Prioridade para doadores: exame da constitucionalidade de proposta de solução à escassez de órgãos para transplante no Brasil

Abstract

Given the death toll of people waiting for an organ transplant, and the failure of measures taken by Brazil to meet donor goals, a study on proposed solutions to this shortage scenario is needed. After presenting a n overview of the Brazilian norms that regulate organ donation, this paper turns to the analysis of the constitutionality of the donor priority system, also called allocation priority, a proposal that establishes a precedence criterion in the transplant waiting list for those who register as organ donors, encouraging the practice. Based on other countries that have adopted the allocation priority, the subject of this study is established from the best aspects of these foreign legislations, as well as those that are most consistent with the Brazilian reality. The examination of constitutionality is performed from the perspective of broad factual support of fundamental rights, and the method adopted is the submission of the proposal to the proportionality rule, with its criteria of adequacy, necessity and proportionality in the strict sense. The study indicate the need to modify the current regulation of the manifestation of willingness to be a donor, so that the individual's autonomy prevails over the will of family members. It is concluded that the donor priority system, besides being potentially efficient, is fully compatible with the Brazilian constitutional order, being a viable proposal to solve the shortage of organs for transplantation in Brazil that deserves greater attention from the academy.