O “testamento vital” como um direito da personalidade: o respeito à autonomia da vontade nas diretivas antecipadas

Abstract

With the advent of the 1988 Constitution, the need for private law to be interpreted in the light of constitutional principles emerges, with emphasis on the primacy of human dignity, with a privileged emphasis on the 2002 Code, through the insertion in this new legislation of provisions relating to to personality rights. In this new scenario, the issue related to the right to a dignified death evolves. The reflection of this in the doctor-patient relationship is the assumption of a more active and respected position of the patient, which ceases to be vertical and becomes horizontal. In this context, the idea of managing advance directives of will appears, documents that link family members and health professionals to the will of individuals in the face of an illness for which there is no longer a scientific solution. This article investi-gates one of the instruments of these advance directives, the living will, to assess its framing as a personality right and as a means of ensuring the exercise of the autonomy of the will to ensure the right to a dignified death and its legal admissibility in Brazil. The deductive meth-od is adopted in qualitative research, using bibliographic and documentary procedures. The living will is configured as a kind of advance directives of will, aimed at deliberation by the individual about therapeutic measures to be taken on the occasion of his decision-making in-capacity re sulting from a terminal illness. From the investigation carried out, it appears that the living will fulfills the requirements that allow classifying this instrument as a personality right.