BANDEIRA, E. M. O.; http://lattes.cnpq.br/7823449426786228; BANDEIRA, Even Monallisa de Oliveira.
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.
