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Brief description of the contents of the act
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1. The Portuguese Parliament (Assembleia da República) has been trying since 2019 to decriminalise hastened medically assisted death, which includes medically assisted suicide (the self-administration of lethal drugs by the patient himself under medical supervision) and euthanasia (the administration of lethal drugs by a doctor or health care professional duly qualified to do so).
2. On 9 February 2019, the Assembly of the Republic approved the Decree No. 109/XIV to be enacted as law on the special conditions under which hastened medically assisted death is not punishable and amending Articles 134 [Homicide upon victim’s request] (3), 135 [Incitement or assisted suicide](3) and 139 [Advertising to suicide](2) of the Criminal Code (adopted by Decree-Law no. 78/87 of 17th February 1987 with numerous amendments, https://www.pgdlisboa.pt/leis/lei_print_articulado.php?tabela=leis&artigo_id=&nid=109&nversao=&tabela=leis).
However, it was not promulgated by the President of the Republic. This requested for prior abstract review of constitutionality of several rules of the Decree No. 109/XIV. The main ground for review regarded the excessively indeterminate character of concepts used to describe the conditions of non-punishable hastened medically assisted death. The Article 2(1) of the that Decree stated that, for the purpose of non-punishment, hastened medically assisted death “is such when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, when performed or assisted by health professionals”. The President of the Republic questioned the degree of indeterminacy of the "intolerable suffering" and "permanent injury according to scientific consensus".
On 15 March 2021, the Constitutional Court pronounced the unconstitutionality of the norm regarding the second concept, “on the grounds that it violates the principle that laws must be determinable, as a corollary of the principles of a democratic state based on the rule of law and Parliament’s exclusive legislative competence, arising from the combined provisions of Articles 2 and 165(1)(b) of the Constitution of the Portuguese Republic, by reference to the inviolability of human life enshrined in Article 24(1) of the same Constitution” (Plenary, Ruling No. 123/2021, Case no. 173/2021). The Constitutional Court held that “whether in relation to ‘permanent injury’, its ‘extreme severity’ or…the requirement of a ‘scientific consensus’ on extremely severe and permanent injuries” there is “manifest insufficiency of regulatory specificity in the respective legal hypothesis, thus rendering Article 2(1) of Decree No. 109/XIV, due to its vagueness, inadequate for regulating the conduct of its addressees in predictable and controllable terms” (n.º 48). Conversely, the Constitutional Court found that the concept of “intolerable suffering”, although indeterminate, is determinable according to of the medical profession rules, so it cannot be considered excessively indeterminate (n.º 43, §).
The norms contained in Articles 4, 5, 7 and 27 of the same Decree were consequently pronounced non constitutional, to the extent that the advising doctor, the medical specialist and the Verification and Assessment Committee that intervenes in the clinical and legal related procedure have to decide under the conditions set out in that Article 2, and insofar the Article 27 amends the Articles 134(3), 135(3) and 139(2) of the Criminal Code by decriminalising conducts provided for therein (III. Decision, b), and I. Report, n.º 1).
Following the veto on grounds of unconstitutionality, the Assembly of the Republic renewed its legislative initiative on hastened medically assisted death, approving the Decree no. 199/XIV, which altered the terms under which medically assisted death is decriminalised. It stated that “medically assisted death is considered not punishable when it occurs by decision of the person, of full age, whose will is current and reiterated, serious, free and informed, in a situation of intolerable suffering, with an extremely serious final injury or incurable and fatal disease, when performed or assisted by health professionals” (Article 3(1)). It also added to the Decree an article with definitions (Article 2). These include the definition of “serious or incurable illness” as “a life-threatening illness which is advanced and progressive, incurable and irreversible, and which gives rise to severe suffering intensity” (Article 2-(d)).
The President of the Republic exercised under the terms of article 136(1) of the Constitution of the Portuguese Republic a political veto, considering that Decree no. 199/XIV maintained the requirement of a “fatal illness” to anticipate death, which came from the first version of the decree, but it extends it to “incurable disease” even if it is not fatal, and to “serious disease”. The President asked to the Parliament to clarify whether “fatal disease” is required, or whether it is only an “incurable” or a “serious” disease to have non-punishable to hastened medically assisted death (https://www.presidencia.pt/atualidade/toda-a-atualidade/2021/11/presidente-da-republica-devolve-sem-promulgacao-decreto-da-assembleia-da-republica-sobre-morte-medicamente-assistida/).
3. After the political veto, the Assembly of the Republic issued a new Decree. By the Decree no. 23/XV, it tried to overcome the concerns raised by the veto of the President of the Republic.
The Article 3 (1) of the Decree no. 23/XV stated that a medically assisted death is considered not punishable when it occurs by the decision of a person, of legal age, whose will be current and reiterated, serious, free and informed, in a situation of great intensity of suffering, with a definitive injury of extreme gravity or severe and incurable disease, when practiced or assisted by health professionals. According to its Article 2(f), great intensity of suffering refers to physical, psychological, and spiritual suffering resulting from a severe and incurable disease or permanent injury of extreme severity, of great intensity, persistent, ongoing or permanent and considered intolerable by the person him/herself.
These new normative segments were again subjected to prior constitutionality review at the request of the President of the Republic.
The Constitutional Court, on 30 January 2023 (Plenary, Ruling No. 5/2023, Case no. 5/2023), pronounced the unconstitutionality of the norm contained in Article 2[definitions](f), in conjunction with the rule contained in Article 3(1), both of Decree No. 23/XV, once again on the grounds of infringement of the principle of the determinability of laws, as a corollary of the principles of a democratic state based on the rule of law of legality, in its dimension of the parliamentary reserve of legislative competence, of legal certainty and of the protection of legitimate expectations, arising from the combined provisions of Articles 2 and 165(1)(b) of the Constitution of the Portuguese Republic, by reference to the inviolability of human life enshrined in Article 24(1) of the Constitution (III. Decision, al. a)).
The Constitutional Court considered that it is not clear and certain if the physical, psychological and spiritual suffering required to trigger the procedure leading to medically assisted death is cumulatively, or if it is enough that one of them is present. It stated that the legislator must use an expression that indicates this with absolutely clearly, as required in a State that effectively wants to be a State based on the rule of law (12.2, last §).
The unconstitutionality of the rules contained in Article 2(f) and in Article 3 of Decree-Law 23/XV implied the consequent unconstitutionality of Articles 5, 6, 7 (referring to the medical intervention in the procedure of medically assisted dying - Chapter II: Procedure [Articles 4 to 17]) and the Article 28 (Chapter V: Legislative amendment [to above mentioned Articles of the Penal Code]), insofar as they refer to the conditions set out in the formers Articles.
The President of the Republic returned the Decree no. 23/XV to the Parliament on 6 February 2023 (according to Article 279(1) of the Constitution). The decree may not be enacted unless the Parliament expunges the norms that have been held unconstitutional, or confirms the norms by a majority that is at least equal to two thirds of all Members who are present and is greater than an absolute majority of all the Members in full exercise of their office (Article 279(2) of the Constitution).
The Assembly of the Republic is preparing the clarification required by the Constitutional Court Ruling 5/2023, which is expected by end of March this year.
4. Nevertheless, the following points are already established:
a) The Act whose enactment is at stake introduces the concept of non-punishable hastened medically assisted death (medically assisted suicide and euthanasia) in the Portuguese legal order. It is created in the Portuguese legal order a right to die with medical assistance in certain circumstances, a right to which there is a corresponding state duty to abstain and to perform or assist.
b) It foresees a special administrative procedure, of an authorizing nature, to verify the conditions that, by law, entitle a person to obtain the collaboration of health professionals in hastening their own death; or that allow for their involvement in preparing and implementing the act of hastening a person’s death, at their own request, without fear of criminal prosecution (Articles 4-10).
c) The implementation of assisted suicide and of the patient’s decision requires: (a) a favourable opinion from an advising doctor and an opinion from a specialist in the pathology affecting the patient, whose opinion shall confirm or otherwise that the necessary conditions are met; (b) that the procedure is carried out in a public facility of the National Health Service; (c) that conscientious objection by physicians is possible, (d) that proof is given that the path of palliative care has been offered and rejected by the patient, as well as clinical psychology consultation; and (e) that a favorable opinion on the fulfilment of the requirements and previous phases of the procedure is issued by the Commission for Verification and Evaluation of the Medically Assisted Death Clinical Procedures (an independent body attached to the Assembly of the Republic), which shall verify also a posteriori the terms under which the conditions and procedures set out in this law have been complied ([Articles 4, 7-9, 13 and Article 26). If the patient become unconscious before the scheduled date for the medically assisted dying procedure to take place, the procedure shall be discontinued and shall not take place unless the patient regains consciousness and maintains his or her decision (Article 9(5).
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Comment
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1. The constitutional grounds for hastened medically assisted death in Portuguese legal order
According to the Portuguese Constitutional Court, and the President of the Republic constitutional review requests the Portuguese Constitution neither imposes nor prohibits the legalisation of medically assisted death, and allows relatively broad or restrictive models of it. It is a political choice of the democratic legislature. In accordance to Constitutional Court Ruling 123/2021, “unlike other matters, the Constitution does not impose a concrete agenda here, (deliberately) leaving a very broad scope for the ordinary legislator to make use of its legislative discretion”, what is coherent with a democratic, secular and plural society (32.).
Notwithstanding, there is a divergence on the constitutional grounds and limits to medically assisted death regulation.
For the majority of the judges of the Constitutional Court, under the Portuguese Constitution, there is not a fundamental right to a self-determined death. Based on the constitutional formulation of the right to life in Portuguese Constitution - according to which “human life is inviolable” (Article 24(1)) – and on the recognition, not only of a negative and subjective dimension, but also of a positive dimension – which entails a fundamental principle founded on the dignity of the human person; and a state’s duty to protect life -, the Portuguese Constitutional Court considered that assisted death constitutes a restriction on the positive dimension of the right to life justified by the right to self-determination, enshrined in the fundamental right to the free development of personality (Article 26(1) of the Constitution).
In Plenary Ruling No. 123/2021, the Constitutional Court stated that the right to life “necessarily implies recognition of a binding duty on the part of the State, and in particular the legislator, to protect and promote human life”. And added: “In relation to this, a democratic state based on the rule of law is not neutral and cannot be indifferent, at the risk of negating one of its foundations and compromising its capacity to respect and enforce respect, as well as to guarantee the ‘effective implementation of the [other] fundamental rights and freedoms’ (cf. Article 2 of the Constitution).” (30, § 2). “[I]n the Portuguese constitutional order, third-party assistance in death, even if self-determined, does not amount to a positive constitutional interest, except to the extent that the dignity of the person intending to (be assisted to) die is at stake, namely their actions as an individual responsible for their own destiny in a moment already close to the end” (33, § 2). “[T]he duty to protect the life (as well as autonomy) of those wishing to hasten their death because they are ill, in a state of great suffering and with no prospect of recovery, requires strict discipline as to the situations – the typical cases – that justify, according to the legislative option, access to medically assisted death and robust and adequate procedural guarantees to safeguard the freedom and awareness of the patient and also to ensure the specific verification of the cases envisaged” (33, § 6). In sum, to the majority of the Constitutional judges, assisted dying is envisaged as a restriction to the right to life, to the objective dimension of a good life and not a fundamental right to a self-determined death.
Taking a different view, some judges, in dissenting votes, considered that, in a constitutional order based on human dignity, all fundamental rights must fall within the more general and essential right to the free development of the personality (Article 26(1) of the Portuguese Constitution), including the right to life. They, namely, argued that:
(i) The right to the development of personality, enshrined in Article 26(1), protects the general freedom of action and the capacity for individual self-determination.
(ii) “Even if we exclude the emergence, in our legal system, of the fundamental right to a self-determined death, the question remains as to the extent to which it is lawful for the legislator to recognise the increasing precedence of the right to freely develop personality over a right to life which is, above all, a fundamental subjective right.” (2.2., § 3)
(iii) “[A] dogmatically coherent consideration of the specificity of the right to freely develop personality (ergo the right to self-determination) (…) leads to the conclusion that the demands of fundamental rights, and even equality, require that the legislator be granted a wide scope of discretion in order to regulate the end of life” (3, § 3);
2. The alternative or subsidiarity of the euthanasia and the assisted suicide
Hastened medically assisted death is regulated without “distinction as to the type of agent causing the death or the extent of their actions in doing so” (Ruling no. 123/2021, 17, § 5). The legislator establishes “a categorical and normative parity between two end-of-life practices” (17, § 2), the direct active euthanasia and the assisted suicide. The alternative nature between the two modalities is said to be “understood and framed within a complex framework of legal regulation that includes, namely in a dynamic interaction between the citizen-patient and the state, a special administrative procedure of an authorising nature” (Ruling no. 123/2021, 18, § 1).
The alternative or subsidiary character between direct active euthanasia and assisted suicide was not an issue addressed in the prior review of constitutionality proceedings. However, in some of the explanations of vote, the question was raised. It is argued that, although both methods are feasible, if euthanasia is more harmful than assisted suicide and unnecessary, whenever this is possible, the principle of proportionality requires that the former can only be admitted as a subsidiary method of medically assisted death and not as an alternative method (e.g., Gonçalo de Almeida Ribeiro).
3. The determinability of the prerequisites for hastened medically assisted death
According to the Portuguese legislator and the Constitutional Court, certain material conditions are needed for a person to have access to medically assisted death. These conditions have to be sufficiently determined and specified by an act of the Parliament. As explained by the Constitutional Court, “given the significance of the matter to a fundamental legal good such as human life and the definitive and irreversible nature of the decisions it provides for in that regard, there is particular demand to invoke the requirements of determinability that arise from the principle of a democratic state based on the rule of law” (39, § 1).
The Portuguese Parliament has to clarify, as the Constitutional Court pointed out in Ruling No. 5/2023, if physical, psychological and spiritual suffering required to trigger the procedure leading to medically assisted death is cumulative or if it is enough one of them, and to formulate it in such a way as to leave no room for doubt or misunderstanding (given the greater ambiguity of the conjunction "and" in comparison with the conjunction "or", if the legislator wishes the sufferings to be cumulative, he should use an expression that indicates this absolutely clearly) – 12.2.2.3, § 10.
As highlighted in a dissenting vote, to have a satisfactory description of the material conditions to medically assisted death is a very hard task (Gonçalo de Almeida Ribeiro writes: “With this ruling of unconstitutionality, approving a satisfactory regime in this area, beyond cases of incurable and fatal illness (a boundary which I believe to be arbitrary), will be a challenge as difficult as making a camel go through the eye of a needle” (n.º 8, § 4). However, after Ruling 5/2023, it is clearer the delimitation of substantive conditions to medically assisted suicide the Parliament has to do.
4. The criticism of divergence from common European constitutional standards
Some of Constitutional judges, in dissenting opinions, remarked that “[t]he Ruling's interpretation of the constitutional status of the right to life and of life as a constitutionally protected value is erroneous, firstly because it diverges substantially from common constitutional standards in this area in Europe (and beyond)” (2.1., § 1). They grounded their statement on the following:
a) Whereas in Portugal “the question is whether the if (…) and the how (…) of the legalisation (…) are in conformity with the Constitution, in other geographies the question raised regards whether the total criminalisation of assisted suicide is admissible, in light of the respective constitutions”;
b) The BVerfG, Ruling of 26 February 2020 – 2 BvR 2347/15 et al. (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/02/rs20200226_2bvr234715en.html;jsessionid=BFAD45AC2D6EA5899CBA6070A1090536.2_cid344). The Portuguese judges pointed out that German Constitutional Court, not only recognised a right to a self-determined death, understood as an expression of personal freedom, and the expression of the pursuit of personal autonomy inherent in human dignity.
c) They also quoted the Austrian Constitutional Court case G 139/2019-71 of 11 December 2020 (https://www.ris.bka.gv.at/VfghEntscheidung.wxe?Abfrage=Vfgh&Dokumentnummer=JFT_20201211_19G00139_00&IncludeSelf=False), highlighting the understanding that, in view of the importance, within the framework of its legal system, of the self-determination and will of the individual as regards medical treatment, even in cases where it is indispensable to sustain life, it is not justifiable, in view of the constitutional rights at stake, to prohibit the aiding of suicide without exception and in all circumstances.
d) As a comparative example, the Ruling 242/2019, of 25 September 2019 of the Italian Constitutional Court is also mentioned. Dissenting judges stressed that, “although in a less expansive stance, [the Italian Court] also judged as unconstitutional an indiscriminate criminal repression of assisted suicide, in limited circumstances” (explanation of vote of Mariana Canotilho et al., 2.1., § 4), which considered that if “the primary importance of the value of life does not rule out the duty to respect the patient’s decision to end his or her life by means of suspending healthcare treatments – even when this requires action by third parties, at least on the naturalistic plane (i.e. to detach or power off machines, and to submit the patient to heavy and constant sedation and pain medication) – there is no reason for the same value to become an absolute obstacle, supported by criminal liability, to accepting the patient’s request for assistance in preventing the slower decline which results from the suspension of life support devices” (https://www.cortecostituzionale.it/actionJudgment.do).
Govert den Hartogh, commenting on the German Ruling 2 BvR 2347/15, pointed out (i) that “[a]ll over the world th[e] right [to life] is traditionally held to be inalienable, and even unwaivable”; (ii) and that “[g]enerally speaking, German law is fairly exceptional in the scope it gives to the right to self-determination in ascertaining the meaning of the basic human right, recognised in Article 2(2) first sentence of the Basic Law, the right to life and bodily integrity” (“Decriminalising Assisted Suicide Services: Bundesverfassungsgericht 26 February 2020, 2BvR 2347/15”, European Constitutional Law Review, 2020, 16(4), p. 718, doi:10.1017/S1574019620000309).
Weyma Lübbe (“Der einsamkeitsbedingte Alterssuizid im Lichte des Grundgesetzes”, VerfBlog, 2023/3/13, https://verfassungsblog.de/der-einsamkeitsbedingte-alterssuizid-im-lichte-des-grundgesetzes/, DOI:10.17176/20230313-185307-0.), regarding Ruling 2 BvR 2347/15, argued that it is important to ask “whether there is a regulation that avoids emptying the right to self-determination in the case of autonomous suicidal persons without, conversely, emptying the right to self-determination of the ‘fragile’”. And she added: “Of course, the court can no longer fall back on the reply that the latter are not concerned with the protection of self-determination, but with the protection of life, after it has classified the protection against the implementation of what is actually not wanted as the protection of autonomy. Only by means of this classification did it succeed in dispensing with considerations on the so-called weighing of the right to self-determination with the right to life, which would otherwise have been expected.”
In the Italian Constitutional court's summary of its Judgment 242 of 2019 it is stressed that “the Court confirms the conclusions reached in Order 207 [/2018, https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2018&numero=207], reiterating, first of all, that the criminalisation of assisting suicide is not, in itself, contrary to the Constitution but is justified by the need to protect the right to life, especially of the weakest and most vulnerable persons, which the system seeks to protect by avoiding external interference in an extreme and irreparable choice, such as suicide”.
In Portugal, a bill to legalize hastened death has been under discussion for more than three years. The constitutional difficulty of passing a bill on assisted suicide, as explained, has been due to the insufficient regulatory specificity of the criteria for accessing medically assisted death. It is a problem of the density of the law in a democratic rule of law state. Nevertheless, the divergence as to the fundamental rights involved and their weighting resulted in different dissenting votes and explanations of vote.
In despite of the common or similar understanding of the notions like human dignity, personal autonomy and sanctity of life, “their role in the right-to-die debate depends on their interpretation, reflecting elements from society’s legal, political, cultural, an religious backgrounds” (Derya Nur Kayacan, The Right to Die with Dignity: How Far Do Human Rights Extend?, Springer, 2022, p. 4).
The debate in the Portuguese Constitutional Court on assisted suicide considered legal cases in Germany, Austria, and Italy (in the Ruling 123/2021), and the Spanish[1], Columbian, Australian, and French (in the Ruling 5/2023) regarding the constitutionality of prohibiting or restricting assistance in suicide. Comparative arguments were widely used in the reasoning of the Court's decisions.
The terms of the debate reveal, to a certain extent, ideological alignments in the reading of comparative judicial rulings as if these were not subject to criticism and different analyses in the respective legal orders (e.g., Jones, D. A., Palazzani, L., Bormann, F., & Hofmann, S. (2022). Legal Challenges to Restrictions on Assistance in Suicide in Italy, Germany and Austria: An Ethico-Legal Analysis, European Journal of Health Law, 30(1), 1-25. doi: https://doi.org/10.1163/15718093-bja10086). For instance, Teresa Violante states that “[d]espite this emerging trend in comparative law and the traditional influence that foreign and comparative law has on its case law, the Court ruled conservatively”; and, referring to the intense debate and divergence in the judges' reasoning, writes: “A majority of judges in favor or at least not opposing assisted death cannot agree on the concrete legal regime to implement it” (“From the Legislature’s Margin of Discretion to a Fundamental Right: The Long Road to Assisted Dying in Portugal”, Diritti Comparati, 21.03.2023, p. 2 and p. 6, respectively). This being so, one may ask whether these divergences do not reflect precisely the difficulty of imposing a given reading of the Portuguese Constitution equal to that of German jurisprudence, which is intended to be taken as a model.
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Secondary sources/ doctrinal works (if any)
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- Ames, P, “Portugal's Parliament Votes to Legalize Euthanasia, Again”, Politico, 2021, https://www.politico.eu/article/portugal-parliament-legalize-euthanasia-constitutional-court-objections/
- H. Carneiro A, Carneiro R, Simões C. “’A Morte que Ocorre por Decisão da Própria Pessoa’: Reflexão Crítica sobre os Termos e Conceitos do Decreto nº 199/XIV da Assembleia da República”, Revista da Sociedade Portuguesa de Medicina Interna, 2022, 29(1), pp. 64-9, https://revista.spmi.pt/index.php/rpmi/article/view/524.
- Pereira E, Marina S, Ricou M., “Perceptions of Portuguese Doctors Regarding Hastened Death Scenarios: A Cross-Sectional Study”. Acta Médica Portuguesa, 2022, 36(2), pp. 105-12. https://www.actamedicaportuguesa.com/revista/index.php/amp/article/view/17290.
- Raposo, Vera Lúcia, “Euthanasia please, we are Portuguese”, Journal of Medical Ethics Blog, March 5, 2020, https://blogs.bmj.com/medical-ethics/2020/03/05/euthanasia-please-we-are-portuguese/.
- Vasconcelos, M. J, & Santos, M., “Algumas questões e perspetivas em torno da eutanásia”, in A. S. P. Oliveira & P. Jerónimo (Eds.), Liber Amicorum Benedita Mac Crorie volume II, 2022, pp. 193–204, UMinho Editora. https://doi.org/10.21814/uminho.ed.105.10.
- Violante, T., “Not Yet but Soon: The Portuguese Constitutional Court’s decision on medically assisted death”, VerfBlog, 2021/3/22, https://verfassungsblog.de/not-yet-but-soon/.
- Ribeiro, A. T., & Botelho, C. S. (2021). Portugal. Em R. Albert, D. Landau, P. Faraguna, & S. Drugda (Eds.), Global Review of Constitutional Law, 2020, pp. 242-246, Clough Center for the Study of Constitutional Democracy.
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