A colisão dos direitos fundamentais na recusa a tratamento médico por convicções religiosas.

Abstract

Still the fundamental rights and guarantees appearing as bastions of a democratic rule of Rights and be welcomed into the constitutional text, know that they do not enjoy absolute character. Once, before certain situations, one or some of these rights need to be mitigated at the expense of other. This occurs when one is facing a collision of fundamental rights. However, often there is no legal provision that presumes the situation and determine in advance which law should prevail. Therefore, the solution will be in charge of the jurisprudence, which should carry the weight of conflicting values to the case. At the poles of the conflict presented in this study are confronting each other, the right to religious freedom and the right to life, approved by the Federal Constitution as a fundamental and essential to human dignity. Considering that, supporters of some forms of religion do not accept, because of their faith, medical procedures involving blood transfusion, even if your life is in imminent danger. It is known, however, that this is the procedure by Consolidated Medical Sciences to save the patient's life, when it presents imminent risk of death due to a severe loss of blood tissue. It is questionable, given that, what are the criterion to resolve this collision, having as parameter the basic principles of a Constitutional State. The research therefore feels the need to poise the legal interests involved, through the principles of proportionality and reasonableness, in view of the need to avoid the complete failure of any of the rights in question. Thus, the present work aims to analyze, from the legal perspective, the most appropriate solution to be applied, when refusing medical treatment for religious convictions the legal life is in imminent danger, taking into account the rule of the maxim fundamental rights involved, coupled with its minimal restriction. To achieve these objectives, the research uses the method of deductive approach, and as a research technique, the theoretical, through literature, doctrinal survey, jurisprudential, and the legislation. Furthermore, the study has eminently explanatory because it aims to identify the factors that determine or contribute to reach the most beneficial solution of the collision under examination. Finally, it was concluded that even the Brazilian legal earning fundamental rights status entrenchment clause, in a situation of collision between them, one should be mitigated at the expense of another. But before, it is essential to poise the rights involved, in order to coordinate and combine the legal interests protected, so that we can reach a solution to the conflict with the maximum realization of the rights in conflict and at the same time, with its minimal restriction. Making it essential, therefore, the study of constitutional hermeneutics involved and the constitutional principles of a Democratic State.