The magistrates of the Constitutional Court (TC), Concepción Espejel and Enrique Arnaldo, framed in their conservative block, 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 Constitutional Court, instead of limiting itself to analyzing whether or not the norm is constitutional, has enshrined euthanasia “as a fundamental right”, exceeding its functions and blocking the way “to other possible legislative options in relation to the problem raised” and imposing the standard “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”, as long as it 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 the one 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”.

In this way, he criticizes what he considers an “artifice” to which the sentence resorts, deriving that right from the “fundamental right to physical and moral integrity”, which implies -he says- “devaluing the Constitution”, and also lacks a more incisive “scrutiny” of the sentence that “saves the inaccuracies in which the legislator has incurred and wardes off that danger of undue influence, manipulation and abuse by third parties that the sentence itself warns of”.

This supposed right of self-determination of death “would correspond to a correlative duty” of the legislature to “contribute to its effectiveness”, criticize both magistrates.

Concepción Espejel also censures that the resolution does not make “any mention” of “international instruments in the field of human rights” and that it omits “any reference to comparative law”, thus silencing -he says- “an evident reality, namely, that in the majority normative option is the prohibition of assisted suicide and euthanasia”.

Ugly in his vote that the sentence does not contemplate at the same level as that aforementioned right to self-determination of death “a fundamental right to palliative care” or requires a “sufficient guarantee of the effective availability of the same”.

The third dissenting vote on the sentence is from the progressive magistrate María Luisa Balaguer, who, despite the fact that she is “completely in agreement” with the endorsement of the law, considers that the sentence did not sufficiently develop some fundamentals.

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 vital process derives directly from the proclamation of the dignity of the person”.

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

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