Organ donation and the prevalence of the donor's will in the face of family conflict Renato Braz Mehanna Khamis, Júlio César Lellis

Abstract

Contextualization: This work will focus on whose will prevails regarding organ donation, whether that of the donor, when he expressly registers his will to donate or not, or whether that of his family has officially declared or not the desire to donate or not to donate. Problem: The problem arises from a legal gap, because although the provision on human biomaterial is regulated, there is no unanimity regarding the systematic exegesis between these same legal texts that cannot be found in both elements and circumstances of the normative type that ensure one or another favorable decision-making. Objectives: The objective is to analyze the divergences of the researched material in order to arrive at an adequate interpretation of the legal texts in force and valid in the legal system. Methods: To this end, we seek through heuristic methods of qualitative exploration under analysis of the review of inductive hypotheses, using legislation and bibliographies in scientific articles from the main internet platforms. Results: It turns out that through a proprietary analysis of the disposition of donable parts of the human body, the result is that it is understood that, as a rule, the expressly registered will of the donor during his lifetime must be respected, without, however, discarding, from a humanitarian perspective, the unanimous understanding that these legal texts converge when, in the absence of an express manifestation of the donor during his lifetime, it is the family who makes the decision about the donation of organs post mortem. Conclusion: In fact, the prevalence of the decision in the case of organ donation, on the one hand, returns to the issue of the legal security of social relations, which are based on the legal validity of conscious manifestations of will during his lifetime, guaranteeing rights and obligations; on the other hand, the right to life is also valued, as an option of altruism and solidarity, when it guarantees the family, subsidiarily, to decide on the donation after his lifetime when the donor did not express his will during his lifetime.