Portugal’s Euthanasia Bill Declared Unconstitutional

On March 15, 2021, Portugal’s Constitutional Court ruled that the parliament-approved euthanasia bill is unconstitutional.

In February, Portugal’s President Marcelo Rebelo de Sousa asked the country’s Supreme Court to evaluate the constitutionality of the parliament-approved euthanasia bill. The President considered that the recently passed bill was particularly vague from a legal standpoint. In his referral to the court, the President underlined the excessively ill-defined concepts of “irreversible injuries” and “unbearable suffering”. The now-rejected law would have allowed using these criteria as justification for practicing euthanasia.

Upon examination, the court indeed found the bill to be unconstitutional. In their ruling, the judges particularly emphasized the lack of clarity for: «permanent injuries of severe gravity according to scientific consensus”. For the tribunal, such wording is too vague, and therefore unconstitutional, to clearly “define with utmost rigor the life situations for which this phrasing could to be applied».

The judges also noted the unclear nature of “unbearable suffering”, but nevertheless they ruled that it can be “determined according to the rules specific to the medical profession, therefore it cannot be considered excessively imprecise”.

The court’s ruling of unconstitutionality was based on how the euthanasia law would be regulated and any ensuing legal uncertainty. According to the court, euthanasia cannot be declared unconstitutional as such, since “the right to life cannot be turned into an obligation to live under any circumstance.”  Our democratic and secular society has multifarious ethical, moral and philosophical perceptions of the individual. Based on this fact, the judges consider appropriate to strike a balance between the obligation to protect life and the respect of personal autonomy in cases of extreme suffering.

However, nothing in the court’s ruling indicates that euthanasia is the appropriate means of striking such a balance. In fact, the constitutional court’s analysis could be closer to the principle of abstaining from unreasonable therapeutic obstinacy, which could also prove to be an alternative that doesn’t necessarily lead to euthanasia.

Thus, the euthanasia law passed on January 29th cannot be enforced since it has been found unconstitutional. As a result, the bill will now return to parliament, where the MPs can either drop the bill or change the text and attempt to pass it once more. If the law is voted, the President could again refer the new text to the Constitutional Court. This situation has already occurred once before in Portugal when the surrogacy law was rejected in 2018 and 2019 by the Constitutional Court.

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