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SUMMARY: 1. Introduction 2. Rights of personality and the physical protection: Principle of Unavailability of the Human Body, 3. Disposition of the body or part of his life in Post-Mortem or Second Doctrinal Perspective, 4. Regulation of transplantation: Articles 13 and 14 of CC-2002 and Law 9434/1997, 5. Final considerations 6. References
1. INTRODUCTION
We present an explanation to give readers a minimum knowledge of the rights of personality, specifically regarding the right to physical integrity and donation of organs as an exception to the principle of availability of the human body.
This article is divided basically into three parts. In principle, see the unavailability of the human body, based on certain characteristics. Subsequent analysis in general, through learned doctrines, we will give as the arrangement of the body or part thereof (except) in life or after death and what were the changes occurring in the social environment. Finally, we show clearly the legislation governing the matter: the donation of organs.
This article, as you readers will see, requires a general explanation and a simple language to be assimilated.
2. RIGHTS OF PERSONALITY AND PROTECT THE PHYSICAL INTEGRITY: PRINCIPLE unavailability of the human body.
In short, notice in this context the aspect of personality rights in relation to physical integrity.
For integrity, the right covers the body and to including "their tissues, organs and parts which are separable, and the right to the body" (Amaral, 2006, p.263), note that ensures not only the life and all of human body, as well as protecting the entire body of the corpse.
In the same vein, mention Calmon Guilherme Nogueira da Gama:
"The legal and physical integrity is the projection of the principle of human dignity on the body of the subject and the text itself constitutional, rules can be verified that forbid the practice of torture, inhuman or degrading treatment, the application of cruel" (Gama, 2006, p.34)
It is known that human life demands of "especialíssima protection by imposing a revulsion against any risk to damage or destroy its integrity" (FARIAS; ROSENVALD, 2006, p.118) that a group of men, rationally, imposed limits on government and to other men through the development of standards that protect the rights of the citizen, that "pre-existed the law" (Tepedino, 2004, p.33).
It is important to mention that the individual who violates the physical integrity of others, violates the constitutional norm, in consequence of personal injury crime committed where there is "any adverse change produced in the body of another, anatomical or functional, local or general in nature physical (...) whatever the means employed to produce it "(MIRABETTE, 2001, p.105)
The physical integrity as a set of "attributes of the human person, considered as the object of protection by the law" (Tepedino, 2004, p.34) has some features to highlight, such as the off-the unavailability the absolute character, the imprescritibilidade, the intransmissibilidade and, finally, the irrenunciabilidade and unseizability.
Limit only the four characteristics that fit the context of the research. For unavailability "derives from the holder to have his opportunity, making them too attached and incontrovertible" (Tepedino, 2004, p.34).
So consider Pablo Stolze Gagliano and Rodolfo Son Pamplona, showing that "the body as physical projection of human individuality is inalienable" (Gagliano, SON, 2007, p.157)
Remains a doubt. If the human body, either in life and after death, carries the protection of physical integrity and character as the unavailability and also, unremitting and attached, as is allowed the donation of organs, and disposition of the body or its parts?
3. PROVISION OF THE BODY OR PART OF YOUR LIFE OR IN POST-MORTEM BY OUTLOOK DOCTRINES
It is clear that the donation of organs has been recurring theme in the Academic Scientific is a desire to bring tremendous benefits to humans, either by legal and ethical issues involved. The matter is of such complexity. For this reason, we confine ourselves to say that the doctrine.
Cited by Paula Fernanda Diniz and Gomes Ingrith Abrahão, as Habermas said:
"The progress of biological sciences and the development of biotechnology not only expand the possibilities of action known, but also enable a new type of intervention [...]. As far as the human body is understood in this field of intervention, the distinction between phenomenological of Helmuth Plessner 'is a living body' (Leib sein) and 'having a body' (Koper haben) acquires an impressive today, the border between nature from 'us' and organic arrangement than' we 'ourselves "(quoted by Habermas, Diniz; Abrahão, 2007, p.131)
Habermas, in a positive perspective was impressed when they tried to have on the progress of biological sciences and the changes occurring on the intervention of the human body. Down, so the distinction between "being" and "have".
Paula Martinho da Silva said by Diniz and Gomes Ingrith Abrahão, says that advances in biological sciences related to the exercise of medicine are friendly to man,
"When we speak of transplantation of organs and tissues of human origin. Today, the human body is extremely important and all its elements become synonymous with hope and solidarity. It is day by day more usable by others, more able to contribute to that body of another can it, or many times save themselves. Not limited to merely a therapeutic intervention (at least in the eyes of the donor) transplants reflect important ethical issues surrounding the testing of the human body's own policy decisions on health, and a wider field, puts it in fundamental questions around the principle of human dignity "(Paula Martinho da Silva, cited by, Diniz; Abrahão, 2007, p.131) Gn
For these issues the author is above wives that is the first step to claim that can allow the disposal of the body or part of it.
Amaral believes that the transplant is the removal of an organ, tissue or part of the human body, living or dead, and their use, for therapeutic purposes in humans "(Amaral, 2006, p.265). The transplantation treated here is called homogeneous transplant that is performed "between beings of the same species" (Keys, 1994, p. 215).
We know that the donation of the body or part of it directly hurts the principle of availability, among others. However, for ethical, political and even legal, are admitted free provisions of "the human body, living or dead, is (...) not cause prejudice to the holder and in an order aimed at therapeutic, scientific or altruistic" (FARIAS; ROSENVALD, 2006, p.119)
In short, we have two types of rules: in life or post-mortem. The donation in life, "can be freely made by the holder, by its decision only" (FARIAS; ROSENVALD, 2006, p.119). The provision is not permitted for any purpose and for anyone who wants to perform the donation. According Francisco Amaral, is legal only made the donation by "person legally capable, free (...), (...) for transplant or therapeutic purposes" (Amaral, 2006, p.264).
In case of death "the withdrawal of tissue, organ or part of the human body, (...) should be preceded by diagnosis of brain death, observed and recorded in accordance with the law" (Amaral, 2006, p.264).
In both methods are found essential to the owner will want possession of their bodies. The waiver may be amended at any time in life and in the case of death by their relatives.
4. REGULATION OF TRANSPLANTATION: ARTICLES 13 AND 14 OF CC-2002 AND LAW 9434/1997
After, found the doctrine, it is necessary to bring some of the standard checks on the devices in order to complete this survey.
Civil Code in the part that deals with the rights of personality in kind, there is Article 13 to 15 that deal the right to integrity psychophysics "(GAMA, 2006, p.33). Specifically on the physical integrity, have the articles 13 and 14 as references. Article 13 regulates the DC as follows.
"Except for medical requirement, it closed the act of disposal of the body itself, when imported permanent reduction of physical integrity, or contrary to the morals.
"Sole paragraph. In the case the act provided for in this article is for transplants, as established by special law "(DC, 2002)
Article 14 provides that the CC is "valid, with the objective scientific or altruistic, the free disposal of the body, in whole or in part to after death" (CC 2002). As seen, "can only answer the scientific or altruistic purposes, he turned to economic exploitation" (GAMA, 2006, p.34)
The special law is the law 9434/1997. Summarized some of his articles that fit directly with the theme. Otherwise, see:
"Art 9. It allowed the person legally able to have free tissues, organs or parts of the living body for transplantation or therapy. § 3. Is only allowed the donation mentioned in this article when it is double organs, parts of organs, tissues or body parts whose removal does not prevent the body of the donor to continue living without risk to its integrity and does not represent severe impairment of their ability vital and mental health and does not cause unacceptable distortion or mutilation, and meets a need therapy proved indispensable to the person receiving. § 4. The donor must authorize, preferably in writing and before witnesses, specifically the tissue, organ or part of the body object of the withdrawal. § 5. The donation may be revoked by the donor or the legal guardians at any time before its implementation "
5. CONCLUSION
We conclude with this research that to the donation of organs or part thereof, either in life or in death, it is a controversial subject both in academia as in the social environment, come to pass in the legal framework.
We note that to be made the donation of organs by a person, we have several requirements to be met. We observed that addition of the devices of the law is essential to the donor's statement of intent, which stems from the private autonomy.
Advances under the Biological Sciences and of Medicine including, increasingly, is bringing benefits to humans. Regarding the donation of organs it is the legal basis.
Certain is that, in principle, what applies is the unavailability of the human body, it protects the rights of the person's physical integrity. However, the exceptions (organ donation) becomes necessary, therefore, extremely important to the human body. Act that shows the symbol of solidarity and hope. Act that will contribute to many of the others can sometimes stay alive. Besides the brotherly love, there is no such nobility in this gesture.
This article was translated by an automatic translation system, and was therefore not reviewed by people.