Renúncia ao exercício do direito à integridade física: O direito ao acesso a tratamentos experimentais não reconhecidos e/ou não validados

Abstract

The poor positioning of Brazil in an international quality of death index reflects the reality of low quality of death for Brazilians, especially those diagnosed with a terminal or incurable illness, particularly in the public healthcare system. In this scenario, where there is little or no State support in this phase of life, which would require at least palliative care, some people may desire a cure, even if their disease has no known treatment, through access to promising medications that are in the early stages of clinical trials. However, Brazilian law prohibits skipping research stages, which theoretically makes it impossible to access such medications. On the other hand, the 1988 Constitution provides for, among other fundamental rights, the right to life and health. For this reason, this work sought to explore, based on a broad interpretation of the right to life and the waiver of the exercise of physical integrity, the existence of voluntary and conscious submission to experimental treatments, and whether there are benefits. To this end, this research has a qualitative approach, as it draws on empirical knowledge, as well as research, legislation, doctrine, and jurisprudence. As for the method, a deductive approach is used. Throughout this work, there are reflections on the right to life, health, human dignity, and personal development, as well as changes in legislation and the current landscape of access to experimental medications. Therefore, supported by the right to human dignity, the maximum effectiveness of the right to life, and other personality rights - given the absence of specific legislation - it concludes that it is possible to access experimental medications, even in the early stages, without violating fundamental rights.