Revista do Hospital das Clínicas
Print version ISSN 0041-8781
COHEN, Claudio and MEIRELLES, José Ricardo. Transplants: bioethics and justice. Rev. Hosp. Clin. [online]. 2003, vol.58, n.6, pp. 293-298. ISSN 0041-8781. http://dx.doi.org/10.1590/S0041-87812003000600001.
Bioethics, as a branch of philosophy that focuses on questions relative to health and human life, is closely tied to the idea of justice and equality. As such, in understanding the concept of equality in its original sense, that is, in associating it to the idea to treat "unequals" (those who are unequal or different, in terms of conditions or circumstances) unequally (differentially), in proportion to their inequalities (differences), we see that the so-called "one-and-only waiting list" for transplants established in law no. 9.434/97, ends up not addressing the concept of equality and justice, bearing upon bioethics, even when considering the objective criteria of precedence established in regulation no. 9.4347/98, Thus, the organizing of transplants on a one-and-only waiting list, with a few exceptions that are weakly applicable, without a case by case technical and grounded analysis, according to each particular necessity, ends up institutionalizing inequalities, condemning patients to happenstance and, consequently, departs from the ratio legis, which aims at seeking the greatest application of justice in regards to organ transplants. We conclude, therefore, that from an analysis of the legislation and of the principles of bioethics and justice, there is a need for the creation of a collegiate of medical experts, that, based on medical criteria and done in a well established manner, can analyze each case to be included on the waiting list, deferentially and according to the necessity; thus, precluding that people in special circumstances be treated equal to people in normal circumstances.
Keywords : Bioethics; Ethics; Equality; Justice; Lei 9.434/97; One-and-one waiting list; Transplants; Regulation 3.407/98.