DOAÇÃO DE ÓRGÃOS POST MORTEM E POLÍTICAS PÚBLICAS NO BRASIL: PONDERAÇÕES CONSTITUCIONAIS ENTRE AS LEIS N. 9.434/97 E 10.211/2001

This research aims to review the problem of post-mortem organs donation in Brazil, brought with the inversion of presumed consent system of human material donation, that occurred with Law no. 10.211/2001, which amended the wording of Article 4 of Law no. 9.434/97. This change gave the deceased's family the final decision on the donation, based on personality's rights - which, paradoxically, may contradict the decision taken in life by the deceased to grant his mortal remains for altruistic purposes. On the other hand, there is an ethical and legal concern regarding to the presumed consent of the human body as a res communitatis, which - despite being in line with the principle of solidarity to guide the [Social] State in the concretization of the rights to health and to life - it can jeopardize the individual's right to self-determination. Since both dimensions (individual and social) deserve protection as fundamental rights that integrate Human Dignity - bastions of a Democratic State - this work aimed to harmonize them, through a legal and bibliographic exploration in the light of constitutional precepts, conciliating them through a deductive and dialectical reasoning, aiming at a normatization to give greater efficiency to the public policies of organ donation. As a result, family liberality should only be given in a subsidiary way, in the event of the deceased's absence of expressive manifestation in life of becoming a donor or not.