Diretivas antecipadas de vontade e a dignidade da pessoa humana: aspectos bioéticos e jurídicos no cenário brasileiro

Abstract

At the interface between Law and Health, a topic of significant relevance concerns Advance Directives (ADs), which constitute a category of documents through which individuals express their will regarding medical treatment. These include: (a) the Living Will, which outlines the types of care and treatments the patient consents to or refuses to undergo; and (b) the Durable Power of Attorney for Health Care, which designates a proxy to make healthcare decisions on behalf of the patient when they are no longer capable of articulating their preferences. In Brazil, this instrument is recognized by Resolution No. 1,995/2012 of the Federal Council of Medicine, grounded constitutionally in the principle of human dignity. Nevertheless, the absence of specific legislation on the matter gives rise to debates and legal uncertainties concerning its enforceability. In this context, the present study aims to examine the applicability and limitations of ADs within the Brazilian legal framework, in light of contemporary bioethical, normative, and legal standards. An analytical-descriptive bibliographic review was conducted, juxtaposing the selected theoretical framework with the jurisprudence of the Federal Supreme Court, particularly the joint judgment of Extraordinary Appeals No. 979,742 and No. 1,212,272. Bioethical principles and the notion of human dignity emerge as essential foundations for the comprehension of the subject matter, with autonomy identified as a core element in the preservation of dignity. The study endorses the merits of both the Federal Council of Medicine’s stance and the Supreme Court’s decision, which affirmed the patient’s right to autonomy—emphasizing that the right to life is not absolute, nor can it be construed in isolation from the principle of dignity and other fundamental rights. However, despite this progress at the normative and judicial levels, substantial advances in the practical implementation of ADs remain limited. The legislative vacuum surrounding the topic persists, engendering legal uncertainty. Therefore, the formulation of specific legal provisions regulating ADs is imperative to safeguard individual autonomy and human dignity in life, in healthcare decision-making, and in the dying process.