A DOAÇÃO DE ÓRGÃOS POST MORTEM: O DIÁLOGO DA LEI ESPECIAL E DOS DIREITOS DA PERSONALIDADE NO TOCANTE A AUTONOMIA DA VONTADE SOB A LUZ DA BIOÉTICA E DA DIGNIDADE DA PESSOA HUMANA.

Abstract

It this paper to analyze the apparent conflict of rules in the Brazilian legal system that has in the donation of organs, tissues and body parts postmortem. These standards refer to the Brazilian Civil Code, in particular personality rights and the law n º 9434/97 specifically provides that this theme. The apparent conflict arises from the autonomy of the donor in life to manifest positively about donating organs, tissues and body parts, in accordance with the order of the need for tort and family permission to carry out the removal and transplantation of such organs accordance with special legislation which has on this, regardless of the wishes of the donor. Starting from the historical aspect, we analyze the current and classical ethics, public and private, as well as the human dignity, fundamental rights and bioethics and its principles. Furthermore, we analyze the donation contract as legal transaction, acts inter vivos and causa mortis, its formation and its effects. In particular, we analyze the historical evolution of the special law (9434/97) which deals with the donation of organs, tissues and body parts, as well as personality rights entered into the civil code in force. To the conclusion that the conflict is only apparent standards, we use the legal hermeneutics and his classic system of conflict resolution, personality rights and bioethical principles, as well as the statements from the days of civil promovidospelo Studies Center judicial - CEJ - Council of the Federal Court - CJF, who directs the legal community when interpreting civil law.