Abstract
The Organic Law 3/2021 on the regulation of euthanasia is the result of the debates on end-of-life care and death with dignity in the Spanish Parliament. One way to assess the correctness of this law is to analyse the arguments used in the legislative debates. The present chapter undertakes such an analysis from a twofold perspective: firstly, by examining the rationality of those arguments, and secondly, by examining what models of debate shaped the parliamentary discussion of the bill. Knowing the reasons for and against this law and how the legislators have argued them offers guidelines for understanding the parliamentary task, interpreting the law and reinforcing the legal guarantees for its addressees. Furthermore, it allows the parliamentary argumentation to be characterised as a deliberative system and also allows the suggestion of improvements for future legislative processes.
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Notes
- 1.
Approved on 24 March 2021. Official State Journal (BOE) no. 72, 25 March 2021, Sect. I, pp. 34037–49.
- 2.
Cf. Draft Law 122/000020. Draft Organic Law for the regulation of euthanasia, submitted by the Socialist Parliamentary Group (Boletín Oficial de las Cortes Generales, Congress, XIV Term, Series B: Draft Laws (Proyectos de Ley), no. 46–1, 31 January 2020, pp. 1–11).
- 3.
- 4.
For ease of reference and notation, I will refer to the parliamentary debates (Congress and Senate) in chronological and abbreviated form, indicating the debate number followed by the page or pages corresponding to each argument:
-
D1. Congress Record, XIV Term, Plenary, no. 7, 11 February 2020, pp. 27–44.
-
D2. Congress Record, XIV Term, Plenary, no. 43, 10 September 2020, pp. 34–57.
-
D3. Congress Record, XIV Term, Committees (Justice), no. 249, 10 December 2020, pp. 1–22.
-
D4. Congress Record, XIV Term, Plenary, no. 72, 17 December 2020, pp. 1–20.
-
D5. Senate Record, XIV Term, Committees (Justice), no. 146, 25 February 2021, pp. 1–26.
-
D6. Senate Record, XIV Term, Plenary, no. 43, 10 March 2021, pp. 93–131.
-
D7. Congress Record, XIV Term, Plenary, no. 89, 18 March 2021, pp. 1–33.
-
- 5.
Cf. Draft Law 122/000060. Draft Organic Law on euthanasia, submitted by the Unidos Podemos-En Comú Podem-En Marea Confederal Parliamentary Group (Boletín Oficial de las Cortes Generales, XII Term, Series B: Draft Laws, no. 77–1, 30 January 2017, pp. 1–11; Draft Law 122/000239. Draft Organic Law on the regulation of euthanasia, submitted by the Socialist Parliamentary Group (Boletín Oficial de las Cortes Generales, XII Term, Series B: Draft Laws, no. 270–1, 21 May 2018, pp. 1–11); Draft Law 122/000030. Draft Organic Law on euthanasia, submitted by the Unidos Podemos-En Comú Podem-Galicia en Común Confederal Parliamentary Group (Boletín Oficial de las Cortes Generales, XIII Term, Series B: Draft Laws, no. 62–1, 22 July 2019, pp. 1–11.
- 6.
“[T]he purpose of this regulation is not only and primarily a tool for decriminalization of an exception to the provisions of the Criminal Code in Article 143, nor is it only a provision in the field of health law with the purpose of including a certain service in the common services of the National Health System; no. Both aspects are included in the law, but not as a main purpose, but as a consequence of a more far-reaching purpose. As explained in the explanatory memorandum, the purpose of this bill is to introduce a new right, yes, by means of the detailed regulation of euthanasia or legally acceptable euthanasic practices under demanding and regulated requirements, procedures and guarantees that reach all those involved: the patient himself—and, therefore, his family—and the health care team, if any” (D5, p. 10).
- 7.
Cf. D2, p. 45; D3, p. 8; D6, p. 113.
- 8.
“If we consider it properly—and this is a legal-technical point we can discuss—we do not find ourselves before what we would call a mere negative freedom born of the constitutional principle of autonomy of will, the will in this case to stop suffering and to anticipate death, which is obvious. What the law makes clear from its first article is that its object is a right, a right that is precisely defined in Art. 4” (D5, p. 10; cf. also D6, p. 100).
- 9.
“To strengthen the argument of constitutionality, let us begin by recalling the basics. Our Constitutional Court recognized very early on, in the judgment of 11 April 1985, that life cannot be understood in any case as an unconditional imperative, because, by definition, in a system of rights there are no rights or duties that can be considered absolute, without any limitation, and let us add that in the constitutional hierarchy of legal goods life is, of course, a first-order good, the first as a de facto chronological condition of all the others, but the axiological priority value constitutionally speaking in our system is freedom. The question is whether it is possible then to speak of this right to euthanasia as a constitutional right, and in this we can be helped by the evolution of comparative jurisprudence, which has helped our own constitutional jurisprudence to evolve. In comparative constitutional jurisprudence, and in particular that of the European Court of Human Rights, starting with the Pretty case, and especially since 2011, the Haas v. Switzerland case, it is held that the duty to live cannot be imposed on those who freely and consciously refuse to continue living, that is, it is recognized that the public authorities have the duty to abstain and prevent the death of those who freely and consciously express this decision, and this is consistent with respect for the principle of autonomy of the will of the patient” (D5, p. 11).
- 10.
This law “lacks completeness and depth of reflection. It encompasses everything in the misleading and idealized concept of euthanasia, when euthanasia and assisted suicide are two different processes, in health, technical and administrative terms. In a law like this one—surely in all of them, but in this one even more so—it is necessary to be exquisite, careful, very fine-tuned; great conceptual clarity is needed, because without clear concepts there can be no possible dialogue” (D5, pp. 17–18).
- 11.
“And I was going to ask you here today, ladies and gentlemen of the Socialist Party, why are you so afraid to mention assisted suicide? Why? Why not call the law as I thought it was intended, that is, to regulate euthanasia and assisted suicide, without forgetting or masking anything? And it turns out that, mind you, it is of such poor regulatory quality that I personally understood—and I certainly have spent a lot of time on this, as have others, too—that the law regulated the two clinical processes at the end of life pending regulation: euthanasia and assisted suicide, and it turns out that it does not. You explained it to me, some leaders of the Socialist Party: that it only regulates euthanasia, as its title says. Although, yes, we have innovated a lot, we have approved euthanasia as everybody understands it, that is, as the causation, of the death of a person who fulfills certain requirements at the hands of third parties, and also self-euthanasia, the self-causation of death by a person in the same situation” (D6, p. 111; D6, p. 114).
- 12.
Cf. D5, p. 23; D6, p. 98.
- 13.
“We insisted on the concept of medical assistance in dying. Why? Because we considered that it was not just an aid in dying, an individual aid, a loose aid, an aid that anyone can exercise, but that the architecture of this law should contemplate precisely that it is a medical aid. And when we include the medical concept, we are talking about a health criterion, about legal health coverage that means that this person who has agreed, through the conditions set out in this law, to end their life, is under an umbrella that is purely marked, legislated and defined with health care. For this reason, although it has not been included in the articles, by including in the preamble this definition that whenever it is said aid in dying it is a medical aid in dying, I believe that this is clear and that is why this agreement is interesting” (D3, p. 4).
- 14.
“And returning to disability, Article 3 includes the expression ‘incapacitating’. Well, the way the current text of the proposal is worded, it is seriously detrimental to people with disabilities. This expression, this word, incapacitating, stigmatises people with disabilities and the consequence is that this law is not in accordance with the mandates, values and principles of the International Convention on the Rights of Persons with Disabilities. Yes, ladies and gentlemen, it makes it impossible, we are talking about a singling out, a singling out of all persons with disabilities. And I ask you, is it not often the conditions proposed to us by the State that lead us to this? Incapacitating, ladies and gentlemen, it does not contribute anything, it confuses and it points at [people with disabilities]” (D6, p. 115).
- 15.
“[A] further demonstration that the law has been passed in an absolutely excessive and, of course, unacceptable rush. We proposed that, in the case of euthanasia, it should be the person called the responsible doctor in the law who injects the drug—by the way, as happens in Holland, the model you say you have been guided by—because the law does not specify who is going to do it. And we did this because we consider it important in itself and [we] also [consider it important] to know who can hold a conscientious objection, because if we do not know who the ultimate agent is, the direct agent who provides the aid in dying, we will not know who can object either” (D6, pp. 111–112).
- 16.
Cf. D3, p. 3.
- 17.
“For us, the amendments relating to all the prior control that many groups have specified and specified during all the drafting work are very important, above all, the requirement of prior control, despite the fact that the government has changed the terminology and has changed from calling it prior control to control of guarantees. We see that the terminology has been changed, although the function, which is what we considered important, has not been changed” (D3, p. 7).
- 18.
Cf. Atienza (1997), p. 29, who, as I noted above, treats jointly both levels and speaks of “communicative or linguistic rationality”.
- 19.
“The law starts from an initial distinction that you insist on confusing, by presenting two cases that are, in any case, distinct and complementary, as opposing and incompatible. Palliative care and medical assistance in dying, the object of the law. The distinction is so clear that it is not worth going into it at length. Our group, like other groups, wants palliative care to be improved, but we know that it has a different purpose from the remedy needed by those who, because of certain conditions and in certain situations, want to be helped to die, and that is why we are proposing this law” (D6, p. 99).
- 20.
“The second confusion consists of pretending that this law implies a contrast between the defence of life and freedom or the autonomy of the will. Ladies and gentlemen, there is no such opposition in this law; what is more, precisely because we have the utmost respect for the legal good that is life, we respect the genuine right to decide to leave it, which corresponds to the subject himself, to no one else” (D6, pp. 99–100).
- 21.
“[A] third confusion, which consists of maintaining a notion of the right to life as something sacred, which in reality becomes a duty, a duty for the subject himself and even a duty for the State, and this is not the case. Our constitutional jurisprudence, comparative jurisprudence and the jurisprudence of the European Court of Human Rights make it unequivocally clear that there is no such duty to live, let alone an absolute duty” (D6, p. 100).
- 22.
“[A] fourth confusion, that of thinking that in any case we should not speak of a right, but of a freedom to die understood as a negative freedom, of non-interference. […] [L]et me recall that freedom for a large part of the citizenry is something empty, without moral or political significance when they are unable to exercise it because they lack the means and resources to do so. This abstract, basically paternalistic freedom is what Anatole France used with his well-known sarcasm when he wrote: All the poor have the freedom to starve to death under the bridges of Paris. The purpose of this law is to make the right to decide to die one’s own death available to everyone, whatever their means and possibilities, and to make the exercise of this right available to anyone who needs it. A highly personal civil right that does not consist of an abstract modality, but what in contemporary rights theory is identified with a claim that is so justified that it is understood that the public authorities must guarantee it by means of enforceable positive benefits. It is therefore a right that carries with it the power to demand from the public authorities not only the abstention from interference, but also the provision of assistance” (D6, p. 100).
- 23.
“That is why they have hijacked the debate and the law. And they are going to pass a frivolous law, a rushed and botched law, without knowing in depth the consequences of their actions. […] Today you are crossing a red line, which will substantially affect the life and death of Spaniards. Today you choose to be able to intentionally provoke the death of those who suffer, instead of legislating, budgeting and going deeper into alleviating their suffering through palliative care and allowing for a dignified death” (D3, p. 13).
- 24.
Cf. D5, p. 8; D5, pp. 17–18.
- 25.
Cf. D5, p. 8; D6, p. 124.
- 26.
Cf. D6, p. 114.
- 27.
“[W]hen a law contains defects in legislative technique, the quality of legislation and legal certainty are impoverished, and that is what we think is happening to this law” (D5, pp. 17–18). On legal certainty cf. also D6, p. 121.
- 28.
“The alternative to euthanasia is palliative care. According to the definition of the World Health Organisation, palliative care means improving the patient’s life in multiple aspects, i.e. we have to remove suffering not only on a physical level, but also on a psychological, social and even spiritual level” (D6, p. 95).
- 29.
“When this law arrived in the Senate, we were surprised to see that the use of the split language had disappeared; […] we cannot consider this as a technical observation, but as an ideological statement. The use of non-sexist language is not optional, it is a commitment of almost all the groups and parties, it is a commitment of this House, it is what society demands and it is what the law requires” (D6, pp. 115–116).
- 30.
Cf. D1, pp. 27–28.
- 31.
“To strengthen the argument of constitutionality, let us begin by recalling the basics. Our Constitutional Court recognized very early on, in the judgment of 11 April 1985, that life cannot be understood in any case as an unconditional imperative, because, by definition, in a system of rights there are no rights or duties that can be considered absolute, without any limitation, and let us add that in the constitutional hierarchy of legal goods life is, of course, a first-order good, the first as a de facto chronological condition of all the others, but the axiological priority value constitutionally speaking in our system is freedom” (D5, p. 11).
- 32.
“The question is whether it is possible then to speak of this right to euthanasia as a constitutional right, and in this we can be helped by the evolution of comparative jurisprudence, which has helped our own constitutional jurisprudence to evolve. In comparative constitutional jurisprudence, and in particular that of the European Court of Human Rights, starting with the Pretty case, and especially since 2011, the Haas v. Switzerland case, it is held that the duty to live cannot be imposed on those who freely and consciously refuse to continue living, that is, it is recognized that the public authorities have the duty to abstain and prevent the death of those who freely and consciously express this decision, and this is consistent with respect for the principle of autonomy of the will of the patient” (D5, p. 11).
- 33.
Cf. D2, p. 52.
- 34.
“We are faced with a legislative proposal on which we are going to have to work exhaustively, meticulously, because we have to respect constitutional rights: the fundamental right to life, the right to freedom and the right to personal dignity. Furthermore, we have to ensure that it is a law that guarantees healthcare professionals. We are talking about the very important issue of individual freedom. Today we are putting people at the centre, something that any liberal should defend without hesitation. We all have the right to a dignified life, but we also have the right to leave life with the same dignity” (D1, p. 37). Cf. also D1, p. 27.
- 35.
Cf. D2, p. 44.
- 36.
“The legislative initiatives of the parliamentary groups are just as legitimate as the legislative initiatives of the Government. The Standing Orders state in what areas the parliamentary groups cannot take legislative initiatives, and the Socialist Group, because it is familiar with the Standing Orders, obviously does not do so, but it does in this area. With regard to the fact that this is the third time it has come up and the third time we have had to present this initiative, it is because of some trickery that caused it to fall on two occasions, and let us hope that this time it does not happen. Furthermore, when the People’s Party was in government, it also presented organic laws here on its own initiative” (D1, p. 31).
- 37.
Cf. D2, p. 49.
- 38.
“Ladies and gentlemen, they have been afraid of social debate. They have processed the law through the back door; the government has not even dared to bring it in. They have done so at night and with malice aforethought in the midst of a terrible pandemic, when more than eighty thousand people have died; at the most inopportune time in our history, when many people without means, without care and in many cases in absolute solitude have died. Perhaps it hides the process or the failure of the management of vice-president Iglesias, who has allowed the SOS of the centres to be ignored during these nine months in order to confront the COVID. What a social shield!” (D3, p. 12).
- 39.
“Ladies and gentlemen, you should be aware that the Socialist Party has consciously and voluntarily—absolutely deliberately—avoided all the relevant, indispensable, ethical information—obligatory, I would say—in order to take a decision of these consequences. Ladies and gentlemen, Spanish society must know that the Socialist Party has deliberately sought to keep this debate from Spanish society, from all Spaniards, and intends to sneak in, through the back door, without all the guarantees to which Spanish society is entitled, a serious regulation which will forever change the idiosyncrasy of our society, our social services, our health services, our society, in short, and the essential trust in the doctor-patient relationship” (D1, p. 37).
- 40.
“A legislative bill [submitted by the government] (proyecto de ley), ladies and gentlemen, unlike a parliamentary bill (proposición de ley) such as this one, needs to give the citizens affected a hearing, to obtain as many contributions as possible from individuals and entities, and also from the organisations and associations recognised by law that bring together or represent the people whose rights or legitimate interests would be affected by the regulation. In this way, ladies and gentlemen, the opinion of the Council of State and other bodies and institutions is avoided in such an important matter as this, which is clearly related to the fundamental rights enshrined in Articles 10, 14 and 15 of our constitutional text. Where are the reports on consistency with the rest of the national legal system and that of the European Union? Where is the legal report that includes the express repeal of rules or the recasting of others? Where are the reports from the general councils of professional associations in this country? Where are the reports from scientific societies and health unions? Where is the Spanish Bioethics Committee? Where is all this information, ladies and gentlemen, which is essential if this House is to be able to take a fair and responsible decision?” (D1, p. 37).
- 41.
“Its aim is to carry out a cultural transgression and to implant the culture of discarding and death, a culture, by the way, that is contrary to the essence of the social order and the democratic constitutional State” (D3, p. 9), which has “broken the main foundation and essence of the social and democratic order: the right to life” (D4, p. 14). “Basically, what this law produces is the destruction of the bases and foundations of a society that needed to include the right to life in the constitutions, after the excesses of the National Socialist and Communist regimes in the 20th century” (D4, p. 14).
- 42.
“We believe that the right to die is a right that you have invented, it is not a right that exists” (D2, p. 42).
- 43.
“Spanish society is faced with this law, ladies and gentlemen, which has to be processed in this obscurantist way and without guarantees because it is a matter of dubious constitutionality due to the fundamental rights involved: the right to life, the right to physical and moral integrity, the right to the principles of human dignity and the free development of personality and the value of freedom. Why, ladies and gentlemen, has the Council of State not been asked for a report? I will tell you. Because the Government clearly doubts—clearly doubts—that its reports and consultations would be supportive of the legality of the Government’s intentions and because these State institutions could question this text as (…) clearly unconstitutional (…), due to the fundamental rights it affects and because it could also affect the constitutional framework (bloque de constitucionalidad), for example the competences on health transferred to the Autonomous Communities, in which case this opinion [of the Council of State] would be mandatory. (…) [And further objections can be raised in the light of the] Law on Transparency, Access to Public Information and Good Governance and its implementing regulations” (D1, p. 29). Cf. also D3, p. 11.
- 44.
- 45.
Cf. D3, p. 4.
- 46.
“Euthanasia is not an imposition, it is a right; no one is obliged to exercise it and, on the other hand, we are all obliged to respect its exercise” (D2, p. 52). Cf. also D2, p. 45; D3, p. 8; D4, p. 13; D6, pp. 113 and 127.
- 47.
The decriminalisation of medical euthanasia is “a matter of urgency to give legal cover to conduct that the vast majority of the population is demanding. It is socially urgent because the lack of legal solutions is unnecessarily and cruelly prolonging the suffering of hundreds of people in unbearable life situations. If we do not give way to this law, the social inequality that is occurring in the last years of life will continue to be maintained” (D3, p. 2).
- 48.
Cf. D2, p. 41, critically responding a contrario sensu to the opponent’s proposal.
- 49.
Cf. D5, p. 8; D6, p. 124.
- 50.
“The proponents of the LORE are a danger to our democracy, not only a danger to the unity of Spain, the economy or health, they are a danger to our lives, and they do so at a time when 70,000 families are mourning their dead. This law does not serve a legitimate purpose; it is a breach of the foundations of our constitutional order, the most important of which is life” (D3, p. 9).
- 51.
Cf. D6, p. 97.
- 52.
“Euthanasia is the failure of the healthcare system that can offer no alternative to the patient’s health problems, except death” (D5, p. 4). Cf. D6, p. 95.
- 53.
Cf. D7, p. 18. Cf. also D4, p. 14.
- 54.
Cf. D1, p. 44; D2, p. 42. “Euthanasia, assisted suicide, is a defeat for all of us” (D2, p. 43).
- 55.
Cf. D1, p. 44; D3, p. 13; D4, p. 8.
- 56.
Cf. D2, p. 42.
- 57.
Cf. D6, p. 97, p. 128.
- 58.
Cf. D2, p. 38.
- 59.
“The legalisation of euthanasia, ladies and gentlemen, definitively denatures the ethics of the medical profession. The task of doctors used to be only to save lives; now, with this contribution of yours, it will also be to destroy them” (D2, p. 36). Cf. also D7, p. 19.
- 60.
“[T]his law violates the Constitution and ethics, it is eugenic, it is illegitimate and it is an attack on an age-old profession such as the medical profession” (D7, p. 19). “[A] law that will attack family bonds and the doctor-patient relationship; a law that will attack and put pressure on the weakest in our society, the poorest and those who are alone. That is what this law will do, and it will produce an unmanageable slope towards death” (D1, p. 44). Cf. also D1, p. 33.
- 61.
Cf. D5, p. 7; D7, p. 20.
- 62.
“This law will have terrifying consequences, it will break the necessary trust between doctor and patient, it will deteriorate social and family relationships to the point that your child can become your threat. It is an attack on our healthcare system, it is a tragedy for Spain and for the Spanish people” (D4, p. 14). Cf. also D1, p. 44.
- 63.
Cf. D2, p. 53; D6, pp. 125 and 131.
- 64.
Cf. D1, pp. 40–41; D3, p. 2.
- 65.
Cf. D5, pp. 13 and 21, 23; D6, p. 102.
- 66.
The LORE is a “very guaranteeing” (muy garantista) (D6, p. 106), “extremely guaranteeing” (D3, p. 15), “totally guaranteeing” (D4, p. 14; D5, p. 24), or “absolutely guaranteeing” (D4, p. 16) norm.
- 67.
“They justify introducing this proposal on the grounds of social support. I believe it is inopportune, at a time when we have experienced a terrible pandemic in the last year that has claimed more than 90 000 lives, 90 000 people who have died with physical and psychological suffering and many of them in solitude. I think it is inopportune, but they argue it by saying that it has majority social support, and they base it on sociological studies that basically ask something that everybody wants: not to have suffering, to die and to live without suffering. And they also say that there is humanitarian support from people and professionals. I think these two arguments are false” (D5, p. 6). “¿Why, if there is no social demand and it is not one of the problems mentioned by citizens when they are asked? Why, if in 97% of the countries in the world there is no such law and the very few where it exists, the results are very negative because they feed back the problem, since they relax the legal guarantees and controls and increase the psychological and social pressure on the elderly and the sick?” (D2, p. 38).
- 68.
“We disagree that it is a guarantee. We believe that the introduction of the term serious, chronic and incapacitating condition causing suffering will create a breach into which any chronic condition will be introduced. The Socialist Party spokesman spoke earlier about the slippery slope. I believe that absolutely all chronic pathologies will slip through here, as has happened in other countries, where, in the end, the child or the elderly person, with no other pathologies, is invited to request euthanasia. Furthermore, with the adoption of this legal text, the doctor can decide in certain circumstances to initiate the euthanasia process. In the wording of Article 5.1.d) and 5.2, [people affected by] any chronic pathology: kidney failure, heart failure, rheumatoid arthritis, Alzheimer’s disease, depression, anorexia nervosa, [provided that it is] with suffering, can be victims of premature death by euthanasia” (D6, p. 106). Cf. also D5, p. 23.
- 69.
“¿Will they be able to prevent the most vulnerable sick and the persons with disability from being coerced into asking to die? Of course they will not, they will not be able to prevent it. This law will diminish the legal protection of life for the most vulnerable people” (D3, p. 10).
- 70.
Cf. D5, p. 7.
- 71.
Cf. D6, pp. 113–114.
- 72.
“That is why they have hijacked the debate and the law. And they are going to pass a frivolous law, a rushed and botched law, without knowing in depth the consequences of their actions. […] Today you are crossing a red line, which will substantially affect the life and death of Spaniards. Today you choose to be able to intentionally provoke the death of those who suffer, instead of legislating, budgeting and going deeper into alleviating their suffering through palliative care and allowing for a dignified death” (D3, p. 13).
- 73.
Cf. D3, p. 10.
- 74.
And it continues: “Ladies and gentlemen, the latest legislation adopted on this issue in the world has been given between twelve and eighteen months for its entry into force. We have proposed that it should come into force in one year. Look, in the state of Victoria, Australia, after two years of consultation, the law was passed in November 2017 and came into force in June 2019. In New Zealand, after another two-year long deliberative process, passage in Congress in 2019 and approval in a referendum by 65% in October 2020, the law will come into force one year after it is passed. And I have no reason to think that either the citizenry or the professionals in either country are dumber or less intelligent than we are. What is clear is that they understand that some decisions have to be taken with a lot of reflection, dialogue and participation, and put into practice with good training for those who are going to implement them” (D6, p. 113).
- 75.
For instance, “a new human right” (D2, p. 44); a constitutional right “to freedom”—in the sense of self-determination or decisional autonomy—and “to human dignity” (D1, pp. 37 and 42).
- 76.
Cf. D4, pp. 4 and 16.
- 77.
“A truly human and humanising project. Humanity, empathy, and compassion, in the sense of putting ourselves in the place of those who suffer” (D4, p. 16). Cf. also D1, p. 37.
- 78.
Cf. D1, p. 39.
- 79.
Cf. D1, p. 37.
- 80.
“The aim of the draft law decriminalising euthanasia and assisted suicide is none other than the defence of the right to a death with dignity in accordance with the dignity and freedom of the person as proclaimed in article 10.1 of the Constitution. The Universal Declaration of Human Rights proclaims that all human beings are born free and equal in freedom and rights; a freedom that must not be lost at any moment of life, not even in the final process. Article 10.1 of the Constitution, to which I referred, also expresses fundamental characteristics of the rule of law when it states that the dignity of the person is the foundation of political order and social peace. The fundamental rights of the person proclaimed in the Constitution are, therefore, inherent to his will and endow it with material content. This precept must therefore be considered as a guiding principle for the constitutional interpretation of rights and freedoms. In other words, the fundamental rights of the individual emanate from the proclamation of his dignity as the basis of political order and social peace and in accordance with the higher values of the legal system proclaimed in the article of the fundamental norm itself; an interpretation that must be inclusive of life and freedom and, consequently, an interpretation of Article 15 of the right to life, in the light of the free development of the personality, and obliges us to consider that life imposed against the will of its holder can never merit the qualification of a protected legal good. In other words, life is a right, not an obligation or a duty and, therefore, this fictitious confrontation between life and freedom must be rejected. The legal regulation of conducts related to suicide must be approached from a perspective based on these principles and affirm the recognition of the choice to dispose of one’s own life and, correlatively, the right to die. The conception of the right to life that implies the maintenance of life, even against the will of its holder, must give way to conceptions in accordance with the non-confessional state, respect for individual freedom and the right to self-determination of the person” (D6, p. 105).
- 81.
Cf. D3, p. 8. “Every life is a treasure that we must safeguard. Let us offer an alternative to death. […] We believe that the life of those who suffer is worth as much as anyone else’s, if not more” (D2, p. 37).
- 82.
Cf. D1, p. 39; D2, p. 44; D3, p. 4; D5, p. 15.
- 83.
Cf. D2, p. 52; D3, pp. 4 and 6; D6, p. 105.
- 84.
“We totally reject euthanasia because, furthermore, we believe that the right to die is a right that you have invented, not a right that exists” (D2, p. 42).
- 85.
Cf. D4, p. 12.
- 86.
Cf. D3, p. 11; D6, p. 120.
- 87.
“[Y]ou are clearly betting on death instead on life, because that is what you always do. […] In the face of your law of death, we are proposing a law of life, a law of life” (D2, p. 35).
- 88.
“One cannot speak of euthanasia if palliative care has not been resolved. […] Palliative care is an ethical solution that respects the unique value of each human life, the purpose of medicine and the deontological criteria” (D1, p. 30). “The legalisation of euthanasia, ladies and gentlemen, will definitively denaturalise the ethics of the medical profession. The goal of doctors used to be to save lives; now, with this contribution of yours, it will also be to destroy them” (D2, p. 36).
- 89.
“[P]rogressive is the result of the progress of the human race; it is solidarity, it is inclusion, it is the diversity of inclusion of the weak and the vulnerable; it is to attend with care and resources to the people who most need it from the welfare state. It is not showing the way out, exit; this is your project, this is your political and social message to the elderly and the chronically ill in this country who, believe me, view with great concern your social engineering project, your final solution or your trivialisation of euthanasia. What is progressive, Your Honour, what is humane, is to care for them. Believe me, it is really reactionary to do away with the defenceless sick” (D1, p. 32).
- 90.
“Unjust and unconstitutional law. […] [T]his law is unjust because it will act against the weakest, the most vulnerable, the most deteriorated, those who are most alone, the most helpless, those with the least autonomy and the most dependence” (D3, pp. 11–12). Cf. also D4, p. 8; D6, p. 94.
- 91.
Cf. D2, p. 47.
- 92.
Cf. D3, p. 10.
- 93.
“[T]his is what underlies these regulations; they represent savings; they represent savings for the cost of the elderly, of the most fragile, of the most vulnerable; they are social cuts in every sense, social cuts in every sense (applause), with the excuse, of course, of the right to die. And meanwhile, ladies and gentlemen, your government is allowing more than a million people to wait on waiting lists for dependency [referring to persons in a so-called dependency situation who are entitled to specific public benefits and services] without resources or support from family or economic support or from the State’s social and health resources” (D1, pp. 32–33).
- 94.
Cf. D6, p. 95.
- 95.
Cf. D2, p. 40.
- 96.
Cf. D2, p. 57; D3, pp. 16–21; D4, pp. 18 and 19; D6, pp. 108–110; D7, p. 22.
- 97.
Cf. infra Sect. 5.
- 98.
“There has been a thirty-point increase in the last forty years in the number of people who support euthanasia, and it is transversal, across all ideologies. It is true that, depending on the ideology, it varies. Practising believers account for 56% and non-believers 97%, but all of them are of the opinion that euthanasia should be regulated, and the scientific societies and professional associations that have been asked, know the results of the surveys” (D2, p. 41).
- 99.
Cf. D6, p. 131.
- 100.
Cf. D6, p. 126.
- 101.
Cf. D2, p. 41, in critical response to the proposal to the People’s Party Parliamentary Group and the Vox Parliamentary Group.
- 102.
“I also have my doubts—and I agree with the spokesman for the People’s Party Parliamentary Group—as to whether it is true that 72% of the Spanish population, as the CIS said in that survey in January, agree with euthanasia. It seems to be the case, but of course, what does that 72% who say they agree with euthanasia mean by euthanasia? That is the doubt I have, because today there is still a lot of confusion in society, but also among health professionals, about the terms I mentioned before, i.e. palliative action, withholding or withdrawing of life-sustaining treatment, euthanasia, suicide… There is confusion. If there is confusion among health professionals themselves, tell me if there is not confusion in society?” (D5, p. 8).
- 103.
“Ladies and gentlemen, in the face of this obscure law, introduced through the back door and rejected by health professionals as a whole—the Spanish Medical Association, the General Council of Medical Associations of Spain, and all its collegiate and bioethical bodies are absolutely against it—and by the majority of Spanish society, the People’s Party defends a socially just alternative for the Spanish people that allows death without suffering and without pushing or forcing people towards suicide” (D1, p. 30). Cf. D3, pp. 11–12.
- 104.
Cf. supra Sect. 3.3.
- 105.
The vacatio legis was of three months for the LORE as a whole, although Art. 17 (which sets the duty to establish and the composition of the autonomous communities’ commissions of guarantee and evaluation) came into force the day after the publication of the LORE in the Official State Journal.
- 106.
“The competent health administrations shall set up the appropriate mechanisms to disseminate this Law as widely as possible among health professionals and the citizenry in general, as well as to promote among the same the drafting of the advance directives document. Likewise, they shall disseminate among healthcare personnel the cases contemplated in the same for the purpose of their correct and general knowledge and to facilitate, where appropriate, the exercise by professionals of the right to conscientious objection. Within one year of the entry into force of this Law, the Commission for continuous training of healthcare professions, attached to the Human Resources Commission of the National Health System, shall address the coordination of the offer of specific continuous training on assistance in dying, which shall consider both technical and legal aspects, training in difficult communication and emotional support”.
- 107.
A description of the normative process of enactment and creation of the regional commissions of guarantee and evaluation is included in the 2021 Spanish Annual Report on the Organic Law on the regulation of euthanasia (pp. 3–6). Cf. https://www.sanidad.gob.es/eutanasia/docs/InformeAnualEutanasia.pdf (accessed 20 July 2023).
- 108.
Cf. Chap. 1 in this volume.
- 109.
Cf. D2, p. 47; D6, p. 99.
- 110.
“Whoever wants to live, let them live, but let the rest of us die with dignity. Euthanasia is not an obligation. I would ask politicians to think for once about the citizens, and above all about the citizens who are in these conditions. These words were spoken by Fernando Cuesta. Fernando Cuesta’s words sum up better than anyone else the purpose of this law, and better than any speech we could have in this House. Fernando was a sufferer of ALS [amyotrophic lateral sclerosis], he had no cure and he saw that he was deteriorating progressively day by day. Finally, he decided to go to Switzerland, not to die in his own environment and to pay for the corresponding services, because he could, in order to achieve the dignified death he desired.
Promise me, the day I don’t remember one of your names, the first day you see that I get you mixed up, that I don’t know what your names are, please don’t wait for me to forget you, for me not to recognise you as sons or not to recognise aita [‘father’ or ‘dad’ in Basque language]. On that day you have to help me leave. These words were spoken, as you know, by Maribel Tellaetxe, aware of the cognitive deterioration that would soon overtake her and that she would no longer recognise her surroundings, that she would be disconnected from the world, and at that moment, unable to decide, life was not worth living, according to her criteria. The relatives are distressed by the impossibility of responding to this request, of satisfying their demand, and ask: do we have ignorant politicians who are unaware of the suffering of thousands of patients with terminal and degenerative illnesses that are terribly painful both mentally and physically and for which there is no cure? Unfortunately, her son was unable to keep his promise, because his mother eventually died.
I did it because I am calm; she has stopped suffering. This is what Ángel Hernández did out of love, after thirty years of caring for his wife, María José, who begged and begged him to help her die. His decision cost him the paradoxical accusation of gender violence and Ángel even suffered prison, briefly, but he suffered it. This is the reality, this is what is happening to our citizens. (Applause). These are three painful cases which, with all due respect, I allow myself to cite here today, because they are more illustrative than anything I can tell you, although I insist that I do so with all due respect for their memory and also for the pain of their families. But these people, these families affected, once the end of their relatives had come, did not want to remain with their arms folded, they wanted to keep pushing, they wanted to keep working and fighting so that other people in the same circumstances could have this right. These situations challenge all of us, no matter where we sit. Human pain has no ideology, human pain and suffering are for all people. (Applause). Human pain is just that, human, and it is linked to the human condition” (D1, p. 27). Cf. also D7, p. 21.
- 111.
Catalonia is a pioneer in the presentation of a draft law of this type (D1, p. 40; D7, p. 17), in promoting legislation to reinforce patient autonomy (D6, p. 104). Galicia fought the first battle for this right, starting with the individual example of Ramón Sampedro (D4, p. 3; D7, p. 16) [a seaman who became a quadriplegic at the age of 25 (in 1968) and sought help in dying for almost thirty years; his story is portrayed in the movie The Sea Inside, which won the Oscar to the Best Foreign Language Film in 2004]. The Basque Country has also shown efforts in this direction (D4, p. 6; D7, p. 13).
- 112.
Cf. D5, pp. 8, 10–11 and 17–18; D6, pp. 100, 111 and 114.
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Acknowledgements
This chapter is one of the outcomes of the research project New human rights: legal theory and political practice (NDH) (code PID2019-111115GB-I00), funded by the Spanish Ministry of Science and Innovation for the period 2020–2023, and of the Grant for research groups with growth potential (no. ED431B 2020/50) of the Xunta de Galicia. I am grateful to Daniel Oliver-Lalana for his guidance and suggestions for the drafts of this chapter, and to the participants in the conference on Legislative argumentation and parliamentary justification of laws (Zaragoza, 16–18 December 2021) for their deliberative attitude.
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Seoane, JA. (2024). Legislative Debates on Death with Dignity and Euthanasia. An Approach to the Spanish Situation. In: Oliver-Lalana, A.D. (eds) Debating Laws. Legisprudence Library, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-031-46727-1_3
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