Consenso afirmativo à luz da doação de órgãos : uma escolha concernente ao próprio doador.

Abstract

The present work addresses the issue of organ and tissue donation, focusing on Brazilian legislation regarding the act of release for the performance of the procedure of organs and tissues of post mortem people, aiming to demonstrate that the affirmative consensus should prevail regarding the donation of organs, tissues and parts of the human body regardless of post mortem authorization from a spouse or relative. In this context, the problem to be faced is to analyze whether or not the affirmative consensus regarding the freedom of choice guaranteed to a living civilian by the Federal Constitution should be superimposed when it comes to organ donation, or the will of the family overrides the deceased's own will, even if his/her will is recorded in life. To accomplish this task, the deductive method is used, since the research will start from general premises, in order to result in a conclusion about the affirmative consensus regarding the post mortem authorization of a spouse or relative in the donation of organs. The research technique used is bibliographic, through direct and indirect documentation, given that the research will be based on the analysis of literary works that cover the subject of study, on different platforms. Finally, it can be said that legislative reforms are necessary in Law 9.434/1997, which had provisions amended by Law No. 10.211/2001, in order to respect the fundamental rights of the human person, introducing only that the manifestation of will of the donor, in life, when duly documented, and in the absence of manifestation, the family will be responsible for such decision, in line with the principle of affirmative consensus.