Fundamental Rights in Europe and North-America
(PARTE B – I CAPITOLO – I PARTE)
V. EUTHANASIA
In the Italian juridical system, it is impossible to arrive at an ad hoc position on the
subject of euthanasia.1 Whether the subject consents to the killing, compassionate euthanasia
is regulated as a omicidio del consenziente - homicide of the consenting party - (Art. 579 of
the penal code), with attenuated penalties in comparison to voluntary homicide and with the
exclusion of the application of aggravating circumstances as in Art. 61 of the penal code.
However the case in point of homicide of the consenting party rules out some of the features
present in some circumstances which usually accompany the act of euthanasia, being seen as
causes of invalidity of the consent, it serves, besides persons of less than eighteen years of
age, for «a person infirm of mind, or who finds himself in a condition of mental deficiency,
because of another illness or from alcohol or substance abuse» (Art. 579, Par. 3, of the penal
code).
In such cases, it is necessary to apply the more rigorous regulation of common
voluntary homicide2, without expressly taking into account the subjective motive of mercy
and the objective conditions of a fatal illness as attenuating circumstances, either on the basis
of Art. 62b of the penal code, which takes into consideration the general extenuating
circumstances, or on the basis of Art. 62 of the penal code which in Par.1 takes into
consideration the extenuating circumstances of «having acted through motives of particular
moral or social value». In the face of these extenuating circumstances, in cases of mercy
killing there are usually specific aggravating circumstances such as familial relationships
between the killer and the victim, the use of poisonous substances or premeditation, in which
case the prevailing verdict may lead to the application of the maximum penalty.
Cases of euthanasia seem easily classed as related to criminal cases in point of assisted
suicide, regulated jointly with the instigation to suicide in Art. 580 of the penal code, which
occur when the agent concurs in the execution of death by furnishing the material means or
any other form of facilitation3.
As things stand, the material gap – that is the absence of regulations on the subject of
1
The word euthanasia in the current debate is used exclusively in the sense of voluntary compassionate
euthanasia, that is of painless killing, brought about by the request of the victim, through compassion for the
special circumstances which invoke it. One distinguishes in the legal position between the case where one asks
that medical treatment is no longer given, even if this will lead to his/her death (passive euthanasia) and the case
where one asks for the application of a treatment that will lead directly and without pain to death (active
euthanasia).
2
In this sense, see CORTE DI CASSAZIONE, 18 November 1954 [(5), 151 ff.].
3 on the distinction between homicide with consent and assisted suicide, see Corte di cassazione, 6 February 1998
[(7), 456ff]
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Fundamental Rights in Europe and North-America
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euthanasia – constitutes, in the Italian system, a false problem: the regulation exists and is,
precisely, as dictated by the penal code, the hastening even by a few minutes of the moment
of death, or the omission of interventions which could have prolonged life for a while, even if,
pietatis causa, they integrate in the case in point penalties punishable in a very severe
manner3.
But, in contrast to the rigour of the penal regulations, there is, in the hospitals and in
the courts, a daily reality where there are strong signals of widespread acceptance in the social
conscience of the practice of euthanasia aimed at allowing a dignified death to those who find
themselves in the final stages of an incurable illness. The real problem around which the
whole Italian doctrinal debate circles is, then, that of evaluating the existence of any possible
gap, not material, but axiological (ideological, substantial) in the current system: that is to put
to the test the adequacy of the current regulations in the light of the principles drawn from the
Constitution.
V.1. THE RIGHT TO DIE (ACTIVE EUTHANASIA)
The highly controversial question is whether one can find a constitutional cover for a
«right to euthanasia», that is exercised through an active choice as to the time and manner of
one’s own death, even if one requests the help of a doctor or another third party to procure,
assist or accelerate the lethal event.
The most widespread opinion in the Italian constitutional doctrine is the one that holds
that a hypothetical law which recognises the legality of euthanasia, and with it a right to die,
would offend inevitably against the letter and the spirit of the Italian Constitution in its
personalised character, from the moment that Art. 2 of the Constitution, recognises and
guarantees the inviolable rights of man, prohibits absolutely, albeit implicitly, the fulfilment
of any act directed at interrupting or abbreviating the life of a person. In particular, a reading
combining Art. 2 with Art. 32 of the Constitution – which imposes «health as a fundamental
right of the individual» and «prohibits the violation of the limits imposed by respect for the
human being» - would lead to the conclusion that the Constitution intends to safeguard the
right to life as a right to physical and biological existence, from conception to death, without
either quantitative or qualitative ulterior specifications, and therefore also to life in the
4
With the specification of right that, according to Law 29 December 1993, no. 578 (regulations for the
verification and certification of death), published in «Gazzetta Ufficiale», no. 5, 8 January 1994 – through which,
ex Article 1, «death is identified with the irrevocable cessation of the functions of the brain» - the possibility of
speaking of the killing of a person, and therefore of euthanasia, is excluded when on e intervenes with direct
actions to «unplug the life support system» in subjects with a flat encephalogram, already having suffered a
cerebral death.
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Fundamental Rights in Europe and North-America
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terminal phases of illness. In consequence any constitutional cover for a «right of active
choice over one’s own death»would be precluded4, a major reason being if such a right is
configured as «the right to be killed» by a third party, on whom would be laid a corresponding
– and clearly unlawful - «duty to kill»5.
But the doctrine is anything but unanimous on the reading that comes from the
constitutional dictates about the «right to die and to be helped to die», and there are those who
give an interpretation diametrically opposed to the same constitutional regulations and the
same principle of «respect of the person», and who see, in fact, precisely in the joint reading
of Articles 2 and 32 of the Constitution the legitimating – rather than the excluding - basis of
the right to the active choice of one’s own death.
Those who make such a reading of the constitutional charter are convinced that life
itself is protected, not only in the merely biological sense of’«being alive», but in the
weightier sense of the biographical fact of’«having a life» which is significant and rewarding
for the person who lives it: the respect of the person, the respect of their freedom, the respect
of their dignity as sanctioned in the Constitution would impose, in consequence, also the
respect of a decision which goes against their own life, qualifying such a decision in fact as an
authentic «right». And it would undoubtedly be a violation of the principle of equality (Art. 3,
Par. 1of the Constitution) if such a right were denied precisely to those who, finding
themselves in an impossible position to procure their own death (because for example,
although their intellectual functions may be unimpaired, their body is totally paralysed), or
not wishing to go through a long and protracted period of dying (such as might happen by
refusing food or other treatment which keeps them alive), ask other persons to help them carry
out their wish in the quickest and least painful way possible6.
V.2. Right to refuse treatment and the right to be left to die (passive euthanasia)
Less ambiguous are the indications that can be drawn from the basic Charter as to the
definition in law of the right to be allowed to die.
Art. 32, Par. 1 of the Constitution defines health both as a «fundamental right of the
individual» and as in the «interests of the community», such that the question could arise if, in
case of conflict between the individual profile and the social profile, health as a right or as a
4
NICOTRA GUERRERA [(5), 147].
D’AGOSTINO [(2), ]; D’ALOIA [(3), 615].
6
ALGOSTINO [(1), 3218].
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Fundamental Rights in Europe and North-America
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duty should prevail. For the jurisprudence7 and the clearly dominant doctrine8, Par. 2 of Art.
32 in the Constitution – for which «nobody can be obliged to follow a specific health
treatment unless by the provisions of law», and in no case may the law violate «the limits
imposed by respect for the person» - removes any doubt on the subject: the constitutional
regulation (often read jointly with Art. 13, Par.1 of the Constitution, which guarantees the
inviolability of personal liberty) becomes almost unanimously interpreted in the sense that
health treatments can be legitimately imposed only in exceptional and absolute cases in which
there is a law to provide for it, and that which is necessary to safeguard public interests – in
primis, the health of other associates – not otherwise guaranteed (other than in cases in which
the justification of the state of necessity applies). In all other cases, the Constitution gives
absolute priority to the
principle of individual self-determination, such that any health
treatment administered in absence of or contrary to the consent of the right-holder would be
illegal, even if it is to safeguard his well-being9.
Every patient, then, has the sanctioned constitutional right to have his refusal of
diagnostic and therapeutic actions respected; everyone has the right not to follow treatment;
the right to loss of health; the right, also, to be allowed to die10. This is the negative
implication of the right to health guaranteed in the Constitution. In this way the refusal of a
patient who is legally capable11, conscious and informed12, not only renders the abstention of
the doctor from providing care lawful, but also a duty; and the conduct of the physician who
nevertheless decides to follow a medical or surgical procedure is to be considered
unacceptable as much constitutionally as ethically, and as such to commit, in the worst case, a
penal offence ex Article 610 of the penal code or another crime against individual freedom,
constituting violent coercion to undergo something explicitly refused.
If the principles that inform the Constitution do not allow a generalised and
indiscriminate imposition of the duty to be healthy or the duty to life, this does not mean that
7
CORTE CONSTITUTIONALE, 22 Cctober 1990, no. 471 [(1), 25 ss.]; CORTE CONSTITUTIONALE, 18 April 1996,
no.118 [(4), 18 ff.]; CORTE DI CASSAZIONE, 15 January 1997, no. 364 [(6), 771 ff..].
8
D’ALOIA [(3), 611]; LUCIANI [(4), 9];
9 This reflection on Article 5 of the civil code does not lead to different results (approved by Royal Decree, 16
March 1942, no. 626), which forbids acts of disposal of the body which «cause a permanent diminution of
physical integrity». According to the dominant interpretation, in fact, this article would forbid only positive acts
of disposal of the body, of self-mutilation, not also the negative ones, which first and foremost is the refusal of
medical treatments.
10
D’ALOIA [(3), 611]; LUCIANI [(4), 9].
11
In the case of an incapable subject, because he/she is a minor, a right to refuse treatment cannot be made by
the parents, in that their power with regard to the minor is not depicted «as […] personal liberty, but as a right
and a duty which finds in the interests of the child, its functions and its limits.» (CORTE CONSTITUTIONALE, 27
March 1992, no. 132 [(2), 9 ff..]). In the law of merit, CORTE D’ASSISE DI CAGLIARI, 10 March 1982 [(7), 27 FF..]
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Fundamental Rights in Europe and North-America
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in the Italian juridical system there is a principle of indifference in force towards the
citizens13. On the contrary, the objective of material and social solidarity that permeates
throughout the fundamental Charter summarises in a paradigmatic manner the awareness of
the inseparability of the safeguarding of rights and of the guarantee of the material conditions
for a dignified life (Art.3, Par. 2 of the Constitution). If a State that wants to commit itself
realistically to the protection of the right to life, must stop short of a free and conscious
choice, even extends to the point of renouncing life, then it must be held at the same time to
free the individual from forms of privation which could lead him/her to come to the choice of
death under the tormenting pressure exercised by conditions of need and suffering and from
the impossibility of insuring for himself and his family a dignified life, even in conditions of
illness, invalidity, or old age14.
Encouraging palliative care and therapies to control pain; creating and guaranteeing
systems for assistance and material and psychological support for the terminally ill and for
their families constitute duties of the Italian State that emerge clearly from the constitutional
Charter, even if today these objectives are still for the most part unachieved. Fulfilling them
would not cancel the requests for euthanasia, but would constitute at least a guarantee that, for
those who continue to ask for it, death is not an unavoidable choice without dignified
alternatives.
Documentation
Constitutional regulations for reference:
Articles 2; 3, 1°-2° paragraph; 13, 1° paragraph; 32, 1°-2° paragraph, Constitution.
Decisions of the Constitutional Court and the Supreme Court:
1) CORTE CONSTITUTIONALE, 22 October 1990, no. 471, «Gazzetta Ufficiale», 31-10-1990, I
special series, no. 43, 25 ff.; 2) CORTE
CONSTITUTIONALE,
27 March 1992, no. 132,
«Gazzetta Ufficiale», 8-4-1992, I special series, no. 15, 9 ff.; 3) CORTE CONSTITUTIONALE,
16 May 1994, no. 180, «Gazzetta ufficiale», 25-5-1994, I special series, no. 22, 19 ff.; 4)
CORTE
CONSTITUTIONALE,
18 aprile 1996, no. 118, «Gazzetta Ufficiale», 24-4-1996, I
special series, no. 17, 18 ff.; 5) CORTE
DI
CASSAZIONE, 18 November 1954, in «Foro
italiano», 1955, II, 151 ff; 6) CORTE DI CASSAZIONE, 15 January 1997, no. 364, in «Foro
italiano», 1997, I, 771 ff.; 7) CORTE DI CASSAZIONE, 6 February 1998, in «Foro italiano»,
12
13
CORTE DI CASSAZIONE, 15 January 1997, no. 364 [(6), 771 ff..].
In this sense, see CORTE CONSTITUTIONALE, 16 May 1994, no. 180 [(3), 19 ff.].
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1998, 456 ss.; 8) CORTE DI ASSISE DI CAGLIARI, 10 March 1982, in «Foro italiano», 1983,
II, 27 ss.
Bibliografia:
1) ALGOSTINO A., I possibili confini del dovere alla salute, in «Giurisprudenza
constitutionale», 1996, 1006 ff.
2) D’AGOSTINO F., Diritto e euthanasia, in «Bioetica», no.1, 1999, pp. 94 ff.
3) D’ALOIA A., Diritto di morire? La problematica dimensione constitutional della «fine
della vita», in «Politica del right», no.4, 1998, 608 ss.;
4) LUCIANI M., Diritto salute – diritto constitutionale, in Enciclopedia giuridica, XXVII,
Roma, 1991, 1 ff.;
5) NICOTRA GUERRERA I, «Vita» e sistema dei valori nella Constitutione Milano, 1997.
14
D’ALOIA [(3), 621]; NICOTRA GUERREREA [(5), 148ff.]
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