Autonomia e paternalismo médico na questão intersexo: uma democratização através do Direito

Abstract

The present thesis proposes a theoretical and documentary analysis parting from central themes regarding intersex rights: the process of medical interpellation, which forces a subject’s corporal and social conformation when the person is naturally not adjusted to the classical notions of male or female anatomy, as well as the pathologization and social invisibility of abject sexual and gender identities. In this context, it aims to deeply investigate the paternalistic bases of biomedical discourse and practice that create an illusory appearance of medical urgency or emergency, which can camouflage human rights violations. Therefore, it brings the question of how is it possible to democratically guarantee intersex people’s rights of autonomy and gender identity self-determination, based on a legal system capable of overcoming an excessive medical control, with a rationale that meets the democratic interests of stigmatized minorities. In order to do so, a bioethical and philosophical notion of autonomy sensitive to Human Rights and Latin American’s reality is purposed. Moreover, an intrinsic potential of Law to fill gaps in other spheres is assumed, which can guarantee firm conditions to protect subject's will and identity when their individual autonomy is not sufficiently respected. It was found that, in a lesser amount of cases, therapeutic medical procedures may be necessary to avoid the risk of death or serious bodily injury, which makes relativizing autonomy in the name of health protection justifiable. However, in most situations, it is perceived that preserving aesthetic and reproductive functions are the main goal, in accordance to a heterosexual matrix that is not necessarily compatible with the “patient’s” self-identity. In this sense, a deficit of the intersex autonomy’s recognition in decision-making processes is observed, which goes against international and foreign legal regulations, as well as rights present in the Brazilian legal system itself or in treaties ratified by the country. With a new transdisciplinary approach, it is possible to achieve intersex rights, such as the correct civil name and sex registration, bodily autonomy, physical integrity, self-determination of gender identity, non-discrimination and to a free and informed consent for medical treatments. It was concluded that a Judicial Branch with a broad and protective democratic basis allows those affected to be heard, considering the power concentration and disregard of individual interests of those outside the decision-making processes. That’s still the main reality within a medical practice ridden with strong paternalism and disease-centered scientific objectivism. Thus, although susceptible to the will of an unelected judge, the countermajoritarian feature of judicialization, with the help of social movements, can provide sexual and gender minorities more opportunities to participate in situations related to their own rights and in which the Legislative often becomes insufficient, considering the limitations of the majoritarian system.