Applicability of personal data protection to the unborn child

Abstract

This paper primarily examines the application of Brazil’s General Data Protection Law—LGPD (Law No. 13,709/2018)—to the nascituro (unborn child) in the context of technological advances, especially in healthcare and biomedicine, which have led to exponential growth in the collection and processing of data from the earliest stages of human development. The research adopts a qualitative, documentary approach, complemented by a review of constitutional foundations,
court decisions, and legal interpretations issued by Brazil’s higher courts. The findings indicate that, although the LGPD does not expressly mention the nascituro, its definition of an identified or identifiable natural person supports classifying the nascituro as a rights holder. This conclusion is further reinforced by analysis of the Federal Constitution and the Civil Code, which recognize legal protection for the nascituro from conception. In this vein, the case law of the Superior Court of Justice (STJ) corroborates this understanding by consolidating the conceptionist theory and recognizing the nascituro’s patrimonial and existential rights. Moreover, in ADI 5545, the Supreme Federal Court (STF) underscored the sensitive nature of genetic data—even that pertaining to unborn children—requiring prior consent and security measures for its processing. Therefore, it is concluded that the nascituro’s personal and sensitive data should be safeguarded under the LGPD, thereby preserving dignity and integrity from the very
beginning of life.