of view of the Constitution, and especially the promotion of the human being. Competence to decide about health care, the consent for sterilization. In the same way, the contradictions in the sentence are explored and discussed to reveal the real grounds that led to sterilization of Janaina.