A declaração de inconstitucionalidade da vedação à doação de sangue por parte de homens homossexuais e sua reverberação na construção de uma nova face do sujeito constitucional

Abstract

The present scientific effort aims to investigate, based on Michel Rosenfeld's chair, the evidence of the eternal reconstruction of the image of the constitutional subject within the scope of ADI 5543 / DF, an opportunity in which the Supreme Court declared the unconstitutionality of articles 64, IV, of the Ordinance 158/2016 (Ministry of Health) and 25, XXX, d, of RDC 34/2014 (ANVISA), which restrict, for a period of twelve months, the donation of blood by male homosexuals and their eventual sexual partners. To do so, in a first moment, the main normative provisions about hemotherapy in the national scenario are analyzed, as well as doctrinal and jurisprudential positions prior to the Supreme Court decision. Following, the cardinal points of Rosenfeld's work, “The Identity of the Constitutional Subject” (2003), are presented, to contemplate aspects of the conceptualization and construction of this identity, with a special look at the difficulties involved, as well as the handling of the negation tools, metaphor and metonymy in that process. Also addressed are considerations relevant to the fight against discriminatory treatment in the Democratic Rule of Law, with a focus on human dignity and equality. In addition, some of the considerations proposed by the Ministers of the STF in the scope of ADI 5543 were condensed to, finally, a dialogue between the r. decisum and the process of (re) construction of the constitutional subject's identity. At the end of this performance, the Supreme Court's performance is understood as the landmark of a new chapter in the trajectory of the recognition of rights and, nevertheless, of the production of a pertinent image of the contemporary constitutional subject, where, through the recognition of the homosexual individual as a of the multiple faces that make up the Brazilian constitutional identity, the relevance of raising, given the lack of reasonable grounds for unequal treatment between the different expressions of sexual freedom, enshrines equal access to fundamental rights and guarantees.