A autonomia da vontade na doação de órgãos e tecidos post mortem: uma análise à luz do decreto nº 9.175/2017

Abstract

The Law of Transplants of 1997 regulates post mortem organ donation. Said legal command was target to heavy criticism, for its scope served so that a system of consented donation was adopted in Brazil. That is to say, free and informed consent is required in order to initiate the process of organs, tissue and human body parts donation. The consented donation system violates the donor's fundamental rights, for it disregards eventual manifestation of will regarding donation, transferring this extremely personal right of decision (in favor or against) to others. After a time gap of 20 years, there was hope that Decree n. 9.175/2017 would solve the legal failure. However, what could be seen was a ratification of such legal misguidance, for said Decree also violated post mortem donor's autonomy of will, enhancing the need to free and informed consent of their family in order to authorize the process of organs, tissue and human body parts donation.