Autonomia reprodutiva e embrião criopreservado : pressupostos para a revogação de consentimento informado

Abstract

With social and biotechnological development new phenomena arise, requiring from law answers to conflicts and situations not before thought. In this context, the assisted reproduction (AR) technique is placed. Even though this technique arose 42 years ago, and, in particular, the freezing of embryos for 38 years, increasingly complex conflicts emerge regarding the use of this technology. Thus, when it is found that cases of dispute over the destination of cryopreserved embryo have been reported in the most varied countries (United Kingdom, Italy, Israel, Brazil, United States, etc.), resulting in different resolutions for these conflicts, the question arises whether in the Brazilian scenario it would be appropriate to revoke the informed consent for implantation in uterus of the cryopreserved embryo. To this end, it is proposed the hypothesis that it would be appropriate, in the Brazilian context, to revoke the consent, in view of the status of the cryopreserved embryo in the homeland order, as well as reproductive autonomy as a fundamental right of personality, basing the prerogative of the party who no longer wishes to follow with AR. To this end, the research followed the hypothetical deductive method of approach and used research in the right purchased, without using the method itself. Thus, the best of the homeland doctrine, as well as foreign, is examined to investigate in depth the proposed theme. As a result, the study initially verifies change caused by the value of human dignity in the legal order, using private institutes for the human person. After this finding, the work verifies the legal status of the cryopreserved embryo, as non-holder of dignity, in Brazilian law. Established these bases and understood that in the Brazilian system the embryo has no right to life, in the second moment of work, it seeks to sew these premises. Thus, it is understood what the rights of personality would be, and its importance from the entry of the dignity of the human person into the legal order. Informed consent is therefore perceived as an instrument allowing the provision of those rights, and by the special nature of personality rights, can be revoked at any time. This is done through the irradiation of fundamental rights in private relations, especially immediate theory. In particular, in the cases addressed, the irradiation of reproductive autonomy occurs a fundamental right of personality, and that, in cases of refusal by one of the parties to follow up with the AR, justifies the revocation of consent. The dissertation shows the necessary legal protection of existential rights and the freedom of each one to develop the life project that he desires within the legal order in which he is inserted.