Superior Court in Brazil Affirms Right to Cannabis Home Grow

On Tuesday, Brazil became the newest country to decide that sick people can cultivate cannabis and extract its components into oil to treat chronic pain.

The case is significant domestically. Currently the law prevents domestic cultivation of all kinds. Cannabis-based medicines that are dispensed legally must all be imported, although Brazil is currently wrestling with how to proceed with further domestic reform.

As a result of this decision, the Brazilian Health Ministry must now set up regulations to guide the same. This is exactly what the judges intended. Judge Rogério Schietti said that the court acted because of the failure of the government to take a scientific position on the issue. “The discourse against this possibility is moralistic. It often has a religious nature, based on dogmas, on false truths, stigmas,” he said. “Let us stop this prejudice, this moralism that delays the development of this issue at the legislative, and many times clouds the minds of Brazilian judges.”

What he did not add is that this is an issue which has clouded the minds of both legislators and judges, not only in Brazil but other countries too. The issue of patient home grow is controversial everywhere. Yet it is this right that has moved cannabis reform of a federal kind forward in multiple countries, starting with Canada.

In Germany, for example, the right to grow your own cannabis was removed from patients in 2017 almost as soon as it was granted via court decision after the legalization of medical use by the legislature. The subsequent failure of the insurers to cover sick people—with a refusal rate that some analysts are putting at about 50% of all claims—makes such legislative changes vital as the country considers further reform.

Yet Germany is far from the only country where similar legal challenges are bubbling.

Why Home Grow is Seen as Seditious

One of the largest opponents to home grow is often the burgeoning “legal” cannabis industry. There are many on the commercial side of the discussion, including those in the strictly medical vertical, who stand adamantly opposed to home grow. Their arguments range from lack of standards to the trickle of such product into the black market and or the “children.”

While none of these situations are ideal, the abrogation of rights of particularly chronically ill people has so far been the answer to the same in too many jurisdictions.

That said, as countries in Europe, in particular, wrestle with how to implement recreational reform, this is now becoming a relatively safe half step. See Malta, Italy, and Luxembourg. It is also a burning question that so far, at least, has not been answered by the recreational reform debate now underway in Germany.

From an industry point of view, however, human rights too often take a back seat to profits. This is why commercial “rights” are trumping constitutional ones. This is why the right of individuals to grow their own—for either medical or recreational use—remains directly opposed by what is termed “the industry lobby.” This is also why home cultivation of plants, even for medical use, remains a criminal offense in many otherwise legalizing countries.

It is also why it is patients, not the industry, who are having to challenge such laws on a case-by-case basis. That process is not a fun experience. Most people do not want to go down in history as “cannabis Gandi” for trying to address the dire consequences of being both sick and poor. Yet this is precisely the situation every country which refuses patient home grow now puts their chronically ill populace in.

Changing this often brutal reality is overdue—and on an international level.

Perhaps Germany, the next country to face this on a federal basis, will apply the same philosophy, finally, to the topic. After all, as the last government said to then-President Donald Trump when he tried to corner the market on a German-made vaccine for COVID, “There are limits to capitalism.”

In Brazil, the Superior Court of Justice has just reaffirmed that principle.