Abstract
Brazilian physicians and judges frequently have to decide whether to save the life of a Jehovah Witness patient that refuses blood transfusion or let the patient die when treatment refusal reflects their religious belief. The Penal Code condemns the physician who fails to use all the available means to save the patient. The Civil Code, contrarily, requires the professional to respect the patient’s autonomy regarding their decision over an intervention with potential risk of death. The Brazilian Constitution guarantees religious freedom and the inviolability of the right to life. This article reviews the Brazilian jurisprudence on the matter through recovery of all available decisions in the Federal and State Courts’ online database up to 2013. The results show that these superior courts consider that people are not allowed to let go of their own lives for religious reasons when in a state of “imminent death”. However, when the patient’s clinical state is qualified as “at risk of dying”, physicians are requested to respect their dissent.
Highlights
The Brazilian legal system is based on civil law tradition and the country’s supreme law, the 1988 Federal Constitution, which explicitly protects individuals’ free exercise of religion[1]
When Jehovah’s Witness patients refuse blood transfusion or demand treatment with blood alternatives from the Federal State, they evoke their constitutional right of religious freedom that, in some circumstances, conflicts with the constitutional directive of life’s inviolability[1] and demands of the Civil and Penal Codes[2, 3]
There is the possibility of civil compensation[2] for cases in which Jehovah’s Witnesses’ wishes of not receiving blood transfusions are not honored, despite the patient being followed until the he or she reached a medical state of imminent death, as supported by the Penal Code
Summary
The Brazilian legal system is based on civil law tradition and the country’s supreme law, the 1988 Federal Constitution, which explicitly protects individuals’ free exercise of religion[1]. When Jehovah’s Witness patients refuse blood transfusion or demand treatment with blood alternatives from the Federal State, they evoke their constitutional right of religious freedom that, in some circumstances, conflicts with the constitutional directive of life’s inviolability[1] and demands of the Civil and Penal Codes[2, 3]. Jehovah’s Witnesses and physicians seek to guarantee their rights under these conditions with the guidance from judicial court rulings The former seek the right of having their constitutional right of freedom of religion guaranteed; the latter, their duty to preserve life, as well as their right of freedom (not to be condemned for homicide) and possibly, diminishing the odds of having to face liability. The main objective of this research was to study the Brazilian Jurisprudence regarding Jehovah’s Witness blood transfusion civil and criminal cases and analyze the States’ Justice Tribunals and Federal Regional Tribunals (Appeal Courts) rulings in such cases
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