Elective cesarean section in the SUS and the principles of equality and freedom of choice: examination of the constitutionality of § 8 of art. 8 of the ECA Daniel Ferreira Limaverde, Luciano Pereira de Souza, Renato Braz Mehanna Khamis

Abstract

This study aims to analyze the constitutionality of the normative meaning of §8, article 8, of the Statute of Children and Adolescents, whose wording gives rise to an interpretation according to which elective cesarean sections would be legally prohibited within the scope of the Unified Health System, although widely performed in the supplementary health system. Without intending to confront the national policy of discouraging elective cesarean sections and the WHO recommendations in favor of indicating natural childbirth when there is no indication for cesarean sections, the study analyzes the constitutional principles of equality and freedom of choice in light of three possible interpretations of the legal provision under examination, in an attempt to identify legal-constitutional limits to the freedom of choice of pregnant women who use the Unified Health System for childbirth care because they do not have the financial means to pay for it through the private system, either by paying full price for the obstetric medical-hospital care service or by means of a Private Health Care Plan contract. Using bibliographic and documentary research, we sought to answer the following question: is the interpretation of paragraph 8 of article 8 of the ECA, which absolutely prohibits cesarean sections within the scope of the SUS, in harmony with the constitutional principles of equality and freedom of choice of pregnant women? Adopting the hypothetical-deductive method, it is concluded that the interpretation that leads to the absolute prohibition of elective cesarean sections within the scope of the SUS is unconstitutional.