O testamento vital frente à proteção constitucional do direito à vida.

Abstract

This research has as its theme the applicability of the living will in the face of the constitutional protection of the right to life, as a way of ensuring the right to human dignity. It was analyzed whether the autonomy of will of the person in a terminal state can be realized before the constitutional protection of the right to life, with the aim of ensuring the right to the dignity of the human person. To achieve the proposed objective, the work was divided into three chapters. In the first, the role of fundamental rights and constitutional principles over other rules of the Brazilian legal system was analyzed in general. The study of the constitutionally guaranteed principles, the autonomy of will and the dignity of the human person, as well as the right to life and the right to a dignified death have been studied. In the second, the study on the living will began, addressing its concept, appearance, and dissimilarity with civil wills. Its relationship with the advance directives of will was investigated, as well as, the responsibility of the medical professional with the institute in the face of its questionable provisions on euthanasia, dysthanasia and orthothanasia. It was also verified the applicability of Resolution nº 1995/2012 of the Federal Council of Medicine before the hearing of a specific law on the subject. In the third chapter, we sought to analyze the formal requirements and limits of the provisions of the living will, as well as the approach of the institute when taken to the Judiciary, analyzing, finally, its direct connection with the principle of human dignity . In this work, the deductive method of approach was used, through the technique of bibliographic research in doctrine and scientific articles within the proposed theme, whereas, in the last chapter, the technique of documentary research and analysis of jurisprudence from Brazilian courts was used. Through this study, it was found that the constitutional principle of the dignity of the human person has a direct and predominant application over the constitutional protection of the right to life, considering that this is a right and not a duty, therefore, the judiciary is based also in the autonomy of the will to determine that the capable person's desire is assured.