La sentencia no. 242/2019 del Tribunal Constitucional italiano sobre el suicidio asistido y consideraciones sobre la dignidad humana y el principio de autonomía a la luz de la pandemia del coronavirus

Décimo Quinta Edición

La sentencia no. 242/2019 del Tribunal Constitucional italiano sobre el suicidio asistido y consideraciones sobre la dignidad humana y el principio de autonomía a la luz de la pandemia del coronavirus

Por: Giovanna Razzano

Abstract

The paper analyzes judgment no. 242/2019 of the Constitutional Court, which rewrote art. 580 of the Italian Criminal Code, by a very detailed manipulative and additive ruling, after the previous order n. 207/2018, by which the same Court gave Italian Parliament one year to amend the current legislation in the indicated sense (without the Parliament obeying). According to the judgment, aid to suicide remains a crime, but the person who facilitates the execution of the suicidal purpose is no longer punishable in cases where the suicidal aspirant is in certain conditions, verified by public structures of the national health system and by the territorially competent ethical committees. One of the conditions is that the person is kept alive by life-support treatments and suffering from an irreversible pathology, source of physical or psychological suffering which he or she considers intolerable. The sentence, which is a “legislative” and derogating rule, is criticized by the Author not only because of the principle of democracy and because it is the expression of a political will on the part of a constitutional guarantee body, but also as it opens a gap in the guarantees placed to protect right to life, despite the fact that the Court defines it the most inviolable right and premise for the exercise of all other rights. The judgment is then based on the questionable assumption that refusing health treatments is the same as intentionally procuring death, as well as on the idea that suicide aid could be qualified as health treatment, in disagreement with the opinion of scientific medical societies. However, the Author considers appreciable that the Court has clarified that from the right to life derives the State’s duty to protect life and not to recognize aid to die; and that, consequently, there is no duty of the doctors to grant these requests. Equally appreciable are the statements on the priority of palliative care, a pre-requisite for other choices, an aspect of the fundamental right to health, as well as a universally recognized human right, very different from “non-punishable” paths, as assisting in dying. Finally the Author notes how the drama caused by Coronavirus, a few months lather, has brought to light that the foundation of medicine, in reality, is not the patient’s autonomy, his will and the informed consent itself. The same myth of self-determination, as a perspective capable of interpreting the whole reality of medical relationships, has gone into crisis. Moreover many doctors gave their lives to assist the sick, certainly not for the ideal represented by the principle of informed consent or autonomy, but for the reason that doctor’s duty is «the protection of life, physical and mental health of Man and relief from suffering», as many Medical Code of Ethics in the world state. Ultimately, the challenges posed by the pandemic in awakening the sense of humanity and solidarity have also awakened sensitivity to fundamental rights, and in particular to the right to life and health, where the role of medicine and its orientation is crucial. Furthermore, the just fear of «unjust discrimination», which arose in the face of the scarcity of therapeutic resources, could help develop greater awareness of the discriminatory ideology inherent in recent euthanasia claims, which always imply a distinction between worthy and unworthy lives.

KEYWORDS:  Assisted suicide, right to life, right to health, palliative care, human dignity, self determination, informed consent, ethical foundation of medicine, Covid-19 pandemic, scarcity of therapeutic resources