Reprodução humana assistida heteróloga: o embate entre o direito ao anonimato do doador e o direito à ancestralidade

Abstract

Assisted human reproduction is understood as the set of techniques that aims to manipulate the human reproductive elements, one of the modalities is heterologous, in other words, when there is the use of the genetic material of a nameless person. In this context, the conflict arises between the right to anonymity of the donor, based on the right to intimacy, versus the right to know the genetic origin by the person borned with these technics, supported in the right of personality. Therefore, both are considered fundamental rights and have a high hierarchical position. This work has the central objective of analyzing if there is the possibility of equating the disagreement in focus and which law should prevail. The present study was carried out through the exposition of concepts, principles of Bioethics and Biolaw, general and juridical aspects of assisted human reproduction, and the analysis of the right to anonymity and knowledge of genetic origin, focusing on the conflict between these guarantees. As these are two fundamental rights, the conflict in evidence must be solved through the technique of balancing interests, in other words, it will be analyzed, in the specific case, which right should overlap. The method of approach used was the deductive, starting from a general analysis of the matter for a more specific research. The approach used was the comparative, through the exposition of diverse doctrinal currents. With this research, it can be verified that the doctrinal and jurisprudential understanding is not pacific, and the absence of specific laws to regulate the assisted reproduction causes numerous concerns and legal uncertainty. The legal regulation of the issue in question is essential, because the Resolution 2.168/2017 of the CFM does not have the effectiveness or normative force of law. Moreover, while this legislative gap persists, the lawmaker must resolve this controversy by observing the principles of human dignity, the best interest of the child and adolescent, affectivity and responsible parenthood, so that it does not harm the offspring.