Legislation on medically assisted dying has remained unregulated, but its future may be in question with the possible change in the balance of power in the house after the March 10 election.
“The Assembly of the Republic confirmed on May 12, by an absolute majority of Deputies in office, the new version of the diploma on medically assisted death, for which the president of the Republic promulgated Decree No. 43/XV, of the Assembly of the Republic, as is required under Article 136.2 of the Constitution of the Portuguese Republic”. The laconic communiqué of the presidency of the Republic, dated May 16, 2023, thus closed another chapter in the long legislative history of euthanasia. Legislative initiatives on medically assisted death have been, since 2015, the target of two political vetoes by the president of the Republic and two unconstitutional vetoes decreed by the Constitutional Court. The law was finally approved with 129 votes in favor, 81 against and one abstention. This result exceeded the 116 votes needed for the bill to pass. For history were the favorable votes of the PS, The Liberal initiative, Left Bloc, PAN and Livre and the seven deputies of the PSD: Adão Silva, António Maló de Abreu, Rosina Ribeiro Pereira, Hugo Carvalho, Mónica Quintela, Sofia Matos, Catarina Rocha Ferreira. Against were the PSD, four Ps deputies (João Azevedo, Cristina Sousa, Joaquim Barreto and Sobrinho Teixeira), Chega and PCP. Jorge Mendes, of the PSD, was the only abstention.
The beginning of a new chapter
However, Parliament was dissolved following the resignation of the government and the process stalled. This promulgation by the president of the Republic has become just another episode in a story that is not over yet. And it promises to last. The law still needs to be regulated and what will happen next depends on the configuration of the Assembly of the Republic that comes out of the March 10 elections. In addition, it will once again go through the Constitutional Court, which was where the overwhelming majority of PSD deputies, 56, sent a request for successive supervision.
It is unclear what will happen to the controversial euthanasia law. And the future scenarios become even murkier if we take into account that this is a fractious issue and a Parliament or government supported by simple and fragile majorities are not in favor of finding the consensus that these issues require. The irreversible and serious effects of the application of a law that determines the conditions and assumptions of death on demand or the definition and understanding of concepts, such as intolerable suffering among others, are incompatible with the absence of consensus and political insecurity. And a simple, fragile majority, right or left, is the most likely outcome of the next election. If the AD wins, and there is a parliamentary majority with Chega, it is theoretically possible that a proposal or bill could be presented to repeal this legislation. And it all goes back to 2015. If there is no progress in this direction, regulation remains. The lack of regulation is a loophole that makes enforcement unfeasible and the truth is that it may not be in the interests of any of the major party forces to raise dust and create divisions within the parties. If so, the law can sit in the water and wait for a parliament that is consensually favorable to it.
This is exactly what is happening with the legal regime that allows access to surrogacy through the amendment of the law regulating medically assisted procreation. The so-called ‘surrogacy’ legislation is still waiting to be regulated, and is now suffering a new setback. This law was published in Diário da República on December 16, 2021, entered into force on January 1, 2022, about two years ago, and it was established that the government would have 30 days to approve the respective regulation. But it was not until late last year that the government moved forward with the regulation of surrogacy. The National Council for medically assisted procreation (PMA) warned at the time that it did not have the resources to comply with the law. Until, on the 13th, The president of the Republic announced that he did not promulgate and returned the PMA regulation to the government. “Taking into account the importance of effective regulation of a matter that is a relevant concern of the legislator, in order to avoid future frustrations,” he justified. For Marcelo Rebelo de Sousa, It is essential “to proceed to the hearing of the National Ethics Council for The Life Sciences (CNECV) and the National Council for medically assisted procreation (CNPMA)”. Since”the opinions issued by the aforementioned entities express frontal opposition to the proposed diploma in question”.
In January 2017, after the approval of this legislation in Parliament and the promulgation by the PR, a group of Deputies from the PSD and the CDS asked the TC for successive supervision of the law. In April 2018, the norm that did not admit that the pregnant woman could go back with the established agreement, until the moment of delivery of the child, was declared unconstitutional. In July 2019, the Assembly of the Republic again approved the amendment but did not include the imposition of the TC. Marcelo then asks for the preventive inspection of the diploma, even after it has been approved by Parliament. And the TC again flouted the law. It was not until 2022 that it finally came into force, but the PR did not promulgate its regulations. PMA thus joins euthanasia as two fracturing laws that will only be applied when political and legal consensus is found, doubts have been dispelled and the will of the legislator coincides with the majority it represents and with the opinion of the entities that will be at the forefront of the application of the laws.
What the law says
The euthanasia law approved by the majority of Deputies, determines that medically assisted death occurs by decision of the person himself, of legal age, of Portuguese nationality or legally residing in national territory. It is a fundamental requirement that the person must be in “situation of suffering of great intensity, with definitive injury of extreme severity or serious and incurable disease”. Medically assisted death can only occur in one of the following ways: medically assisted suicide, which is the situation where the patient self-administers lethal drugs under medical supervision; or euthanasia, when lethal drugs are administered by a qualified health professional. Medically assisted death can only be caused by euthanasia when it is not possible to achieve medically assisted suicide due to the physical incapacity of the patient. In this latest version of the law there is no right to choose between suicide and euthanasia.
As for the concepts, the law defines suffering of great intensity as that which results from a serious and incurable disease or from a definitive injury of extreme gravity. And it has to be of great intensity, persistent, continued or permanent and considered intolerable by the person himself. Definitive injury of extreme severity is a serious, definitive and largely disabling injury that places the person in a situation of dependence on a third party or technological support for the performance of elementary activities of daily living, with certainty or high probability that these limitations will persist over time without the possibility of cure or significant improvement. Serious and incurable disease, on the other hand, is a disease that threatens life, is in an advanced and progressive stage, is incurable and irreversible and causes suffering of great intensity.
The procedure involves a request made in writing by the patient and addressed to a doctor, who is responsible for coordinating all information and assistance to the patient. The doctor issues a reasoned opinion within 20 working days and draws up a report with all the information about the patient’s condition and situation, what the treatments are and the prognosis. If the patient maintains the request for early death, he must register his will in writing. If the medical opinion is not favorable to the patient’s request, the procedure is canceled, but nothing prevents it from being started again. If the doctor’s opinion is favorable, a consultation of another doctor who specializes in the disease follows, who has 15 days to confirm or not whether the situation is within the assumptions of the law, what the diagnosis is and whether the nature of the disease is indeed serious and incurable. All this confirmed by the specialist doctor, the patient must reaffirm that he maintains the will. The opinion of a psychiatric expert is only necessary in situations where doubts remain about the patient’s ability to request early death and if the possibility of a mental disorder or medical condition affecting decision-making is detected. This opinion is binding.
If all opinions are favorable, the clinical report is sent to the Commission for verification and evaluation of clinical procedures for Medically Assisted Death, to request a further opinion on compliance with the procedure. If this commission is favorable, the patient must confirm once again whether the request and the Will are maintained. A request that can be revoked at any time.
After this process, the method, place and day to perform the procedure is then defined. The doctor must also inform the patient about the available methods: whether death is caused by self-administration of lethal drugs or by administration by the doctor when the patient is unable to do so. The approved law does not define who is responsible for certifying the physical incapacity of the patient or who ensures medical supervision during the act. And it refers the filling of this gap to regulation.
The unfinished story of a law
It all started in 1995, with the first opinion of the National Council of ethics for The Life Sciences (CNECV) on euthanasia. The rapporteur was the doctor Daniel Serrão, who wrote:”There is no ethical, social, moral, legal or deontological argument of the health professions that theoretically justifies making the intentional death of the patient possible by law (…) even if by way of ‘at the request’ and/or ‘compassion’”. It warned: “the acceptance of euthanasia by civil society and the law would lead to a breach of trust that the patient has in the doctor and in the health teams and could lead to an uncontrollable liberalization of the ‘license to kill’ and to barbarism.” Seven years later, the Netherlands would become the first European country to decriminalize euthanasia and assisted suicide.
Fifteen years later, the issue reaches the debate in the public square at the insistence of the Left Bloc. And, in 2010, the Portuguese Bioethics Association asked Parliament to legislate on the living will. Two years later, PS, BE, PSD and CDS-PP present proposals related to the Living Will and a joint text is approved two years later.
In 2015, the right to Die With Dignity movement was founded, which promoted a manifesto demanding the urgency of decriminalizing assisted dying and, that same year, delivered a petition with more than eight thousand signatures to Parliament. This petition contained the names of João Semedo, Paula Teixeira da Cruz, Alexandre Quintanilha, Rui Rio and José Manuel Pureza. This be deputy managed to schedule a debate on the topic for 2017. And in January, the Portuguese Federation for Life responded with a petition against it, arguing that the state has a duty to protect life and “not to create the right for someone to be killed by someone else.” It is in May 2018 that the first bills on euthanasia are voted. The initiatives came from the PS, BE, ENP and PAN. None achieved the necessary 116 votes, and it was the PS project that had the most votes: 110 votes in favor, 115 against and four abstentions.
After the elections of 6 October 2019, euthanasia returned to Parliament. CDS and Chega still pose the possibility of the issue being referred to a referendum, but the left-wing parties oppose it. In February 2020, PS, BE, PAN, ENP and IL see their projects generally approved, and in January 2021, a common text approved by the majority of Deputies is prepared. This is despite the fact that, during the process, Passos Coelho and Cavaco Silva publicly spoke out against euthanasia. Cavaco Silva described this initiative as” the most serious decision for the future of our society that the Assembly of the Republic can take “and explained that with approval it would be”opening a door to abuses in the matter of life and death with frightening consequences”. Passos Coelho wrote in the Observer that decriminalizing euthanasia ” would radically change our view of society” and warned that “it may represent a dismissal and a disrespect of society in the way of helping those who suffer.”
The bill was passed anyway and would be the first of several attempts. The first obstacle was imposed by Marcelo Rebelo de Sousa, who sent the diploma to the Constitutional Court, raising several doubts. The text is flunked on several grounds and, among them, for “insufficient normative density” in the very article that established the assumptions. In November 2021, when the deputies conclude a new version to put to the vote, there was already a date for the dissolution of the Assembly of the Republic. The diploma is approved, but is soon vetoed by the president, who wants clarifications that he considers vital and basic. He wants to know if, in order to have euthanasia, “a ‘fatal disease’ is required, if only ‘incurable’, if only ‘severe’”. The bill returns again to Parliament, where it will be approved again in November 2022, but does not include the mandatory “fatal disease” that Marcelo had demanded. The president again sends the law to the TC – we are in January 2023 and in the third version of the diploma.
The judges again declared the law unconstitutional-seven judges against one -, considering that the diploma was wounded by “intolerable indefiniteness of suffering of great intensity”. The text did not explain whether all the characteristics of suffering – physical, psychological and spiritual – had to be present to contain the concept. The concepts of “severe and incurable disease” and” definitive injury of extreme severity ” as criteria for access to euthanasia were not considered problematic. Returning to Parliament, the deputies opt for a simplification of the concept and establish that the criterion is “suffering resulting from a serious and incurable disease or a definitive injury of extreme gravity, with great intensity, persistent, continued or permanent and considered intolerable by the person himself”. No further details. And they innovate. For the first time, a version appears in which the concepts of medically assisted suicide and euthanasia arise as subsidiary: “medically assisted death can only occur by euthanasia when medically assisted suicide is impossible due to the physical disability of the patient.” The law is approved for the fifth time in Parliament and sent to Marcelo, who vetoes politically. It doesn’t work. Days later, the diploma is confirmed in the Assembly of the Republic and the president is forced to promulgate it. “I swear by the Constitution. The Constitution obliges the president to promulgate a law that he vetoed and that was confirmed by the Assembly of the Republic (…) it is my constitutional duty,” he justified.
If it is true that Marcelo ended up winning, the PSD deputies did not and sent the law to the TC asking for successive supervision. Even before its regulation, which may not even come. The first argument that this request for supervision raises for the declaration of unconstitutionality is “based on the principle of the inviolability of human life and the absence of a fundamental right to self-determined death”. The Social Democratic deputies say that this regulation ” causes an implicit devaluation of the dignity of the weakest in society (sick, elderly and disabled people), and a degradation of the functions of the health system and its professionals, especially when a new provision is institutionalized by the state and a new Administrative Procedure to satisfy it”. And they raise the issue of the sliding ramp: “the breach of the principle of the inviolability of human life opens the door to the sliding widening of the conditions and assumptions in which medically assisted death may occur.” If they fail to convince the TC of this general request for the unconstitutionality of the law, this group of Deputies raises their doubts about 20 norms for “violation of the constitutional prohibition of the deficit of protection of human life”.
Who will write the final chapters of this legislation, the election will tell. Although it is increasingly evident that consensus whether political, legal, scientific or social seems more difficult to achieve with each passing year. Increasingly being a weapon of political throwing and subject of partisan struggles. And with this it will always be a law wounded by compromises or by defense in an eagerness to exist.