Portugal : The Constitutional Court has partly amended the euthanasia law
Through an advice issued on 22nd April 2025, the Portuguese Constitutional Court has again judged that some measures in the law on “medical assistance in dying” are unconstitutional.
Initially adopted on 12th May 2023, the law has experienced several developments after the initial text was twice challenged by the Constitutional Court and faced two vetoes by the Portuguese President. The Constitutional Court was seized in 2023 by a group of MPs from the PSD (Social Democratic party) and by the Mediator who challenged the constitutionality of certain provisions of the law.
“Assisted dying” is considered constitutional despite the tension between contradictory constitutional values
Most of the measures being challenged were declared constitutional, including the fact of authorising “assisted death”. The judges explained that “The Constitution does not categorically impose nor prohibit the legalisation of assisted death, but provides the legislator with a margin of appreciation when comparing the values of individual freedom and human life, in particular for clinical situations marked by their gravity, their irreversibility and their suffering.” They consider as a principle that it is a political problem and that it is up to the legislator, “to arbitrate the permanent tension between the contradictory constitutional values in the subject of life, characterised by a persistent and reasonable disagreement between citizens”.
However, the amended version of the law provided that assisted suicide should be practiced under certain conditions as the prime intention and that resorting to euthanasia should only be authorised in the event of physical inability to commit suicide. It is one of the points raised by the Constitutional Court which denounces the incoherence of certain articles with that condition.
Three emblematic measures amended
- Several articles of the law suggest that the patient has a right to choose between the two methods of assisted death: assisted suicide and euthanasia. Those articles contravene the law itself which provides that euthanasia may only be exercised if the patient is physically incapable of self-administering the lethal products. According to the Court, these “failings” by the legislator “may cause unnecessary difficulties of interpretation” and generate “an avoidable risk of incorrect application of the law, jeopardising the constitutional principle of legal security”.
- Concerning the right to a conscience clause for carers, the Court considered that the rule which demands that health professionals who refuse to accomplish or to take part in the act of death must specify the nature of their motives, was an unnecessary and disproportionate infringement against the freedom of conscience. In effect that measure infringes the freedom of not expressing one’s personal convictions to third parties.
- The judges also concluded that the mode of intervention by the specialist doctor for the pathology from which the patient is suffering would lead to a reduction in the protection of human life. By failing to demand a clinical examination of the patient, that challenges the objectivity and the reliability of judgement. The judges also stated that the fact that the latter rule is contrary to the Constitution “challenges the very decision to legalise medically assisted death under certain conditions”.
According to observers, the law should at least be re-amended which would need a new adoption in an uncertain context during the next parliament, since the National Assembly has been dissolved.
The priority should be to develop palliative care as is being called for by several groups who defend the most vulnerable in a state which is suffering from an enormous shortage of such care.
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