A análise constitucional e hermenêutica do direito à vida e à liberdade de pensamento: a transfusão de sangue e o pensamento religioso das Testemunhas de Jeová

Abstract

This paper aims to analyze the conflict between the right to life and religious freedom in the case of the refusal of blood transfusion in Jehovah's Witnesses, based on the paradigm of the current Constitutional Hermeneutics, adopted in the courts, and thus seek to solve the problem about which right shall prevail, that of life or liberty. First, the evolution of freedom of religion and worship will be addressed in the current Magna Carta and other systems, citing freedom of belief, and the religious dogma of Jehovah's Witnesses will be specifically addressed in regard to blood. Later a conceptualization of the fundamental right to life, and its relation with other rights will be made. There will also be a remark about the conduct of the doctor in such a situation, discuss the issue of blood transfusion in Jehovah's Witnesses in minor or unconscious patients. It will also be debated about constitutional hermeneutics in the consideration of such conflict, by saying what is the collision of fundamental rights; see the evolution of the jurisprudential position of the Supreme Court on the subject; and talk about weighting techniques. And, finally, the case of Extraordinary Appeal 979742 will be analyzed. This study is based on article 5, caput, item VI of the Federal Constitution of 1988. The basis for the answer lies in these positive principles already mentioned, as well as in the Hermeneutics.