The euthanasia law, adopted by Parliament on January 29, was ruled unconstitutional by the highest court in the Portuguese judicial system, the Constitutional Court.
The ruling prevents the law from being sanctioned and entering into force in the country, but it does not represent the end of the line for the implementation of assisted dying.
Indeed, in the opinion of most magistrates, the problematic point of the law is not the interruption of life itself, but the unclear definition of the criteria according to which it would be authorized.
Announcing the decision, TC Chairman João Caupers stressed that the issue can be resolved in the Assembly of the Republic, provided that lawmakers establish “clear, precise, predictable and controllable” rules for the achievement of euthanasia.
The preventive analysis of the constitutionality of the law was requested by President Marcelo Rebelo de Sousa. Former professor of constitutional law, the head of state, a practicing Catholic, took care to ask the court to rule only on the “excessively indeterminate” nature of the rules which would guarantee access to voluntary termination of life.
The magistrates’ decision to go further, commenting on the central point of the legislation even without being questioned, was seen as a sign of openness to the implementation of euthanasia.
“The right to life cannot be transformed into a duty to live under any circumstances,” they say.
Although in the majority, the understanding of TC was not unanimous. The score was 7 to 5 for the law to be unconstitutional. Among the 12 magistrates of the court, 4 considered that euthanasia violates the constitutional right to life.
However, the understanding prevailing in the Constitutional Court may change in the future. Judges of the Court serve a term of nine years.
Also in 2021, four judges leave: three in July and one in October. Currently, there is one vacant position to be filled.
One of the people responsible for drafting the law, Socialist MP Isabel Moreira, who is a lawyer specializing in constitutional law, said that a new text will be prepared taking into account what was reported by the court.
“It was very positive that the decision had been made on other issues, and it was clear that there was no incompatibility between this law and the principle of the inviolability of human life,” he said. he declares.
However, the deputies do not have a date to present a new version of the law on euthanasia.
For some experts, the fact that the court asked for even more explicit criteria on access to assisted death may mean a final text so restrictive that in practice it would cover few situations.
In the assessment of constitutional law professor Luísa Neto, from the University of Porto, the text of euthanasia will only go through the Constitutional Court if it is limited to cases in which there is an incurable and fatal disease.
“This greatly limits the situations in which assisted dying is admissible, but I think otherwise the law will not pass,” he said in an interview with the newspaper Público.
The option of more closed and more descriptive criteria on the types of situations guaranteeing the “definitive harm” or the degree of suffering that would allow euthanasia to be requested was the route taken by the legislation in Spain, in the process of being approved. .
In Portugal, MEPs do not rule out following a similar approach, even if they say it is premature to make a statement on the new text.
Even in its current version, the approved law was already considered quite restrictive.
Only people over 18, Portuguese or foreign legally residing in Portugal, could request euthanasia.
Assisted death would only be authorized for patients “in a situation of intolerable suffering”, with a definitive serious injury or an incurable and fatal illness. Mental illnesses were not eligible.
In addition to repeatedly reiterating a desire to interrupt life throughout the process, patients would also need to have their requests assessed by at least two doctors, including a specialist in the disease that justifies the request for euthanasia.
We are a family business.
The case would still be evaluated by a special bioethics committee.