A (im) possibilidade de recusa à tratamento médico com uso de sangue por crianças e adolescentes à luz de uma perspectiva civil-constitucional

Abstract

This paper analyzes the legal possibility of refusing medical treatment using blood by children and adolescents. The hypothesis is that the Brazilian legal system prohibits the exercise of this right by minors. From a civil-constitutional perspective, an incursion into Brazilian law is made. Therefore, the hypothetical-deductive method is used. The philosophical hermeneutic and historical sociological methods are also chosen. Regarding the legal method, the hermeneutic or the theory of interpretation and legal argumentation are privileged. On the methodological line, the jurisprudential sense is consecrated, together with the legal-dogmatic aspect. Regarding the type of investigation, the legal-proposal type is addressed. The type of research is exploratory. According to the technical procedures used, a bibliographic search is carried out. From the point of view of the nature of the approach, an applied analysis is prioritized. Finally, the main technique used was indirect documentation. With such an approach, the first chapter brings a constitutional perspective on the theme, and how it influences the interpretation of infra-constitutional law from the second chapter on. The third chapter, in turn, addresses the child and adolescent protection microsystem. It is concluded that there is the possibility of minors refusing treatments using blood, according to a categorization of this group into three subgroups: adolescents aged 16 to 18 years, older than 12 years and children. To solve the problem, three suggestions of a legislative, judicial and administrative order are transposed.