Liberdade religiosa da criança: recepção do constitucionalismo do Direito internacional dos Direitos humanos no Brasil

Abstract

This study deals with the perspective given to children's religious freedom in international human rights law and its reception in the Brazilian legal system. This freedom is conferred based on the understanding of the child as a subject of law, but parents are granted the choice of religious education in the ACHR, as well as the presence of the right to transmit their beliefs. Having said that, the following question arises: are the rights enshrined to parents regarding the child's religious freedom complete and in line with the constitutionalism of international law? The hypothesis is raised that this is not a full right, since if granted an absolute right, it could violate the child's human rights, such as freedom of knowledge in schools and risk to life, as occurs in the case of a transfusion refusal. of blood. In this sense, this dissertation seeks as a general objective to identify the limitation of parental responsibility as a result of the child's religious freedom based on the constitutionalism of international human rights law. To this end, it was necessary to understand how human rights treaties were incorporated into the Brazilian legal system, to find out how the conventions (Convention on the Rights of Children – UN and the Inter-American Convention on Human Rights – OAS) and the Federal Constitution deal with religious freedom of the child, and finally analyze the religious freedom of the child and its applicability within the constitutional scope. This study has a qualitative, exploratory and explanatory research methodology, drawn from documentary research and bibliographical research, guided by the evolutionary historical hermeneutic method. The need for this research is due to the importance of understanding the limits of parental responsibility in matters of religious freedom. Finally, the child, as a subject of rights and free development of his or her personality, has the right to religious freedom. Thus, it is understood that the parents' rights are not complete, which will be limited due to the best interests of the child, and this interference should decrease with the increase in the child's capacity for discernment.