Carlos Vinícius Alves Ribeiro* The fundamenTal righT To aesTheTic harmony: sTaTe's obligaTion and righT of The ciTizen1 O DIREItO fUnDAMEntAl à hARMOnIA EStétICA: OBRIGAçãO DO EStADO E DIREItO DO CIDADãO El DEREChO fUnDAMEntAl A lA ARMOníA EStétICA: OBlIGACIón DEl EStADO y DEREChO DEl CIUDADAnO
Abstract: Life is a leading Human Rights guaranteed by several legal instruments, among them the Federal Constitution of Brazil, the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights. However, to ensure a dignified life with quality, the State must guarantee other rights that support this dignified life with quality, as is the case of the fundamental right of aesthetic harmony, which if not fulfilled, can cause serious damage to the citizens’ quality of life, and these damages ranging from the physical to the mental sphere. Thus, arise, concomitantly, a right and a duty: the right to aesthetic harmony for the citizen and the duty to the State to give him/her the fulfillment of this right. Resumo: A vida é um dos principais direitos do homem assegurado por vários instrumentos legais, dentre eles a Constituição Federal do Brasil, a
* Mestre e doutorando em Direito do Estado pela USP. Diretor Institucional do IDAG, membro do Centro de Estudos de Direito Administrativo, Ambiental e Urbanístico da USP, membro fundador do Instituto Brasil-Argentina de Direito Administrativo. Promotor de justiça do Estado de Goiás. 1 Artigo oriundo de palestra proferida no Congresso da International Confederation for Plastic, Reconstructive and Aesthetic Surgery (IPRAS), em outubro de 2010, na cidade de Beijing (China).
Declaração Universal dos Direitos do Homem e o Pacto Internacional sobre Direitos Econômicos, Sociais e Culturais. No entanto, para assegurar uma vida digna e de qualidade, o Estado precisa garantir outros direitos que subsidiam essa mesma vida digna e de qualidade, como é o caso do direito fundamental à harmonia estética, que se não cumprido, pode causar danos de grave monta à qualidade de vida do cidadão, danos esses que vão desde a esfera física à mental. Dessa forma, surge, concomitantemente, um direito e um dever: o direito à harmonia estética para o cidadão e o dever de o Estado proporcionar-lhe o cumprimento de tal direito. Resumen: La vida es uno de los principales derechos humanos garantizados por diversos instrumentos jurídicos, entre ellos la Constitución Federal de Brasil, la Declaración Universal de los Derechos Humanos y el Pacto Internacional de Derechos Económicos, Sociales y Culturales. Sin embargo, para garantizar una vida digna y de calidad, el Estado debe garantizar otros derechos que apoyan esta misma vida digna y de calidad, como es el caso del derecho fundamental a la armonía estética, que, si no cumplido, puede causar graves daños a la calidad de vida de los ciudadanos, daños estos que van desde la física a la esfera mental. Por lo tanto, existe, al mismo tiempo, un derecho y un deber: el derecho a la armonía estética para el ciudadano y el deber del Estado de darle el cumplimiento a este derecho. Keywords: Life, fundamental right, aesthetic. Palavras-chaves: Vida, direito fundamental, estética. Palabras clave: Vida, derecho fundamental,estética.
life and health are concepts doomed to eternal marriage. One can not exist without the other. One is not possible without the other. It is not possible to admit a full life if citizens don't know the meaning of health. therefore, health is not the only vehicle of life, but a right without life becomes, if not impossible, life feeble, half-life. It is not for another reason that the United nations in 1948, in the Universal Declaration of the Rights of Men, in which the overwhelming majority of democratic countries are signatories, stated in its article 3 that every person has the right of life. And to have life, life that guarantees to the citizens the development of all their potentials, again the United nations, now on the International Covenant on Economic, Social and Cultural Rights (ICERSCR) of 1966, set in the article 12 that the States parties of that covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. But what is health? According to the World health Organization, it's the state of perfect physical, mental and social well-being. If health is a right of citizens and a State's duty, precisely because it is the vehicle enabler of life, and therefore, other rights of men, a fundamental question is how the aesthetic disharmony impacts on citizen's health. In other terms, when the citizen becomes entitled to see his/her aesthetic treatment funded by the State? the answer can not be objective nor abstractly given. One who pleads the state aesthetic repair should undergo medical evaluations, including the psychiatric and psychological, in order to assess the extent to which the aesthetic disharmony disturbs his/her health, and finally, his/her life. Obviously the State must not pay, using public funds, for
the ones who are looking for aesthetic perfection. On the other hand, it is not only a State duty – because it is a right in several countries including Brazil – but more than that, it is prudent that States should bear the cost of repairing treatments when disharmony reflects so greatly in citizens lives till the point of compromising health, especially mental. this State's duty of bear repairer aesthetic treatments, is a caution, even financial. that's why aesthetic harmony – post-trauma, whether congenital – may trigger mental illnesses that routinely put away citizens from social life and even activities. In countries, such as occurs in Brazil, signatories of various Union nation international conventions on social and health, and therefore responsible for finance, where a citizen can not do it under his/her own power, not just medical care – including all of the psychics – but even bear expesnses for citizens to live with dignity when they do not have work or are unable to work, it appears advisable to discuss the possibility that the State bears all sorts of treatment for citizens to remain useful and active in the broad sense of the word. therefore, allowing the citizen-suffer with aesthetic disharmony, State not paying for repair treatments, can result not only in mental diseases and the unquestionably obligation of the state fund for that, but in inability to work, that the country will suffer not only with the lack of the manpower, but, perhaps worse, spending a long period with welfare benefits and care that this citizen is forced to leave his/her daily routine, included his work. to have an idea, in Brazil, according to a recent survey of the UnIfESP (federal University of Sao Paulo), psychological troubles are responsible for 5 to 10 leaves of the functions of working citizens. Psychological disorders are the third main cause of absenteeism of work.
this represents, nowadays in Brazil, a welfare spending of 2.2 billion reais a year. In dollars, this represents 1.27 billion. It is noteworthy that I am only reporting the expense that the state will spend for citizens while impaired by reason of their mental work activities; here are not measuring the costs of medical treatments, which also, as I said, the obligation of the State. Although it is not possible to say - we have no specific research in this area in Brazil - how many of these psychological troubles were triggered by aesthetic disharmony, we can conclude, with no fear, that any measure the state takes to prevent the citizen from suffering of mental disorder is better than the huge financial spending. Moreover, it is particularly preferable in a human point of view, as if the aesthetic disharmony caused profound damages on the citizen as vanishing him/her from everyday life, we will have unhappy citizens. And, ultimately, what is the primary function of the state but enable us to be happy? Returning, in Brazil we have several cases where the state recognizes the citizenâ€™s right to be aesthetically assisted by doctors. these cases are made possible through the Unified health System, which includes public and private networks convening. for instance, we can talk about the lip repair, post-mastectomy breast reconstruction, burn survivor sequel reconstruction, post-trauma reconstruction, cleft palate repair, post-bariatric surgery abdominoplasty, etc. In many cases, of course, the State does not recognize the need of reconstructive surgery, denying the citizens claims on the grounds that are simply cosmetic treatments. In these cases, it is common that the issue emptying into the court, whether by private lawyers or by acting prosecutors office, which in Brazil there is, in addition to criminal responsibilities,
the function of protecting individual rights and interests most important among them, obviously the right of health and life. the judiciary, almost unanimously, concluding the need of treatment asked by the citizen, determines that the State promotes treatment through the public network or pay the cost of treatment in private, in a movement called by critics of "judicial activism". In Brazil, however, the activity of the justice system is being fundamental for the recognition and realization of the fundamental right to health. If one conclusion is possible in this brief, it is, on one hand, that aesthetic disharmony creates for citizens the right and on the other hand, for the State the duty to afford treatments. If the extent, that the lack of harmony, impacts on the citizens' lives to the point of compromising their health. to conclude, the aesthetic harmony is a citizen's right and a duty for the states when disharmony provokes detriment to citizen's health.