Euthanasia (Spain)
Topic by Lawrence
Essay by Lawrence
We discussed euthanasia way back in February 2009 and February 2019; I include links below.
For a quick reference for the “Ley Orgánica de regulación de la eutanasia” I used the press release issued by Congress on the 18 March 2021 (1); from the press release (in Spanish) is a direct link to the history and progress of the law. The law will come into force 3 months hence and will be published in the Boletín Oficial del Estado.
I am not detailing the law since the press release is very clear and helpful what the key points are, besides the law has been well reported in the international media. Spain is the sixth country to legislate some form of a legal euthanasia law: New Zealand will follow later this year after a referendum (Wikipedia: Legality of euthanasia). The Wikipedia distinguishes between active voluntary legal euthanasia and legal passive euthanasia: our topic is mainly about active voluntary legal euthanasia.
An important point for our discussion is that Spain is listed (2) in the Numbeo index the sixth leading country in healthcare; UK 15th, USA 30th and Taiwan 1st. Of the preceding five countries in the Wikipedia article: no information is available on the Taiwan limited passive euthanasia (3); South Korea have both an active and passive euthanasia law; France no legislation; Japan no official law but sort of available; Denmark practiced but not official. And Spain now has a legal active euthanasia.
Our first question is given that 5 out of the six top healthcare systems officially or from practice give terminally ill patients the opportunity to die should we move the debate on euthanasia from should it be allowed to how should it be allowed? The Spanish legislation is clear about this question: for example it requires expressed informed consent, specific and repeated application with a grace period. The Spanish legislation qualifies the conditions regarding pain and type of illness that qualifies: this is not an issue and is within the expected conditions.
The Spanish legislation has some important conditions:
- The patient can change their mind at any time of the process; this process is part of the free healthcare process.
- Patients receive all the help and information they require to make an informed consent.
- Probably the second most important aspect is that medical personnel can withdraw from the euthanasia process.
- And the most important aspect is that this legislation establishes euthanasia as a “new right for the individual” (la eutanasia como un nuevo derecho individual).
One of the fears of euthanasia is that the patient might be influenced or pressed by people who might benefit from the death of the patient. The Spanish legislation, for example, mitigates this possibility by requiring two specific informed consents over a fifteen day period plus other requirements. A more complex issue is when the patients are no longer conscious and therefore unable to speak for themselves. The Spanish legislation provides an equitable protection by looking for documentation such as a “life testimonial” or an appointed representative to ascertain their intentions.
For us the most important issue is that this legislation specifically establishes an individual right of euthanasia. Note the right is not to legalize euthanasia at will in Spain, but rather the right is given to the individual Spanish citizen (and legal residents) after a qualifying process. This is important for us and it’s not just a matter of semantics.
Take for example the headline from Euronews (4), “Spain will become the sixth country worldwide to allow euthanasia and assisted suicide”. Practically all newspapers reported the passing of the legislation in these terms. This interpretation of the legislation gives the impression that euthanasia in Spain (and elsewhere) is an on-demand process. In effect euthanasia legislations are not a right to die (euthanasia) but a right to qualify for euthanasia.
Irrespective of the semantics, the Spanish legislation is clear that it is establishing an individual right to apply for euthanasia. And the qualifying test is a medical condition and when in doubt it requires prima facie empirical evidence (eg a life testimonial) to settle the issue.
But are euthanasia rights inalienable rights? Legislation like that in Spain giving us a legal right to start the qualifying process for euthanasia, but an inalienable right (also natural right: see Wikipedia: Natural rights and legal rights) are understood to be established by nature. Legislation and constitutions might fortify inalienable rights but not establish them. However, just because euthanasia rights are fortified does this mean they can be suspended or more, rescinded?
I would argue that if euthanasia is an inalienable right we must also have an inalienable right to die. Some might appeal to a divine intervention for our death and hence we don’t have a right to die. It is argued that we do not decide when to die in the same way that it is a divine will that we are alive in the first place. The problem with this argument is that we are empirical beings and we understand empirical causal events. And empirically we know how people are born, why they are born and the reasons why many more are not born. Empirically there doesn’t seem to be a right to be born, but we do seem to have an inalienable right to life.
In a manner euthanasia legislation is not a legislation to die but rather a legislation to protect life. And it protects life by making the qualification process for euthanasia very stringent and very precise. The fact that legislation on euthanasia is evidence based means that the context and knowledge driving the penitent’s desire to stop living are based on established standards. We might dispute that knowledge but we also cannot dispute pain.
As I said in my 2019 essay (5), “Pain in a huge motivator.” But pain is also a huge moral issue. The qualifying conditions for euthanasia are an example on how serious pain is for us. The euthanasia qualification test tries to establish the necessary conditions for euthanasia, e.g. type of disease or advancement of the disease, and sufficient condition of the level of pain. In the Spanish legislation a medical healthcare professional has the right not to participate in an euthanasia process and health authorities have to keep a confidential register to protect their right. Professional objection to euthanasia implies a higher standard to test qualification for euthanasia: assuming objection is based on rational arguments. For example not long ago we believed that comatose people were not conscious of their environment: MRI has demonstrated that this is not always the case.
This is a problem for euthanasia: a person’s inalienable right to die in our context implies someone else having to perform the deed of killing. This creates two issues. The first is that euthanasia puts medical professionals in the border line space between legitimate killing and murder although the legislation goes a long way prevent this. The second is: does a right to die justify suicide? You will excuse me if I do not discuss this question.
But the final moral question about euthanasia is this: who has the right to allow others to suffer the most horrendous of pain?
(1)
El
Congreso aprueba la Ley Orgánica de regulación de la eutanasia
https://www.congreso.es/en/web/guest/notas-de-prensa?p_p_id=notasprensa&p_p_lifecycle=0&p_p_state=normal&p_p_mode=view&_notasprensa_mvcPath=detalle&_notasprensa_notaId=39150
(2) Health
Care Index by Country 2021
https://www.numbeo.com/health-care/rankings_by_country.jsp
(3) Chih-hsiung Chen,Legislating the Right-To-Die With Dignity in a Confucian Society—Taiwan’s Patient Right to Autonomy Act, 42HastingsInt'l &Comp.L. Rev. 485 (2019).Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol42/iss2/4
(4) Spain
will become the sixth country worldwide to allow euthanasia and assisted
suicide
https://www.euronews.com/2021/03/18/spain-legalises-euthanasia-and-assisted-suicide-despite-conservative-opposition
(5) Is euthanasia ethically correct? https://www.philomadrid.com/search/label/Is%20euthanasia%20ethically%20correct%3F
Past essays:
(2019) Is euthanasia ethically correct?
https://www.philomadrid.com/2019/02/is-euthanasia-ethically-correct.html
(2009) Euthanasia
https://www.philomadrid.com/search/label/Euthanasia
Best Lawrence
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