The new Spanish law on euthanasia contested against the Constitutional Court a few days before its entry into force
Published on : 24/06/2021
Author / Source : European Institute of Bioethics
Friday June 25 is the stipulated date for the Spanish new law on euthanasia entry into force, exactly three months after its approval and publication in the Spanish Official Gazette (Boletín Oficial del Estado). With this law (Ley Orgánica 3/2021), Spain becomes the eighth country in the world legalizing both physician-assisted suicide and active euthanasia, following the Netherlands, Belgium, Luxemburg, Canada, Colombia, New Zealand, and some states in Australia.
The law recognizes a new right, the right to euthanasia, which, according to the law, consists in the death of a person caused in a direct and intentional manner after the informed, explicit, and repeated request of that person, in a context of suffering caused by an incurable illness and which is conceived by the person as intolerable. The text of the law tries to ground this new right on other constitutional rights, such as the right to life, the right to physical integrity, the right to human dignity and the right to autonomy.
However, this new law is highly contested, and its entry into force is not coming without the opposition of society at all levels: politicians, experts, and citizens. In fact, the right-wing party Vox presented last Wednesday June 16 an appeal to the Spanish Constitutional Court asking for a declaration of unconstitutionality. This appeal was signed by all the Vox members of Parliament, 52, as the appeal needs the signature of at least 50 members. The document presented by Vox, which consists of more than 80 pages, states that such law involves serious transgressions:
The new law violates the right to life as understood by the European Court of Human Rights and the Spanish legal precedents.
It infringes the constitutional right to life as contained in Article 15 of the Spanish Constitution.
It ignores the duty of the Spanish State to protect its citizens (Articles 43, 49 and 50 of the Constitution), especially given the fact that there is an alternative treatment that better fits the proportionality principle: palliative care.
It violates the patient's right to autonomy, as the physicians can initiate the legal process for euthanasia themselves if the patient lacks decision-making capacity, and this without a judicial authorization requirement.
The law represents a discrimination against people with disabilities, and grants physicians abusive powers to decide in these cases and even skip certain steps required in the legal process.
It presents some defects in its quality as law, as some significant concepts are very vaguely defined and left to interpretation.
The law also violates the physician's right to conscientious objection in different ways, such as the fact that the physician must express its objection in a written form, and public authorities will keep a record with the names of the objectors.
The elaboration of the law presented some procedural vices, such as the fact that the Government did not count on the General Council of the Judiciary report, together with other reports from relevant organisms.
Vox also formally requested the immediate suspension of the law as a precautionary measure while the unconstitutionality appeal is being processed.
Vox Congresswoman Lourdes Mendez Monasterio, in an interview with the European Institute for Bioethics, explained that, according to the Spanish law system, this case presents all the characteristics for the law to be suspended: there is a real unconstitutionality presumption and the damages caused by the law would be irreversible if the law is declared unconstitutional later.
Mendez Monasterio pointed, however, at some deficiencies of the Spanish law system compared, for instance, to the Portuguese law system. The Portuguese Constitutional Court declared the law on euthanasia unconstitutional last March. The main difference here is that the Portuguese Court is obliged to declare the law either constitutional or unconstitutional before its entry into force, but there is no such obligation in the case of Spain. This is also the issue in the case of Spanish law on abortion: the Constitutional Court never responded to the unconstitutionality appeal presented eleven years ago.
The harmful consequences of this law are evident, such as the subversion of values on which the Spanish system is founded, the loss of trust in the doctor-patient relationship, the violations to patient's autonomy that will take place, the transgressions against people with disabilities and the reduction on expenditures on palliative care.
Experts and civil society are also mobilizing against the law. For instance, a documentary was published two weeks ago under the title “Who Wants to Die? Say No to the Tragedy of Euthanasia,” where Spanish prestigious doctors, jurists and researchers reveal the ethical, legal and social problems behind the new law. Other Spanish doctors published an article where they argue that this law is not what Spain needs, because what the country needs is significant improvements in the palliative care services. The more than 140 organizations that form the Assembly for Life, Freedom and Dignity (Asamblea por la Vida, la Libertad y la Dignidad) also announced a coming demonstration against the law.
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