• Presentation The Plenary of the Constitutional endorses by a large majority the Euthanasia Law
  • Legislation Congress approves the right to euthanasia by 202 votes to 141

The magistrates of the Constitutional Court (TC), Concepción Espejel and Enrique Arnaldo, framed in their conservative bloc, criticize that the sentence that endorses the Euthanasia Law has recognized "a new fundamental right of self-determination of one's own death in euthanasia situations or contexts."

The Constitutional Court has made public this Thursday the sentence in which it fully endorses the Euthanasia Law of 2021, which has had three dissenting individual votes.

Two of them, de Espejel and Arnaldo, criticize that the TC, instead of limiting itself to analyzing whether or not the norm is constitutional, has enshrined euthanasia "as a fundamental right", exceeding its functions and closing the way "to other possible legislative options in relation to the problem raised" and imposing the norm "as the only model" possible.

Arnaldo admits in his vote that "the right to life" guaranteed in the Constitution "does not derive a prohibition of decriminalization of euthanasia", provided that this is carried out with "due guarantees" and that he does not oppose "a provision of help to die within the framework of the public health system", such as that regulated by the euthanasia law, Although it makes it clear that "it has no basis" to "illuminate" an alleged right to self-determination of one's own death as "a kind of fundamental right".

It thus criticizes what it considers an "artifice" to which the sentence appeals, deriving that right from the "fundamental right to physical and moral integrity", which implies, it says, "devaluing the Constitution", and also lacks a more incisive "scrutiny" of the sentence that "would save the inaccuracies in which the legislator has incurred and avert that danger of undue influence, manipulations and abuses by third parties of which the sentence itself warns".

This supposed right of self-determination of death "would correspond to a correlative duty" of the legislative branch to "contribute to its effectiveness," criticize both magistrates.

Concepción Espejel also criticizes that the resolution does not make "any mention" of "international instruments on human rights" and that it omits "any reference to comparative law", thus silencing in this way, she says, "an evident reality, namely, that in the majority normative option is the prohibition of assisted suicide and euthanasia".

It is ugly in its vote that the sentence does not contemplate at the same level as that mentioned right to self-determination of death "a fundamental right to palliative care" or requires a "sufficient guarantee of the effective availability of the same".

Third individual opinion

The third particular vote to the sentence is of the progressive magistrate María Luisa Balaguer, who, although she is "completely in agreement" with the endorsement of the law, considers that the sentence did not sufficiently develop some foundations.

According to Balaguer, "the ability to decide on the way in which an adult, free, conscious and sufficiently informed person puts an end to his life process derives directly from the proclamation of the dignity of the person."

The logical leap between denying that the Constitution "includes a right to die, and recognizing the right to receive assistance from the State, through the health system, to end life when this implies an expression of the right to physical and moral integrity, cannot be made without assuming that dignity is the determining element of the recognition of that dimension of the fundamental right that, Until now, it had not received express jurisprudential recognition," he adds.

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