It seems paradoxical that at a time of pandemic, when the collective commitment is largely aimed at protecting the health of citizens, there are discussions about making it legal to help people take their own lives. This paradox highlights an issue gripping the medical world. If the biomedical enterprise has the task of dominating biological processes and responding to the desire of health for everyone, then it seems plausible to ask it – when it fails in its objective and suffering is deemed intolerable – to shorten life. It is the last step in the exercise of control. Instead, what is needed is to question the whole enterprise: to review the aims pursued by medicine and to re-articulate, for health protection and pain therapy, the relationship between treatment of diseases and prevention, between hospital and territory, between health and social sectors.
The pandemic has sharpened these questions. Waves of global contagion have, on the one hand, disproved the myth of complete control and, on the other, highlighted the importance of an approach to care that is not limited to human subjects. The connections between all living beings on the planet, within a single biosphere, affect health: people speak of One Health. In the background there is an anthropological and cultural issue that should at least be mentioned, to clarify how it is that the legal debate is only the emerging tip of a much larger complex of factors.
The Italian parliament discussed the proposed legislation (PL) on “medically assisted voluntary death” on December 13, 2021, and the vote is scheduled for February, 2022. In order to frame the issue, we will first recall some legal issues concerning the PL. We will then dwell on the most relevant aspects of its content, with the intention of providing a contribution to the debate.
The context: important laws ignored
To frame the theme, it would be good to start with law No. 219/2017 on “Informed Consent and Advance Treatment Provisions” (DAT). Although not lacking in problematic and ambiguous elements, it is the result of a laborious quest that was able to connect a plurality of divergent positions. The law allows the suspension of treatments that – in dialogue between health professionals, patients and (as far as possible) families – are deemed disproportionate. It also regulates, in anticipation of a “future incapacity to determine oneself,” the advance expression of one’s own decision and the appointment of a trustee. It also promotes palliative care and pain management.
The combination of these elements validates the ethical and legal difference between “allowing to die” and “killing.” The framework outlined allows people to proceed while remaining on the threshold that distinguishes the first from the second. It could therefore have been a satisfactory point at which to stop, because the law is still little known and practiced; two years after its approval, only 0.7 percent of the relevant population had drawn up their own DAT. Moreover, the same is true for law No. 38/2010, also of great importance for end-of-life issues, dealing with “access to palliative care and pain therapy,” two precious opportunities, which remain scarcely known and not universally guaranteed across Italy.
Before tackling other legislative decisions on the subject, it would have been desirable to work to apply these two laws. Such a commitment touches on dimensions that are not only political and logistical, but also cultural and educational, and which would have fostered a more informed discussion of the resources available to alleviate suffering. Instead, attention remains focused on the end point of a series of assumptions that are neither examined nor reconsidered. Rather than focusing only on the legal aspect, a more articulated political and cultural mediation would have helped to better grasp the anthropological significance of the topic and the connection with the meaning of dying, which in turn refer to the appreciation of living and mutual care within the community.
A ruling on the decriminalization of aiding suicide
However, pressure grew under the impetus of the case of Fabiano Antoniani, better known as DJ Fabo. Left quadriplegic and suffering from blindness due to a serious car accident, after several attempts at treatment, Fabo expressed the desire to end his life. Turning to Marco Cappato, treasurer of the Luca Coscioni Association, he was helped to realize his intent. Cappato’s self-disclosure started a judicial process that led to a ruling of the constitutional court (No. 242/2019), regarding Art. 580 of the Penal Code on inciting and aiding suicide. The two aspects are asserted to be criminal by the court, which also reconfirms the need to legally protect the value of life, especially in conditions of fragility. However, it recognizes at the same time that the evolution of medicine may determine new situations regarding dying.
On this basis, the sentence excludes from punishment those who “facilitate the execution of the intention of suicide independently and freely formed,” provided that certain conditions are met: the person must be “kept alive by life-support treatments and affected by an irreversible disease; there is a source of physical or psychological suffering that he or she considers intolerable, but is fully capable of making free and informed decisions.” These conditions reflect the clinical situation in which DJ Fabo found himself. The court also urged parliament to fill the legislative gap that had been determined.
To underline the cultural climate in which we find ourselves, we mention the pronouncement, in some respects similar, of the German Federal Constitutional Court (February 26, 2020). In a more extensive way than the Italian judgment, it excludes punishing the facilitation of suicide by (commercial) organizations, to avoid undue restrictions on the “right to self-determination in death.” This is a right that the court considers to be founded in the broader “general right of the person,” resulting from the combination of the principle of inviolability of human dignity and the right to free development of the person. The court does not exclude that assistance to suicide can be further regulated, provided that an effective space for autonomy is recognized, and finally specifies that in no case is there an obligation to assist in the suicide of another person.
The referendum on murder of a consenting person
An important element of the current scenario is the referendum promoted by the Luca Coscioni Association on Article 579 of the Penal Code, which deals with the murder of a consenting person. The request is to repeal the sanctions that are linked to it, except in cases of minors, insanity or altered consciousness, and consent obtained by deception or extorted by violence. The result would be to allow homicide without subjecting it to conditions other than those that guarantee the validity of consent. It is asserted that conditions similar to those provided in Judgment No. 242/2019 would be introduced later. But further legislative intervention is not guaranteed by any legal obligation and would remain entrusted to the uncertainties of precarious political balances. In the meantime, however, even a healthy person would fall into the space opened by the passage of the referendum.
The abrogative referendum shows here all its inadequacy. On the one hand, in fact, it forces the formulation of a drastic alternative, which opens an enormous loophole without any assurance of being able to moderate its effects; on the other, it poses a question about which public opinion is only aware to a limited degree, as the outcome of the laws mentioned above shows.
We do not know if the court will declare the question admissible. But in case of a positive answer, we can expect a high number, if not the majority, of votes in favor, given the large number of signatures collected in support of the referendum. This would be a serious breach in the legal system regarding a fundamental good, namely, life. At this juncture, the PL could constitute a barrier, albeit imperfect and itself problematic. While it would not provide a legal argument to make the referendum lapse, since it deals with a different article of the Penal Code, it would nevertheless be political grounds to sustain, at least, a vote against.
The proposed bill and the clinical situations required
As regards the content of the PL, parliament is not bound by the court’s pronouncements, except with regard to the legal-constitutional core of the ruling on Art. 580. On the other hand, parliament can recognize in the judgment an indicator of the convergence reached between the different positions, assuming the instances with its own decision. This is how the PL seems likely to move: “We have chosen to follow step by step the footsteps traced by the Consulta, because it is the only way that can lead to approval,” explains one of the two rapporteurs, the Hon. Alfredo Bazoli (of the PD), aware of the crossfire to which the PL is subjected. This position is also supported by Giovanni Maria Flick, the president emeritus of the constitutional court. Let us therefore examine the main points.
Like Judgment No. 242/2019, the text recognizes not a right to suicide, but the right to ask for help to carry it out, under certain conditions. These conditions are taken up, and partially reformulated, from what the court ordered. The expression “irreversible pathology,” used in the ruling, is restrictively qualified as “with an inauspicious prognosis.” On the other hand, “irreversible clinical condition” is added. This addition, however related by a causal link to intolerable pain and suffering, includes situations of chronic incurable disease, even when death is not expected in the short term. This is a problematic perspective, but sanctioned by the court with reference to Fabo’s situation, and also present in many cases that have come to the fore in the media.
We note that the description of the clinical situations considered necessary to ask for assistance in dying, although initially clearly specified, tend to become blurred over time. An example of this is what is happening in Belgium with regard to “polypathology,” a situation in which suffering does not derive from a specific illness, as required by law, but from a combination of different and nuanced dysfunctions. Taken together, however, they end up allowing assisted suicide (or euthanasia): these are very frequently conditions met in old age, which go so far as to cover the “weariness of living.”
Life support treatments
Life-sustaining health care treatments on which the sick person depends are another condition that must be present, in addition to those just described. However, their definition is unclear . We saw this in the recent opinion of the Regional Ethics Committee of Le Marche (November 29, 2021), regarding the case of “Mario.” The committee affirms that the patient is not kept alive by treatments usually considered as life support (artificial ventilation, hydration and nutrition), but by devices and maneuvers that “play a subsidiary role” (such as cardiac pacemaker, bladder catheter and manual evacuation). However, their interruption could cause complications that lead to death, unless invasive interventions are carried out and cause further suffering. The committee concludes that the conditions set forth in Judgment No. 242/2019 are met.
This example is a particular case of a general phenomenon, often referred to as a “slippery slope”: we start by considering exceptional cases and then include increasingly widespread and frequently occurring situations. This is what we learn from the experiences of Belgium and Holland. Opinions differ on the value of the “slippery slope” argument in its various versions. Those who dispute its validity say that the slippery slope can be avoided if precise conditions and adequate means of verification are put in place. However, the experience of countries in which voluntary death assistance is legally permitted seems to us to attest to slippages due to a number of interrelated cultural factors, of which language, legislation, practices and emotions are part.
Something similar happens regarding the issue of consent, as we shall see shortly. But to conclude on the question of life-support treatments, an amendment to better qualify them, even if not very acceptable to those who support the referendum, could be, in my opinion, to add that their suspension would lead to death “directly and quickly.”
Consent and autonomy
The time factor around consent prevents proceeding when wishes are expressed in advance or under conditions of impaired decision-making competence. This is why it guarantees, at least in theory, a distinction between suicide assistance and euthanasia, although this distinction is not easy to maintain in practice. The very title of the PL hints at this blurring: “medically assisted voluntary death” is often used to designate a set of procedures that includes both cases, sometimes due to a lack of precision, sometimes due to an equivocal use of the terms. The use of an expression such as “suicide assistance” might avoid the ambivalence.
But the question of consent refers to a deeper issue about the different interpretations of freedom. On the one hand, there are those who emphasize autonomy, stressing the independence of the self-sufficient individual. It is a perspective that has had the important historical function of protecting the personal sphere from intrusion by multiple forms of power. On the other hand, it is pointed out that the sole focus on self-determination leads to a reductive understanding of interpersonal relationships and the complexity of the human subject. A contractualist logic then prevails, configured on the model of material goods, whereby an agreement is signed or terminated by calculating costs and benefits.
Relationships, trust and interdependence
A relationship with others, however, is not added to an already pre-established subject, as is the case with a contract. Rather, the person is constituted by relationships. Beginning with our being born, we become aware of the role of the initiative of others from whom life is received, the original inaccessible moment in which every further discourse on the availability of life is rooted and makes sense. The consent we give to others is not first and foremost “informed”; it is not based on knowledge, but on trust, a fundamental attitude toward things, persons and institutions, without which it is not possible to access the meaning that guides existence and action. Therefore, from the beginning we are part of a context of relationships that make us live in solidarity with one another: our personal identity is structurally relational.
In order to be exercised correctly, human freedom must take into account the conditions that have allowed it to emerge, and assume them in its operation insofar as it is preceded by others, it is responsible to them. Therefore, human life cannot be reduced merely to something to be decided upon in the private and individual sphere, as if it had no effect on others. Univocally accentuating self-determination leads to underestimating the reciprocal influence that takes place through shared culture and circumstances. Apparently free requests are actually the result of a social injunction, of which the economic drive is an important part. “Defend me from what I want,” writes Korean philosopher Han in the preface to one of his books. The topic of consent is therefore a very delicate one.
But there is more. The experience of countries in which medically assisted death is permitted shows that the number of persons admitted tends to expand: competent adult patients are joined by patients whose decision-making capacity is compromised, sometimes severely so. Moreover, cases of involuntary euthanasia and deep palliative sedation without consent have increased. We are therefore witnessing a contradictory outcome: in the name of self-determination, the effective exercise of freedom is being compressed, especially for those who are most vulnerable; the space of autonomy, of which consent should be an expression, is gradually being eroded.
Opportunities for conscientious objection
The possibility of conscientious objection does not seem to appear in Judgment No. 242/2019, since the choice to provide assistance to suicide is entrusted to the conscience of the individual doctor. The Italian National Health Service (SSN) only has the task of verifying conditions and procedures, i.e. a guarantee function, not direct involvement. Foreseeing conscientious objection is therefore unnecessary, thus avoiding a tension with the intentions of the SSN, which is oriented “to the promotion, maintenance and recovery of the physical and mental health of the entire population without distinction of individual or social conditions” (Law No. 833/1978, Art. 1).
However, this solution leads toward models similar to the one in force in Switzerland, where assistance and the very event of dying are “privatized.” The term “privatized” is used here in all its meanings: relying on private companies, including commercial ones; making the experience of dying disappear from the public sphere; depriving patients of the network of relationships that weave social coexistence and sustain them in moments of crisis. This is a scenario that the law intends to avert by providing that death can also occur in a hospital facility (Art. 5.5).
This, however, can generate conflicts of conscience in healthcare workers as to the morality of being part of the process. Therefore, guarantees should be made for an objection by which the health care professional is exempted “from carrying out procedures and activities specifically aimed at suicide and not from assistance prior to the intervention” (Art. 5bis.3). In this way, on the one hand, the health care professional would be protected and, on the other hand, those who ask themselves questions about suicide would be able to encounter a plurality of voices in the process of forming their judgment.
Importance of palliative care
Palliative care is mentioned several times in the PL. First of all, it is appropriately requested that the patient be involved in it, as an absolute prerequisite for the termination of life request (Art. 3.1). It would be incongruous to include intolerable pain and suffering among the conditions without first having recourse to the means available to alleviate them. However, the last part of the article, which adds that they must be “explicitly refused,” is less clear.
While on the one hand, in fact, one can understand the intent to keep suicide assistance and palliative care distinct, because they “do not intend to hasten or postpone death,” on the other hand, it seems difficult to reject care whose intent is to alleviate pain even when it becomes “total,” that is, when it comes to involving all the dimensions of the person in his or her various physical, emotional and spiritual needs. At the same time, it would not be appropriate to emphasize more the possibility of excluding palliative care (cf. Art. 5.3) than the right and convenience of accessing it.
Clinical evaluation committees
On the bodies responsible for verifying the required clinical conditions, the law diverges from Judgment No. 242/2019. If in fact the court attributed this task to local ethics committees, Art. 6 of the PL speaks of committees for clinical evaluation. In fact, this does not seem to be the task of an ethics committee, regardless of the fact that currently those local ones are mostly dedicated to the examination of protocols for experimentation.
Here it is a matter of expressing a technical judgment concerning conformity between the conditions provided by law and the clinical situation of the patient. The judgment is therefore more technical than ethical.
An acceptable ‘imperfect’ law?
There is no doubt that the law under discussion, while not dealing with euthanasia, diverges from the positions on the unlawfulness of assistance to suicide that the Magisterium of the Church has reiterated in recent documents. Evaluating a state law requires consideration of a complex set of elements in order to respect the common good, as Pope Francis reminds us: “Within democratic societies, these sensitive issues must be addressed calmly, seriously and thoughtfully, in a way open to finding, to the extent possible, agreed solutions, also on the legal level. On the one hand, there is a need to take into account differing world views, ethical convictions and religious affiliations, in a climate of openness and dialogue. On the other hand, the state cannot renounce its duty to protect all those involved, defending the fundamental equality whereby everyone is recognized under law as a human being living with others in society.”
The question that arises is, in extreme synthesis, whether this PL should be given an overall negative evaluation, with the risk of favoring the referendum liberalizing the death of the consenting person, or whether we can try to make it less problematic by modifying the most harmful terms. This tolerance would be motivated by the function of a barrier against possibly more serious harm. The traditional principle that could be used is that of “imperfect laws,” employed by the Magisterium with regard to procured abortion. The criterion would not be automatically applicable here, because we are dealing more with risks than with certainties: it is not a question here of improving a more permissive law already in force. Yet, in this context, the omission of an intervention strongly risks facilitating a more negative outcome. For those in parliament, then, it is necessary to take into account that, on the one hand, supporting this law does not correspond to permitting the evil regulated by the legal norm, but to leaving citizens with the possibility of carrying it out. On the other hand, cultural conditions at the international level are pushing strongly in the direction of more ethically problematic scenarios that must be guarded against with wise tenacity.
Finally, given the situation of the country and the constitutional court’s appeal to parliament, it seems important to us that a law be legislated. The abstention of the legislators or the wreckage of the PL would be a further blow to the credibility of the institutions at an already critical moment. Despite the concurrence of values that are difficult to reconcile, it seems to us that it is not desirable to escape the weight of the decision by rejecting the law. Several political forces are moving in this direction, albeit with opposing motivations: some to clear the way for the referendum and facilitate the victory of the “yes” option; others to postpone sine die the discussion on a thorny issue. In the current cultural and social situation, it seems to the writer that support for this PL is not in contrast with a responsible pursuit of an outcome in line with the common good.
DOI: La Civiltà Cattolica, En. Ed. Vol. 6, no.2 art. 9, 0222: 10.32009/22072446.0222.9
. Cf. D. Callahan, “Reason, Self-determination, and Physician-Assisted Suicide”, in K. Foley – H. Hendin (edd.), The Case against Assisted Suicide: For the Right to End-of-Life Care, Baltimore – London, Johns Hopkins University Press, 2002, 52-68.
. Cf. W. Ricciardi, Sanità pubblica. Scienza e politica per la salute dei cittadini, Milan, Vita e Pensiero, 2021, in particular 138-145.
. See www.iss.it/one-health
. Cf. Á. Lobo Arranz, “Euthanasia, Another Wave Sweeping Europe”, in Civ. Catt. En., Jan 2021, https://www.laciviltacattolica.com/euthanasia-another-wave-sweeping-across-europe/
. See http://documenti.camera.it/leg18/pdl/pdf/leg.18.pdl.camera.2_A.18PDL0167820.pdf
. For a commentary, cf. C. Casalone, “Diritto sulla vita e valore della vita. Prospettiva etico-teologica”, in Verduci V. (ed.), Il diritto sulla vita. Testamento biologico, autodeterminazione e dignità della persona, Pisa, Pacini Giuridica, 2018, 37-54.
. Cf. C. Casalone, “Vivere il morire con umanità e solidarietà”, in Civ. Catt. 2017 IV 533-545.
. Cf. D. P. Sulmasy, “Killing and Allowing to Die: Another Look,” in Journal of Law, Medicine & Ethics 26 (1998/1) 55-64; P. Requena Meana, Dottore, non fare tutto il possibile! Dalla limitazione alla prudenza terapeutica, Rome, Società Editrice Universo, 2021.
 . See VIDAS Association survey (www.vidas.it/rassegna-stampa/biotestamento-una-ricerca-nazionale).
. Cf. P. M. Cattorini, Suicidio? Un dibattito teologico, Turin, Claudiana, 2021, 100.
. Cf. L. Scaraffia – F. Cancelli, Nella morte a occhi aperti. Cattolici, laici e conflitto dei valori, Brescia, Morcelliana-Scholé, 2021, 181-192.
. The patient also depended on an external aid for breathing, although not continuously, for feeding and for evacuation.
. Cf. F. Occhetta, “Il suicidio assistito: un nodo politico da sciogliere”, in Civ. Catt. 2019 IV 243-252.
. For a summary in English, see www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-012.html
. More than 1.2 million signatures were collected, including more than 300,000 online.
. Cf. V. Maglione – B. L. Mazzei, “Fine vita: la stretta tra Parlamento e referendum”, in Il Sole 24 Ore (see www.ilsole24ore.com), December 17, 2021.
. Cf. A. Picariello, “Euthanasia, si rischia la deriva”, in Avvenire, December 3, 2021, 10.
. It should be noted that Belgian law also recognizes not a right to assisted suicide (which, moreover, the legislation regulates in the same way as euthanasia), but to request it; however, after twenty years, it is routinely spoken of as a right (cf. E. Montero, “The Belgian Experience of Euthanasia Since Its Legal Implementation in 2002”, in D. A. Jones – Ch. Gastmans – C. MacKellar [eds], Euthanasia and Assisted Suicide. Lessons from Belgium, Cambridge, Cambridge University Press, 2018, 37f.
. Cf. K. Raus – B. Vanderhaegen – S. Sterckx, “Euthanasia in Belgium: Shortcomings of the Law and Its Application and of the Monitoring Practice”, in The Journal of Medicine and Philosophy 46 (2021) 89.
. The patient (so named for privacy reasons), who has been quadriplegic for 10 years due to a car accident, asked to be helped to commit suicide, making use of the ruling No. 242/2019 (see www.quotidianosanita.it/cronache/articolo.php?articolo_id=100262).
. Cf. E. Montero, “The Belgian Experience of Euthanasia…”, op. cit., 46f.
. Cf. G. Fornero, Indisponibilità e disponibilità della vita. Una difesa filosofico-giuridica del suicidio assistito e dell’eutanasia volontaria, Turin, UTET, 2020, 499-538.
. See P. Friesen, “Medically Assisted Dying and Suicide. How Are They Different, and How Are They Similar?”, in Hastings Center Report 50 (2020/1) 32-43.
. See J. Keown, Euthanasia, Ethics and Public Policy. An Argument against Legalisation, Cambridge, Cambridge University Press, 2019, 7-21; D. Callahan, “Organized Obfuscation: Advocacy for Physician-Assisted Suicide,” in Hastings Center Report 38 (2008/5) 30-32.
. Cf. M. Hunyadi, Au début est la confiance, Lormont, Le Bord de l’eau, 2020, 11.
. Cf. M. Chiodi – M. Reichlin, Morale della vita. Bioetica in prospettiva filosofica e teologica, Brescia, Queriniana, 2017, 203-216.
. Cf. B.-C. Han, Psicopolitica. Il neoliberismo e le nuove tecniche del potere, Milan, nottetempo, 2016.
. In Belgium, since 2014, minors judged to be “capable of discernment” can access it, regardless of age (see S. Van Gool – J. de Lepeleire, “Euthanasia in Children. Keep Asking the Right Questions”, in A. D. Jones – C. Gastmans – C. MacKellar (eds), Euthanasia and Assisted Suicide…, op. cit., 173-187).
. See D. A. Jones – C. Gastmans – C. MacKellar (eds), Euthanasia and Assisted Suicide…, op. cit., 279-283.
. Cf. M.-J. Thiel, “Devoir mourir au nom de son autonomie?”, in La Croix (www.la-croix.com/Debats/Forum-et-debats), March 6, 2017.
. Worldwide Hospice Palliative Care Alliance – World Health Organization, Global Atlas of Palliative Care, 2020, 13.
. Cf. A. Turriziani – G. Zaninetta, Il mondo delle cure palliative, Bologna, Esculapio, 2018, 329-332.
. Cf. Congregation for the Doctrine of the Faith, Letter Samaritanus bonus. On the Care of Persons in the Critical and Terminal Stages of Life, September 22, 2020; CEI National Office for the Pastoral Care of Health, Alla sera della vita. Riflessioni sulla fase terminale della vita terrena, Savona, Romani, 2020.
. Francis, Message to Participants in the European Regional Meeting of the “World Medical Association” on “End of Life” Issues, November 16, 2017, in www.vatican.va
. Cf. L. Eusebi, “Introduzione. Etica e diritto nella società pluralista”, in Id. (ed.), Il problema delle ‘leggi imperfette’. Etica della partecipazione all’attività legislativa democratica, Brescia, Morcelliana, 2017, 17f.
. Cf. ibid., 19. This is how M. Faggioni puts it: The “initiative may become urgent when it is expected that on that subject there will be a bill much less respectful of some fundamental values or frankly unjust” (M. Faggioni, “Il teorema della legge imperfetta e il principio del male minore”, in L. Eusebi [ed.], Il problema delle ‘leggi imperfette’…, op. cit., 99). The urgency in our case is determined by the imminent referendum.