—Teresa Violante, Friedrich-Alexander Universität Erlangen-Nürnberg
[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]
Assisted dying regimes are increasingly being introduced globally. When the democratic legislature fails to take the initiative, courts have stepped in and pushed for legal reform claiming that this is an issue of human rights. In Portugal, however, introducing legislation on assisted dying was a long and tortuous process, and the Constitutional Court only recently addressed the problem from a fundamental rights perspective. This contribution describes the long road to framing assisted death as a human right and the perils of democratically legislating on such a contested topic in a semi-presidential system when the President of the Republic and the Constitutional Court join forces to resist legal innovations.
1. Assisted dying globally
Across the world, more and more countries have approved and implemented assisted dying or are in the process of doing so. In Spain, the legislation came into force in June 2021 and, in several Australian states, in the last few years at the impetus of the democratic legislature. In New Zealand, in November 2021, following a referendum. In France, a citizens’ convention convened by Macron backed the issue, and a draft bill should be produced by the end of the summer. After a public consultation that enjoyed widespread support in Scotland, a bill on assisted dying will be drafted later this year. A special parliamentary committee on assisted dying has been approved in Ireland and started working in January 2023.
Constitutional and supreme courts have held that assisted death corresponds to exercising a fundamental right that the legislator cannot ignore. The absolute prohibition of assisted dying in the case of severe and incurable diseases causing intolerable and lasting suffering is unconstitutional, as has already been affirmed by the Supreme Court of Canada[1] and the Constitutional Courts of Austria,[2] Italy,[3] and Colombia.[4]
The legislation currently in force in Canada and Austria is the result of these judicial decisions, which have concretised the fundamental right to a dignified and self-determined death in the exercise of the right to autonomy and freedom, covering not only people who are near the end of life but also people suffering from a severe and incurable illness.
The German Constitutional Court, in a truly historic decision of February 2020, also referred to the fundamental right to self-determined death, emphasizing that the protection of life cannot be translated into the annihilation of individual autonomy.
The question of determining what the Constitution allows and what it imposes on self-determination and dignity in death, in extreme conditions of suffering and illness, has challenged parliaments and courts worldwide.
Regardless of the religious, moral, and ethical resonance of this issue and one’s personal beliefs, this is a legal problem. When the democratic legislature does not proactively address it, courts have taken the impulse and pushed legal reform in the name of fundamental rights.
2. The pains of legislating on medically assisted death
Following a civic movement advocating the right to die with dignity initiated in 2015, a bill legalising medically assisted death was first approved in the Portuguese Parliament on 29 January 2021 (Decreto 109/XV). Such a bill provided for decriminalising euthanasia and assisted suicide at the request of adults in intolerable suffering, with a definitive injury of extreme gravity or incurable and fatal disease.
Following a challenge by the President of the Republic, the Constitutional Court blocked the bill in an a priori review (Acórdão 123/2021, English translation). The Court found that some of the concepts employed by the legislator breached the principle of legal determinacy as a corollary of the rule of law and the requirement for a parliamentary statute.
Although the Court failed to recognize, in this first moment, the existence of a fundamental right to a self-determined death, the majority ruling was open to accepting a “positive constitutional interest” to third parties’ aid in limited cases where death is imminent. This minimal position would later evolve to a significant number of judges recognizing the fundamental right to assistance with suicide in extreme situations of suffering and disease, as we will see below.
Furthermore, in this first ruling on the issue, the Court called upon the legislature to clarify the model adopted, claiming that comparative law showcased the existence of two paradigms: one where assisted death required the presence of a terminal condition and the other where it did not.[5]
When the legislature addressed the Constitutional Courts’ objections, the resulting bill had some conceptual inconsistencies that were not successfully overcome due to political disagreement. That gave ground to the President of the Republic to politically veto the new bill. Notably, the President claimed that the amendments had broadened the original scope of the legislation and that the revised bill was aligning with a “more radical or drastic” vision, following the lead of the Constitutional Court on the existence of two models on assisted death.
It should be noted that it had been clear from the legislative works that the intention was to encompass not only terminal and fatal conditions but also severe illnesses that were not necessarily fatal. In the political debate, assisted death had never been limited to situations of imminent death.
Following the Presidential veto and under a new legislature, a new bill was drafted that faced another a priori challenge by the President of the Republic. Even though the Court did not accept any of the President’s challenges, most judges found that a new concept employed raised insuperable interpretative doubts regarding its scope (“suffering of high intensity”). Specifically, the judges questioned whether the legislature defined suffering as “physical, psychological and spiritual suffering”, outlining the three dimensions as cumulative or alternative (Acórdão 5/2023).
This ruling had substantial importance in the regime that came to be approved not only for the direct impact on modifying the concept of suffering but also because it pushed the legislature to introduce the subsidiarity of assisted suicide in relation to euthanasia.
The legislature passed another bill to address the Constitutional Court’s concerns that met another political veto from the President of the Republic. This time the President considered that it would be essential to clarify who would be responsible for determining when the patient is physically prevented from committing assisted suicide and who should supervise assisted suicide. According to the President, clarifying the first doubt would be even more imperative given the absence of parallel solutions in other jurisdictions.
Confronted with the veto, the Parliament, with an absolute majority, opted to confirm the bill without modification, forcing the President to promulgate it.
3. The subsidiarity of assisted suicide
Law 22/2023, of May 25, was published, introducing legalized euthanasia and assisted suicide under strict conditions. It can only be exercised by nationals or foreigners legally residing in the national territory. From a comparative perspective, the main innovation lies in the fact that euthanasia is established as a subsidiary mechanism: unlike the case of the Spanish legislation (Ley Orgánica 3/2021, de 24 de marzo, de regulación de la euthanasia), in Portugal, the patient can only resort to euthanasia if she is physically unable to practice assisted suicide [Article 3(5)][6]. This solution was introduced in Parliament to avoid future challenges to the legal regime. Several judges expressed the view, in their opinions joined to Acórdão 5/2023, that euthanasia should not be viewed as equal to assisted suicide because it implies a greater sacrifice of the right to self-determination (Judge Gonçalo Almeida Ribeiro) and because suicide cannot be legally forbidden and there is a constitutional interest in protecting third parties’ aid to suicide in extreme circumstances (Judge Afonso Patrão).
The detailed development of this line of reasoning in the opinions, even though the question did not make it to object of the ruling, caught the attention of the legislature. Interestingly, the majority of the MPs expressed the view that they did not endorse the (minority) opinion of the judges and that the original solution was preferred.
However, considering the tortuous and lengthy process to successfully legislate on assisted dying, the legislature opted to enshrine a subsidiarity clause like the one entailed in the laws of the Australian states of Victoria and South Australia that only allow a practitioner administration permit to be issued if the patient is physically incapable of the self-administration or digestion of the voluntary assisted dying substance. Better safe than sorry.
4. A fundamental right to a self-determined death?
Under a renewed composition in 2023, the Constitutional Court did not follow its previous understanding that assisted dying is only permissible in extreme cases when death is in motion and imminent.
According to the concurring and dissenting opinions joined to the ruling, several judges now share the view of several other constitutional jurisdictions on the existence of a human right to a self-determined death, which includes the right to be assisted to die with dignity in situations of injury and illness. This entails a critical consequence: whereas in its first ruling, the Court considered that the legislature was acting within its margin of appreciation, now the legislation must be assessed under a different framework. It no longer corresponds to the exercise of the free democratic will of Parliament, but is constitutionally constrained. With different formulae, several judges have stated their position on a fundamental right to a self-determined death, the content of which includes assistance to die with dignity in extreme conditions of injury and illness.
Two abstract constitutional challenges to the law have already been announced: one, which has already been filed, raises the problem of the rights of the autonomous regions that were not involved in the legislative process. The other, to be filed in September by MPs of one conservative party, will expectedly raise substantial problems on the legal regime.[7]
The Constitutional Court could then consolidate its position on the right to die with dignity without the severe time constraints of an a priori review.
Suggested citation: Teresa Violante, The Right to Assisted Dying in Portugal, Int’l J. Const. L. Blog, Aug. 23, 2023, at: http://www.iconnectblog.com/2023/08/the-right-to-assisted-dying-in-portugal/
[1] Carter v Canada (AG), 2015 SCC.
[2] Decision G 139/2019-71, of 11 December 2020.
[3] Ordinanze 207/2018 and Sentenza 242/2019
[4] See, more recently, C-164/2022.
[5] For more details, see T. Violante, “From the legislature’s margin of discretion to a fundamental right: The long road to assisted dying in Portugal”, Diritti Comparati, 21 Marzo 2023, available at https://www.diritticomparati.it/from-the-legislatures-margin-of-discretion-to-a-fundamental-right-the-long-road-to-assisted-dying-in-portugal/.
[6] For a comparison between the Portuguese and the Spanish regimes see Miguel Ángel Presno Linera, “El derecho a la eutanasia en España y Portugal”, available at https://www.ibericonnect.blog/2023/06/el-derecho-a-la-eutanasia-en-espana-y-portugal/ .
[7] Once the Government publishes the regulations on the assisted dying act, the law can be implemented since none of these challenges suspends the effects of the legal reform.
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