Recusa da transfusão de sangue por testemunha de jeová civilmente incapaz: teoria do menor maduro e sua influência

Abstract

Considering that we live in a plural society with the most diverse religious and cultural manifestations, occasionally sensitive issues about religious freedom attract our attention, such as the refusal of blood transfusions by Jehovah's Witnesses, especially when it deals with civilly incapable individuals, and for this reason we research the impact of the mature minor theory on the possibility of refusal of blood transfusions by underage Jehovah's Witness patients, in the light of the Brazilian legal system, in order to discuss the possibility of these being able to refuse certain medical treatment due to their conscience, supported by the national legislation as well as by doctrines that emerged abroad, notably the doctrine of mature minors. Therefore, it is necessary to examine the religious foundations that guide the decision of Jehovah's Witnesses to abstain from blood, also to carry out a study on the fundamental right to religious freedom in Brazil, describing the historical evolution of the protection of this right and addressing the subject of conscientious objection, and finally to know the theory of the mature minor, drawing its conceptual limits and investigating how it has been applied in Brazilian courts in situations where underage patients reject blood transfusion. Then, a research with a strategic basic purpose, descriptive and exploratory objective, under the hypothetical-deductive method, with a qualitative approach and carried out with bibliographic and documentary procedures, is carried out. Therefore, it was found that despite a movement to grant more autonomy to young people regarding medical decisions, no Brazilian court decisions were found that were based on the mature minor theory to privilege the decision of a minor to refuse blood transfusion , most likely because so far there is no express legislation in Brazil about a different age group for medical decisions, applying in most cases, albeit mistakenly, the civil capacity with an eminently negotiating background.