Testamento vital: a proteção constitucional do sujeito de direito frente à terminalidade da vida

Abstract

The living will, instrument of relatively recent approach in Brazil, brought up bioethical and legal discussions on the termination of life. With the advancement of the medical sciences, alienated from human responsibility, arises the discipline of bioethics, which, guided by principles, such as that of autonomy, was designed to regulate the medical conduct and the doctor-patient relationship. In the face of this new relationship paradigm, there are issues involved in the autonomy to die, such as euthanasia, dysthanasia, misthanasia and assisted suicide. The encounter between the dilemmas of medical-therapeutic limitation, informed consent, palliative care, orthothanasia and living will reflects the patient‟s self-determination power in life terminality in favor of dignity. The consecration of the dignity of the human person as the foundation of the Democratic State Law has taken placed from the post-war context, marked by the consolidation of human rights, the post-positivism crisis, and the development of neo-constitutionalism. The 1998‟s Federal Constitution, therefore, reflects the material supremacy of the rights and the opening of the constitutional text for principles of high axiological charge, so that constitutional hermeneutics is based mainly on the dignity of the human person, a principle related with that of private autonomy. In view of this context and the lack of relevant legislation, it is necessary to analyze the constitutional protection of individual rights against the life terminality, ascertaining, from a case study involving reports of terminal situations, the possibility of endorsing the right to a dignified death in the terminal situations in brazil‟s legal order. The present research was structured with the inductive, monographic, descriptive, comparative and bibliographic methods.