Legal discipline of after death organ donation: a bioethical-legal analysis of the condition of submission to authorization by the family ratified by Decree 9.175/2017

Abstract

This research starts from the need to investigate the legal motivations that justified the non-recognition of the validity of the donor's will for the purpose of donating their organs. The research aims to demonstrate the measure of violation of the donor's autonomy, when the Brazilian State ratified the need for family authorization in the donation of organs through Decree 9.175/2017, making this presupposition an essential condition for the act of donation to be performed happen. For this, the legislative regulation that falls on organ donation is reviewed, also from concepts and fundamentals related to donation, in addition to proposing a return to the bases of bioethics, thus demonstrating the principle of autonomy and, therefore, the models of autonomy, in order to promote, in a deep way, a critical analysis on the subject. Finally, there is a legislative, legal and social movement to change the vilifying conception that was recently ratified in order to guarantee the possibility of respecting autonomy through the adoption of an appropriate regulation. As a methodological path, the hypothetical-deductive method and the use of a specialized theoretical framework were adopted.