287

Essays

. .2. ir ir in- Zara- fessor r with g g which US Bill of law». The t to a dou- 4. 4. Final re- ion of life» nsion of the o life o life and assisted death assisted life and o ct DERFUNDAT (PGC2018- Declaration of the Rights of the US Constitution ( tion tion and possibly explains some (1776) already affirmed that «[w]e hold rounding rounding the analysis of the ional ional documents is a «late comer». In s s strongly rooted in our constitutional ; ECtHR ; ECtHR (1869) or the can can be considered that the express pro- the Italian Constitutional Court titutional Court, the Colombian LIFE AND ASSISTEDLIFE DEATH AND used to proclaim it and, on the fundamental right to life paying

 with with the help of others? To answer tween tween the fundamental right to life e – 2.1. The problem of the object of the right – 2 can can call in general terms the «right to life» oc- Bill Bill of Rights national Law; Public Law Department; University of I would like to express my deepest gratitude to Pro life, life, liberty, or property, without due process of would like to thank the anonymous reviewers for the fe, fe, Liberty and the pursuit of Happiness»; a wordin nal and his invaluable help. The article was subjec reated equal, that they are endowed by their Creato ch referred to the inherent right to «the preservat ght to life as a guarantee – 2.3. The positive dime hip between the right to life and assisted death – Gonzalo Arruego (1215), (1215), the Declaration of Independence and assisted and death . This study is part of the National Research Proje

Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista

– Magna Carta On the relationship between the fundamental right t right the fundamental between On the relationship (1789). However, according to the 5th Amendment to

. . This fact has probably conditioned its interpreta 1 : Right to life; assisted death; right to die; ECHR die; to right death; assisted life; to : Right : : This paper onetackles of the classic queries sur espite the transcendence it is usually granted, it tection of human life in human rights and constitut this sense, and contrary to other fundamental right BioLaw Journal BioLaw Journal

[email protected]

: : 1. Introduction – 2. The fundamental right to lif N THE RELATIONSHIP BETWEEN THE THE RIGHTN BETWEEN FUNDAMENTAL RELATIONSHIP TO On the On relationship between the fundamental right t BSTRACT

EYWORDS other, the doctrines of the ECtHR, the Spanish Cons Constitutional Court, the Supreme Court of Canada, Court. Constitutional the German and K special special attention, on the one hand, to the language this this question the study explores the meaning of the and and the capacity to end one’s own life, especially right right to life: what is the relationship, if any, be O A

of 1791), «[n]o person shall be [...] deprived of UMMARY We find no mention in the PhD in Law; LlM in Comparative, European and Inter marks. right to life: a slippery slope? – 3. The relations The The nature of the fundamental right to life: the ri ble-blind peer review process. 1  093737-B-I00), funded by the Spanish Government. I D sightful and helpful comments and suggestions. And Wayne McIntosh for his careful reading of the origi 1. Introduction 1. Introduction S goza. Mail: Man and of the Citizen first part of the second paragraph of the rights history and tradition, the consecration of what we curred curred after WWII these truths to be self-evident, that all men are c certain unalienable Rights, that among these are Li differs from that of Jefferson’s «rough draft», whi

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded 288

Essays Arruego Gonzalo process of dying dying of process 70’s in H. I H. in 70’s 3 2 germ already had right the tensions internal the of populatedwith a myriadcategories which have only artifi times at the avoid to meant is decision this be assisted/helped in dying, normally by public aut public by normally dying, in assisted/helped be lif own one’s end to decision the alone and private deba real the today illustrate, pages following the perspec the and study the by addressed question the On considerations. different three on mainly based an euthanasia terms, well-established two encompass As the title of the study suggests, in the followin the in suggests,study the of title the As life and to assisted death. addres by closes study the reached, conclusions the a Court Constitutional Italian the Canada, of Court th death: assisted of legitimacy constitutional the whi courts constitutional/supreme those of case-law jurisprudence the in (ECtHR), Rights Human of Court interpretation the o analyses it hand,other the on Europe the and documents rights human international lan the to hand, one the on attention, special pays content, its as well as life, to right fundamental mainly study this question, this answer to order In fundamentalright and tolife capacity the to endo que classic those of one tackle pages following The life. to fewexamplesrecurrthearea manyof just quality, the whether and death of definition legal the tion, afford be must that protection the as such Dilemmas culiarities its object:of human life. progressively have difficulties those proclamation, can cause her death herself». herself». death her cause can a by prescription «the and person» the of death the die», a right that encompasses «the direct administ direct «the encompasses that right a die», re the is object Its terms. those of any of use the lawyers». Actually, the bill to legalise assisted d assisted legalise to bill the Actually, lawyers». hea the citizens, the among confusion increasing an the Autonomous Community of Andalucía of Community Autonomous the different adjectives such as “active”, “passive”, “ “passive”, “active”, as such adjectives different This is the perspective adopted by the Spanish leg Spanish the by adopted perspective the is This this of object the to regard with and example, For NDABAS

asserts that: «[f]rom and etymological point of vie of point etymological and «[f]rom that: asserts et al., al., et Declarations on euthanasia and assisted dying assisted and euthanasia on Declarations

on the rights of the person and the protection of h of protection the and person the of rights the on eath being currently discussed by the Spanish Parli Spanish the by discussed currently being eath direct”, “indirect”, “voluntary”, “involuntary”, ha “involuntary”, “voluntary”, “indirect”, direct”, BioLaw Journal BioLaw gulation «of the right to demand and to receive ass receive to and demand to right the «of gulation ration by a healthcare professional of a substance substance a of professional healthcare a by ration study, an analysis of pro-euthanasia movements sin movements pro-euthanasia of analysis an study, healthcare professional of a substance so that the that so substance a of professional healthcare islature. In this sense, the the sense, this In islature. lthcare professionals, the media, the bioethicists bioethicists the media, the professionals, lthcare g pages I will use the generic term assisted death assisted term generic the use will I pages g as the key to provide a reply. Such an exploration an Such reply. a provide to key the as cial complexity of a debate that has become over become has that debate a of complexity cial ne’sown life, especially the with helpof others? f the right in the evolving doctrine of the Europeathe doctrineof evolving the in right the f pe inherent the of result a as probablyincreased, nd the German Constitutional Court. In the light of light the In Court. Constitutional German the nd ent questionsentsurroundingright analysisthethe of guage used to proclaim the right both in the main the in both right the proclaim to used guage horities and within a public health system. Finally system. health public a within and horities te does not turn so much around carrying out in out carrying around much so turn not does te right to life protects bare existence regardless o regardless existence bare protects life to right ries: what is the relationship, if any, between the between any, if relationship, the is what ries: e, but rather around the recognition of a right to right a of recognition the around rather but e, focuses on the delimitation of the object of the of object the of delimitation the on focuses Clmin osiuinl or, h Supreme the Court, Constitutional Colombian e the one hand, it is consistent with the nature of nature the with consistent is it hand, one the obscured the issue central inated sing the existing relationship between the right the between relationship existing the sing ch have recognized, albeit with different scope, different with albeit recognized, have ch of the Spanish Constitutional Court and in the in and Court Constitutional Spanish the of tive adopted to answer it. On the other, and as and other, the On it. answer to adopted tive ed to human life from the moment of concep- of moment the from life human to ed d (physician) assisted suicide. This decision is decision This suicide. assisted (physician) d an Union member States’ Constitutions. And, Constitutions. States’ member Union an 2 . Today, and after 70 years of its formal its of years 70 after and Today, . –

w euthanasia means good death. However, However, death. good means euthanasia w Rivistadi BioDiritto,n. 3/2020 , in in , Death Studies Death Preamble of the Law 2/2010 of of 2/2010 Law the of Preamble 3 , 41, 9, 2017. 41,2017. , 9, . er dignity in the in dignity er ve resulted in resulted ve ament avoids avoids ament

istance to istance to cause to and the and person ce the the ce to n f - ,

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded

289 Essays

y on on sion f f ex- y» (J. egal- being being ne see mental a human epending although ore exclu- be drawn, om scientific

among the Council Gard and others v. o life and assisted death assisted life and o even the expression of sciences and technologies socio-economic and cultural socio-economic , Oxford,2011, 3). F F W Guest Memorial Lecture: The , The right to life. A guide to the , , , Strasbourg, 2006). The Spanish Con- (2015) § 147 and nstitutional Court see, among others, Introduction: rewriting life, reframing . . This provides no help in resolving ic Age KEGG 4 , , law obviously provides juridical and ORFF

ASANOFF y shifts in the scientific paradigm and/or by ological conception of what the right to life life» life» means s remain unsettled. unsettled. remain s e e of affairs and their increasing impact on juridi- tal right to life faces is definitional. definitional. is lifeto faces right tal qualitative qualitative elements. In either case the questions he following three examples in offollowing theexamples in context three he end alive depending on the criterion adopted to certif whose nature whose is nature neither therapeutic nor palliative t by these lines for boundaries in biological realit eological...)» (Spanish Constitutional Court decisi died died under the umbrella of «euthanasia» have to- by the law. Actually, jurisdictions l in that have al» al» ( S. J r scrutiny (D. K the ECtHR, and despite the fact that the same conclu boundaries of the concept «human life» but, as Korf withdrawal of artificial life-sustaining treatment, ion on Human Rights nal lines for social or legal purposes could always process; in this sense, from a legal point of view ly for the purposes of their resolutions and theref unborn, technical advances in neonatology are funda . . Second, the role of health care professionals is indefinite concept «whose definitions are plural d g g heart cadaver» (P. S tment refusal; in the Canadian Supreme Court doctri 7 life, the Law confronts the definition of death fr Lambert and others v. France (

, the Court has asserted that «no consensus exists London, 1977, 127).

, Pretty , 6, 4, 1988, 518). Significant changes in the life

Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista

– On the relationship between the fundamental right t right the fundamental between On the relationship . . we And of cannot either forget the the relevance standardized standardized medical procedures and, in some cases, 6 [1993] 2 S.C.R. 119; in the case of the Spanish Co Reframing Rights: Bioconstitutionalism in the Genet , Otago Law Review (2017) § 83).§ (2017) boost those difficulties despite the fact that the 5 lex lex artis , in BioLaw Journal BioLaw Journal ASANOFF

Causing Death and Saving Lives

, , in S. J LOVER This is the case of life saving or sustaining trea As Glover already warned in the 70’s, «[c]onventio For example, with regard to the protection of the This has sometimes forced judges to establish the fundamental fundamental rights such as personal integrity are even conceived by Jasanoff as «bio-constitution United Kingdom could be inferred for example from of Europe member States in favor of permitting the the majority of States appear to allow it» the decisions 154/2002 and 37/2011; with regard to implementation of Article 2 of the European Convent the dilemma of whether one should adopt a purely bi guarantees or should also integrate subjective and end and when it begins and life is human about what Dependence Dependence on the scientific and technological stat cal processes rights Edges of Life 7 6 5 4 2. right The fundamental life to right the of object the of The problem 2.1. offundamen the analysis that any problem The first Obviously, Obviously, no legal document clarifies what «human plains with regard to the doctrine of the ECtHR, on but we would be mistaken if we took the shadows cas G Ciarlariello v. Schacter to fetal viability. Or, concerning the end of human uncertainty but with the certitude that dying is a being can be considered simultaneously death death; as and/or Skegg expressively depicted it, «a beatin day become background, background, where changes are many times provoked b advances. technological Think, for t example, about ofdecisions. life First, practices that only a few years ago were stu not scientific not answers scientific transformed transformed todue their participation in processes as well their to as the weight attributed decisions stitutional Court considers that «human life» is an 53/1985/5). sively in relation to the concrete facts under thei on the perspective adopted (biological, ethical, th

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded 290

Essays Arruego Gonzalo «dying is no longer longer no is «dying addi in This, medicine». of practices paternalistic countries continues to be different from dying in t in dying from different be to continues countries mhss n h nto o idvda rgt o self of rights individual of notion the on emphasis cours terminal downhill extended characteristically dramatically means This [...]. disease degenerative American Court of Human Rights Rights Human of Court American interpreta an life, to right the with entitled born 264). 264). about death [...]. Third, among the major shifts in shifts major the among Third, [...]. death about a parasitic to due death from away shift a involves ter-American Commission of Human Rights Resolution Resolution Rights Human of Commission ter-American this of intention the reading, first gene at seem might «in protected, be shall life to right the that ways in which human beings characteristically die. die. characteristically beings human which in ways shift a been has there First die. we how of matters respected» and that «[n]o one shall be arbitrarily arbitrarily be shall one «[n]o that and respected» the the Kingdom necessar absolutely than more no and legitimate the contravention in inflicted as regarded be not shall establishes paragraph second Its law». by provided f court a of sentence a of execution the in save ly life». of his deprived arbitrarily be shall twentieth century and the early twenty first [...]. first twenty early the and century twentieth deprivation of his/her existence and that imposes o imposes that and existence his/her of deprivation understood be only can right the consequence, a As life «human of concept the of complexity the Beyond 2.2. natureThe of the fundamental toright life: t laration of Human Rights Human of laration as detailedlesssuchconsecrations to contrast In atrocitiesagainst the of WWII, and with langua the t which in moment historical the with consistent is 14 13 12 11 10 9 8 depicted be even have doctors death, assisted ized litical Rights litical Union medicalized processmedicalized advance of typical and recent historically is death the Way We Die We Way the «[The debate on assisted death] is new, occupying occupying new, is death] assisted on debate «[The M S. Article 2.1: «Everyone’s right to life shall be pr be shall life to right «Everyone’s 2.1: Article the to Similarly r inherent the has being human «Every 6.1: Article sha one No to life. 2.- right the has «1.-Everyone secur and life,liberty to right the has «Everyone European Convention on Human Rights Human on Convention European C (2000) L EAN (1995) § 148). (1995)§ 148). , , Assisted dying: reflections on the need for Law ref forLaw need the on reflections dying: Assisted (1966) 11 , let us examine the wording of article 6 of the of 6 article of wording the examine us let , , Oxford, 2005, 18, 325 and 86). 86). and 325 18, 2005, Oxford, ,

International Covenant International 12 oehn ta hpes o you to happens that something 9 . , article 4 of the of 4 article , (1948)

Artavia Murillo et al. v. Costa Rica (In vitro fert vitro (In Rica Costa v. al. et Murillo Artavia 10 or article 2 of the the of 2 article or , its article 4.1 states that «[e]very person has t has person «[e]very that states 4.1 article its , American Convention on Human Rights Human onConvention American otected by law. No one shall be deprived of his lif his of deprived be shall one No law. by otected (1950) Consider just three of the many profound changes t changes profound many the of three just Consider tion incompatible with the legal diversity on abort on diversity legal the with incompatible tion BioLaw Journal BioLaw cultural attitudes that affect the way we die is t is die we way the affect that attitudes cultural wording was to exclude the possibility of consideri of possibility the exclude to was wording » of the Convention, as death is the unintentional unintentional the is death as Convention, the of » ity of person». person». of ity ll be condemned to the death penalty, or executed». penalty, death the to condemned be ll in oohr utrl hne hs e t a situati a to led has changes cultural other to tion deprived of his life». It is true that it has a pec a has it that true is It life». his of deprived he richer countries» (M. P (M. countries» richer he a, rm h mmn o cneto» Cnrr t wh to Contrary conception». of moment the from ral, ollowing his conviction of a crime for which this p this which for crime a of conviction his ollowing es. Second, there have been changes in religious at religious in changes been have there Second, es. , beginning in the middle of the nineteenth century nineteenth the of middle the in beginning , a series of circumstances under which «deprivation «deprivation which under circumstances of series a xedd iepn ad lo ets rm iess w diseases from deaths also and lifespans extended the ones contained in article 3 of the the of article 3 in contained ones the ight to life. This right shall be protected by law. by protected be shall right This life. to ight y use of force (see ECtHR ECtHR (see force of use y but something something but hetoright as life aguarantee d societies where death has increasingly become a become increasingly has death where societies d -determination [...] rights previously eclipsed by by eclipsed previously rights [...] -determination emd h “pdmooia tasto” ti chang this transition”, “epidemiological the Termed ge usuallyusedtodo so. n. 23/81, Case 2141 (1981), especially § 19, and In and 19, § especially (1981), 2141 Case 23/81, n. 14 d netos ies [.] o et i ltr life later in death to [...] disease infectious nd n the State the duty to protect it. This conclusion This it. protect to duty the State the n cdmc n pbi atnin rmrl i te late the in primarily attention public and academic as «gatekeepers» as he right was generally recognised, as a reaction a as recognised, generally was right he . In the three cases, the explicit content of the the of content explicit the cases, three the In . as a guarantee that protects its bearer from the from bearer its protects that guarantee a as Charter of Fundamental Rights of the European the of Rights Fundamental of Charter », the truth is that human life is a natural fact. natural a is life human that is truth the », orm , Oxon, 2007, 198. 198. 2007, Oxon, , –

International Covenant on Civil and Po- and Civil on CovenantInternational Rivistadi BioDiritto,n. 3/2020 o do. you 8 ABST ABST . Third, the debate on assisted on debate the Third, . Tog] yn i te poorer the in dying [Though] ilization) ilization) McCann and others v. United United v. others and McCann B ATTIN (1969) , , he right to have his life his have to right he Ending Life: Ethics and Ethics Life: Ending (2012), particularly § § particularly (2012), 13 and article 2 of of 2 article and UniversalDec- uliar addition: uliar e intentional- e he increasing increasing he ion (see In- (see ion result from from result ng the un- the ng

on where where on hat affect hat

enalty is enalty No one one No , in the in , titudes titudes of life life of t it at ter- the ith of e

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded

291 Essays

t t y y s, s, c- n- titu- that that mon . The n Con- Human , omic, so- y circum- ries and to s article 23 ment or cul- or, at most, ICKSON uarantee which 16 . . o life and assisted death assisted life and o 20 . . Austria, Italy or Sweden 17 category: category: even though arti-

. . However, we should highlight that in many life and do so in the form of a guarantee or 21 or it also encompasses the guarantee of «living , this , is ofthe case the three where EU countries stential stential of conception» the right to life: the righ of human life using the term «right»; that is to protection of human life is what, in the of words . . e European Union member States’ Constitutions. th the right to life is therefore a short one [...] ce ce to the protection of human life ife. ife. The Constitutions of Slovenia, Greece, Ireland to that laid out in the previous group, that is, a tion tion to another and lies at the heart of the distin e e lead on the right to life per se» (B. D 18 s of those subject to its jurisdiction is added to ghts and freedoms of the Czech Republic or the Cons of the United Kingdom, we can distinguish between Belgium and Luxembourg son of her life outside the circumstances defined b judges have been reluctant to re-frame English com case of the Constitutions of Germany, Spain, Cypru ania, ania, Malta or Romania as well as the Charter of Fu ion Spanish, Bulgarian, Latvian, Lithuanian and Romania ned by the law. y». However, its content unfolds in different «econ ave ave preferred to work with traditional legal catego ealth protection, social security, housing, environ that the Belgian Constitution also guarantees in it le; 2.-There will be no capital punishment under an ta, ta, we infer that the «right to life» is really a g s the «inviolability» of human life of human «inviolability» s the arts. 6, 7, 15, 16, 7 and 33, respectively. . . , Oxford, 2013, 101). 22 . . 2015 SCC 5. 23 . . 15

Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista

– On the relationship between the fundamental right t right the fundamental between On the relationship . . Also the Portuguese Constitution falls into this 19 BioLaw Journal BioLaw Journal

Carter v.Carter Canada (Attorney General)

Arts. 17, 5.2, 40.3.2 and 38, respectively. Art. 24: «Right to life. 1.-Human life is inviolab Arts. 2.2, 15, 28, 93, 19 and 22.1 of the German, For example, reading the Charter of fundamental ri For example, the Constitution of Denmark. Respectively, arts. 114, 14 a) and 18. It is true Arts. 85, 27 and 4, respectively. «The history of the UK’s top judges’ engagement wi Bulgaria, Bulgaria, Slovakia, Estonia, Finland, Latvia, Lithu damental Rights and Freedoms of the Czech Republic prohibition. prohibition. The same conclusion results from the analysis of th In this sense, and leaving aside the peculiarities EU the within three situations the law. The State’s obligation to protect the live stitutions. tions of Cyprus, Eslovakia, Estonia, Finland or Mal protects against the arbitrarydeprivation of life; guarantee or a duty to protect human life human orprotect to a duty guarantee the Supreme Court of Canada, we could call «the exi Therefore, Therefore, the conception prevailing the concerning is a guarantee of human existence human of is a guarantee are, constitutionally speaking, in a similar situat a in similar speaking, are, constitutionally Finally, Finally, some Constitutions proclaim the protection say, they consecrate a «right to life». This is the First, First, Constitutions which make no explicit referen 23 20 21 22 16 17 18 19 15 right right to life is the prohibition of depriving a per law law around the concept of the right to life. They h allow the European Court of Human Rights to take th stances». have abolished capital punishment. orhave By abolished capital punishment. chance not assisted death is fully the legalised, Netherlands, cases the meaning of the «right to life» is similar Whether the right simply protects «bare existence» under certain conditions», varies from one jurisdic or Poland are examples imposition on public authorities to protect human l Second, Constitutions which expressly protect human cle 24 is titled «The right to life», its content i content life», its to right «The titled cle is 24 Rights and the United Kingdom Supreme Court cial and cultural» rights relating to employment, h ture, and whose conditionsexercise have to be defi the «right to lead a life according to human dignit prevailing impression which emerges is that the top

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded 292

Essays Arruego Gonzalo existence of individual,of existence enriched the understan its conception, existential strict the to according If, the tion rightof tolife. or Spanish Constitutional Court decision 181/2000/8 decision Court Constitutional Spanish or P cur outside the strict circumstancesestablishedby strict the outside cur lif protect to duty a as intelligible only is right premeCourt either directly or indirectly. Conversely, concerns Conversely, indirectly. or directly either State to permit or facilitate his or her death» ( death» her or his facilitate or permit to State and being human a of death the to lead might which act state or law the where engaged is life to right 29 28 27 26 25 24 the call could we what unfolds: tee between the tion different two intrendswhichthe rious aggressions or threats or aggressions rious rightcontent is the The protecfocused of hence on vention», but not in the right to life to right the in not but vention», t in reflected be may they [...] protection require as recognised are aspects these that extent the To living of quality the with do to issues with cerned existenc biological or physical the is right the of to be lived in certain conditions which qualify as qualify which conditions certain in lived be to sions on capital punishment: the law is determining is law the punishment: capital on sions ab contradictory nothing is there why explains also prohibition» asse categorically ECtHR the why reason the is This Madrid, 2008; and L. Z L. 2008;and Madrid, The The sequently,tothe legitimate demands bearer.of its ri the duties the to regard with important pecially conditions,the prohibition the of absolut not but death causing of prohibition the is formulation of the right to life» ( life» to right the of formulation r no see We rights. security and liberty as treated ends with death anddeathconstitutionalwhosewith protectionends i life human explains, Court Constitutional Spanish understanding of consequence the is and proclaimed EMÁN epciey G A G. Respectively, foremost and first is Convention the of 2 «Article ca Court Constitutional Spanish the to regard With t the by engaged only was right the case, each «In 53/1985/5. decision Court Constitutional Spanish Pretty v. United Kingdom United v. Pretty strict (coord.), (coord.), conception appears to be the prevailing one, is mor is one, prevailing the be to appears conception 28 26 , why the right to life is described as «reactional as described is life to right the why , . .

eeh sntro aragonés sanitario Derecho RRUEGO UCCA , , (2002) § 39. (2002)§ 39. Constitutional dilemas Constitutional , , sseca aiai catv y eehs fundamenta derechos y coactiva sanitaria Asistencia 27

Carter v. Canada (Attorney General) (Attorney Canada Carterv. . As explained above, existence is a biological fac biological a is existence above, explained As . arbitrary strict 25 . A similar conclusion has been reached by the Cana the by reached been has conclusion similar A . and the the and Zrgz, 04 F R F. 2004; Zaragoza, , Pretty v. United Kingdom United v. Pretty deprivation life. of BioLaw Journal BioLaw ion imposes death or an increased risk of death on death of risk increased an or death imposes ion about autonomy and quality of life have traditiona have life of quality and autonomy about , Oxford, 2009. 2009. Oxford, , e and as the guarantee that its deprivation will no will deprivation its that guarantee the as and e eason to alter that approach in this case [...] the [...] case this in approach that alter to eason . . a prohibition on the use of lethal force or other other or force lethal of use the on prohibition a the right merely preserves the physical or biologi or physical the preserves merely right the se law see law se dignified. As we shall see shall we As dignified. hreat of death. In short, the case law suggests th suggests law case the short, In death. of hreat or what a person chooses to do with his or her lif her or his with do to chooses person a what or dingproblematically guarantees life that ough also ad s h EtR xlis te ih «s uncon- «is right the explains, ECtHR the as and e he rights guaranteed by other Articles of the Con- the of Articles other by guaranteed rights he does not confer any right on an individual to requir to individual an on right any confer not does enriched law. In other words, the core meaning of the rightthe of coremeaning thewords, other Inlaw.

ght to life imposes on public authorities and, con- and, authorities public on imposes life to ght tingexistencephysicalits the against s holder of so fundamental to the human condition that they that condition human the to fundamentalso existentialunderstanding the guaran-rightaof as s a «process» which begins with conception and conception with begins which «process» a s when the State can legitimately kill a citizen and citizen a kill legitimately can State the when out proclaiming the right to life including provi- including life to right the proclaiming out l: ny usd te eal etbihd limited established legally the outside only ely: is «gradual in«gradualnature» is rts that article 2 ECHR «is first and foremost a foremost and first «is ECHR 2 article that rts human life purely in biological terms. As the As terms. biological in purely life human

Spanish Constitutional Court Edict 241/1985/2 241/1985/2 Edict Court Constitutional Spanish understandings of the existential concep- existential the of understandings –

Rivistadi BioDiritto,n. 3/2020 2015 SCC 5 §§ 62 and 63). and 62 §§ 5 SCC 2015 EY e consistent with the way the right is right the way the with consistent e », «defensive» or «negative» or «defensive» », , , (2002) § 54). (2002)§ 54). uaai y eehs fundamentales derechos y Eutanasia infra 24 e e l Ly 6/2002 Ley la en les . Therefore, if theifTherefore,object . , this distinction is es- is distinction this , t and, therefore, the therefore, and, t existential existential

a person, a dian Su- dian 29 conduct conduct lly been lly and it it and at the the at i J. in , t oc- t e a e cal e- e. t ,

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded

293 Essays

, , t t ? ? g g n o o fy fy a is nd. nd. the the been been may basi- for the he he indi- ute us. It ct from it. ing Party’s ty, ty, but this and if the s of risk. conditions. conditions. 32 be void from be from void living de facto de o life and assisted death assisted life and o dividual is already dead. dead. is already dividual (2005) 93,§ among others). ? ? . . This also allows us to understand (par- 30

, Oxford, 2010, 105). . . Yet this makes it barely intelligible: there is 31 l l right to life is that, as a its guarantee, conten its its bearer, which are transformed and expand- of the right to life. On the contrary, it also im- the recurring assertion that the prohibition to . . This is due to the fact that the use of the term culiar culiar characteristics of the right to life: it is is is not necessary to infringe the right wn wn life have traditionally been understood as an ic authorities: the obligation to preserve physical damental right to life would lifeto right damental the extent of the public authorities’ duty to pro- formed: formed: it is the State’s duty to protect the right e «enriched» interpretation of the existential con- ntee, ntee, it strictly has a reactional content requirin the later enactments of Protocols 6 and 13 [...] It the the right on, to do so also ensuring certain certain ensuring also soon, doto rities to cause death to appreciate that the right has bee in the death of the individual. This fact leads to e’s duty e’s to protect to life seems irresistibly expa e strict conception by adding to mere preserva- by theadding conception e strict .] a detained person maintains a hunger strike this Nevmerzhitsky v. Ukraine hose to goal hose is protect life. human Traditionally, will be lived in a set of circumstances which quali slippery slope slippery y do we use the adjective «enriched» toit describe «enriched» theywe adjective douse

deprived of his or her life. The death penalty has t that is independent from the region’s protection ation? ation? Because the reactional nature of the right t al: al: it is not a strictly right but a to guarantee t 120/1990/7. fe fe except when the state legitimately plans to exec are not reflections of the right to life but distin s right to physical integrity and the High Contract n» ( for ratifying parties in respect of the death penal st effective aggressions but also againstsituation

Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista

– . Its violation, however, usually means that the in that meansthe usually however, . Its violation, On the relationship between the fundamental right t right the fundamental between On the relationship 33 The right to life andconflicting interests BioLaw Journal BioLaw Journal

For example, Spanish Constitutional Court decision For example, the ECtHR has argued that «[w]hen [.. The ECtHR has reiterated that it is not necessary «Here the message is simple: we have a right to li practically eradicated from Europe but in a movemen does not stem from an individual’s right not to be right to life» (E. WICKS, significant, however, that the additional Protocols The relevant The question relevant is that the ofscope the Stat The point of departure of this expansive dynamic is deprive from existence does not exhaust the content poses on the authorities on poses a set of duties w the authorities positive ed. ed. life: a right to the of dimension The positive 2.3. life as a guarantee of human existence is not trans and therefore the scope of the possible demands by as «dignified». But, why is it only a partial alter As As argued above, the main feature of the fundamenta basically basically consists of imposing duties upon the publ concepti ofenriched the the case in existence and, paradox: if it had not been interpreted that death cally a prohibition whose violation usually results tect the lives of those under their jurisdiction. their jurisdiction. under those of thetect lives In addition, we should underline one of the most pe no conflict because what is at stake is determining tially) why decisions concerning the end of one’s o (impossible) conflict among the person’s own rights «right» «right» with regard to right the to life is equivoc vidual vidual and a source of obligations for public autho 33 31 32 30 therefore therefore is simply establishing the boundaries of They represent a limitation of (state) sovereignty inevitably lead to a conflict between an individual’ is a message long since forgotten in Europe due to positive obligation under 2 of the Article Conventio violated and that the right protects not only again duty to protect life had not been expanded, the fun been expanded, not life had duty protect to The reason is that it problematically transcends th transcends problematically The is that reason it tion of physical existence the guarantee that life ception of the right. Why does it alter it? And, wh And, it? alter it does Why the ofright. ception This This scenario is partially altered when we adopt th its bearer’s point of view. Notice that, as a guara violated when protection

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded 294

Essays Arruego Gonzalo life really so detailed as to require that an inves an that require to as detailed so really life example, For conclusion. the and point starting the t sometimes that true equally is it step, mentative tha true is it Although extension. gradual their or prog the example, for Consider, evolved. have right po the how to regard with arise difficulties First, a problematica son in custody custody in son dangerous activities see ECtHR ECtHR see activities dangerous la Convención Americana sobre Derechos Humanos) sobre Derechos Americana Convención la la integridad personal –Interpretación y alcance de alcance y –Interpretación personal integridad la m enel ambiente medio el con relación en estatales the right to life goes beyondrightgoestolifepreservation the the mere numb detailed more the killing, «arbitrary» against the on focused (1984) 14 and (1982) 6 numbers While life with dignity» with life (§ 3) the lives of those in danger in those of lives the life- potentially ordering of aim the with measures tim’s relatives»? tim’s possible, whenever body, victim’s the of autopsy an carries the potential of both coercive overreach an overreach coercive both of potential the carries tive duty to «protect the lives of those under its its under those of lives the «protect to duty tive noviembre de 2017, solicitada por la República de C de República la por solicitada 2017, de noviembre eea Comments General Na United the of case the In existence. «dignified» notedAslife. above, happensthis the when rightd alte the witness we importantly, more and Secondly, Calvelli and Ciglio v. Italy Italy v. Ciglio and Calvelli fers to it and using a vague language. language. a vague using and it to fers (2004). p the concerning 116; and 115 §§ especially (1998), 38 37 36 35 34 provisions Law Criminal causin of prohibition the transposes law the cally, cohe was understood been have obligations these way manded a «thorough» autopsy in the presence of a «p a of presence the in autopsy «thorough» a manded 2017. 2017. erty Seriously: Reconsidering Criminal Liability Un Liability Criminal Reconsidering Seriously: erty to potentially to dangerous activities the protectior Without judging the realizability of such right, i right, such of realizability the judging Without Nations, United CCPR, thir of acts violent the against protection the On life human of protection the to regard With Vid. , among others, ECtHR ECtHR others, among , slipperyslope vid.

36 ECtHR Or, what is the scope of the obligations imposed o imposed obligations the of scope the is what Or, n ril 6 f the of 6 article on 38 General comment n. 36 n. comment General . . (2002) and and (2002) enn . ntd Kingdom United v. Keenan 34 pt it fre n ipeet nrs o ee ado even or norms; implements and force into puts ; 35 . nrıdz . Turquía c. Öneryıldız

. The dilemma is how to define accurately the scope the accurately define to how is dilemma The . Guerra and others v. Italy v. others and Guerra Vo v. France v. Vo nentoa Cvnn o Cvl n Pltcl Right Political and Civil on Covenant International via via BioLaw Journal BioLaw (2019) § 28. Its draft (2017) was even more detaile more even was (2017) draft Its 28. § (2019) t is striking that barely one of its 70 paragraphs paragraphs 70 its of one barely that striking is t der Article 2 of the ECHR the of 2 Article der d parties it is usual to quote ECtHR ECtHR quote to usual is it parties d the Criminal Law in the ECtHR’s case law see, among see, law case ECtHR’s the in Law Criminal the los artículos 4.1 y 5.1, en relación con los artíc los con relación en 5.1, y 4.1 artículos los d dilution of the right in N. in right the of dilution d olombia: Medioambiente y derechos humanos derechos y Medioambiente olombia: (2004). A critical exam of this doctrine, concludi doctrine, this of exam critical A (2004). arco de la protección y garantía de los derechos a a los derechos de garantía y protección de la arco , especially §§ 212 y ss. ss. §§ y 212 especially , ositive duties with regard to the suicidal impulses suicidal the to regard with duties ositive (2004) or IACtHR IACtHR or (2004) tigation into a violation of the right «should incl «should right the of violation a into tigation jurisdiction», an obligation that is clearly expose clearly is that obligation an jurisdiction», on on environment?of the athologist» representing the family of the deceased the of family the representing athologist» 20) wt rgr t te ik eeae b indus by generated risk the to regard with (2001); sitive duties linked to the strict conception of th of conception strict the to linked duties sitive t we can identify causal connections in each argu- each in connections causal identify can we t oes not only protect not oes only biological butexistencealso threatening or hazardous activities and protecting and activities hazardous or threatening er 36 (2019) expressly proclaims that the scope ofscope the proclaimsthat expressly (2019) 36 er he connection disappears as soon as we examine we as soon as disappears connection he of life and alsoencompassesrightandtoa «enjoylife of the tions, this shift can be observed in the different the in observed be can shift this tions, are the positive duties arising from the right to right the from arising duties positive the are ressive recognition of a «procedural» dimension «procedural» a of recognition ressive dah o rvt rltos seily through especially relations private to death g (1998) and, particularly, ECtHR ECtHR particularly, and, (1998) in the presence of a representative of the vic- the of representative a of presence the in ration of the object of the fundamental right to right fundamental the of object the of ration core meaning of the right as the prohibition the as right the of meaning core rent with the core content of the right. Typi- right. the of content core the with rent –

Rivistadi BioDiritto,n. 3/2020 Opinión consultiva OC-23/17 de 15 de de 15 de OC-23/17 consultiva Opinión , in , n public authorities with regard with authorities public n

M The Modern Law Review Law Modern The 37 AVRONICOLA

Osman v. United Kingdom Kingdom United v. Osman of the State’s posi- State’s the of , , Öneryıldız v. Turkey v. Öneryıldız Taking Life and Lib- and Life Taking t preventive pts ulos 1.1 y 2 de de 2 y 1.1 ulos

(Obligaciones (Obligaciones expressly re- expressly

d as it de- it as d la vida y a a y vida la s ng that it that ng of a per- a of (1966). others, others, , 80, 6, 6, 80, , . . d to d ude trial e a

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded

295 Essays

. . ed ed ta- but but 43 New New York ctions» , in , 12, 2, 2012; on the nter-American nter-American Court , Oxford, 2017., o life and assisted death assisted life and o ty linkage enriches the The Meaning of «Life»: Dignity , ICKS Death and its dignities , , . . In the Court’s view, the right there- (1999) § 144. § (1999) 41

iterated iterated that the fundamental right to life Human Rights Law Review OVELAND e» to it «as one of the most pro-fundamental , in em correctly into the system of fundamental right right to life is immediately connected with the l l right» as, along with human dignity, they are proach proach is admissible with regard to the right to n n of the understanding of the protective dimen- s surrounding human life. A small step forward ting ting and trivializing the right to life as a conse- . . related to environment, health, food, shelter, ht ht and that can turn it into something unrecog- life life principle» and from the aforementioned fact uence of uence of that some are the in- usually excesses alizable. alizable. where appropriate, to other different principles ee ee K. L ption ption of those conditions. This is a subtle shift, nditions nditions are connected to other constitutional val- fe: fe: from mere preservation of physical existence to nnection nnection that usually, and not by chance, is estab- of the other rights and freedoms in the Convention olutely olutely dependent on the will and resources of the nce there can be no bearer of rights, is usually us tion which is in reflected immediately its interpre asy asy to establish a link between almost any imagina- , among others, E. W ng ng fundamental right to life demands with requests Human dignity and assisted death mong others. al.) v. Guatemala Treaties vid. (ed.), which makes it «absolute and not subject to restri to subject not and «absolute it makes which 42 UDERS » » of every fundamental right

Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista prius . . The same line of reasoning has been used by the I

– 39 . . As explained above, the right to life-human digni On the relationship between the fundamental right t right the fundamental between On the relationship 44 (2002) §§(2002) 37 and 65. , 91, 2016 and S. M BioLaw Journal BioLaw Journal

. . Moreover, the Spanish Constitutional Court has re 40 Pretty v. United Kingdom Case of the “Street Children” (Villagran-Morales et Spanish Constitutional Courtdecision 53/1985/3, a Spanish Constitutional Courtedict 304/1996/3. Spanish Constitutional Courtdecision 48/1996/2. On the connection right to life-human dignity use of human dignity in the assisted death debate s life» of Human Rights to conclude that «no restrictive ap lished between it and human dignity. dignity. human and it between lished In this sense, the obvious fact that without existe 40 41 42 43 44 39 We might partially explain this dynamic Wethis might as partially explain dynamic a conseq curred in interpreting the right to life and the co and and values. There is an increasing danger of distor it unre making even and it over-involving of quence sion of the right. This carries the risk of confusi that, despite their legitimacy, can be traced back, One can certainly perceive an uncontrolled expansio and the Right to Life in International Human Rights «constitutes «constitutes the essential and principal fundamenta the «logical and ontological As As we can see, and unsurprisingly, the fundamental notion of human dignity ble ble matter and the material and spiritual condition ues ues and principles. The problem is how to insert rights. th Note that, taken to the extreme, it is relatively e and we risk trivializing the right by making it abs nizable. nizable. It is true, however, that many of those co one that inevitably transforms the scope of the rig a a guarantee of living under certain conditions (e.g etc.), eventually even the including person’s perce strict understanding strict ofunderstanding the fundamental right to li University Law Review fore has «a singular expansive nature» expansive «a singular fore has to the improperly grant toright life a unique posi that, without the right to life, «enjoyment of any is rendered nugatory», the ECtHR awards «preeminenc visions of the Convention» tion. For example, departing from the «sanctity of

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded 296

Essays Arruego Gonzalo utf a ie ngtv rgt hn ut h prohib the just than right negative wider a justify por la República de Colombia: Medioambiente y derec y Medioambiente Colombia: de República la por that way, is valuable, and that seems to justify a a justify to seems that and valuable, is way, that (to value great of is liberty at living If murder. such functions and activities as constitute the bar the constitute as activities and functions such rig the include matter, the of view any in must, it the upon depend would right this of components the fellow with commingling and mixing and about moving for facilities and shelter and clothing nutrition, positive rights. If you are drowning, and all that that all and drowning, are you If rights. positive t destroying of or lives people’s other endangering mental medical treatments see see treatments medical mental Issues Legal Current Health. Global entations in Law, Politics and Ethics and Politics Law, in entations (1999) § 144. §144. (1999) considered excessive to extend the lives of those w those of treatments lives the extend two to excessive considered of (NHS) Service Health National the or «increasing life expectancy, which will involve involve Y (J. will needs» health population’s which expectancy, life «increasing or (2017). In August 2006, 2006, August In (2017). Value of Life: Somatic Ethics & the Spirit of Bioca of Spirit & the Ethics Somatic Life: of Value seta mdcns n ey: nelcul property intellectual Kenya: in medicines essential domesticcleaning»? onl not water quality to access the Or environment? «potentiallytoactivities dangerous of pervision» impose directly really life to right the Does life? the are Where matters? environmental about what And ih t lf i nt ut tertcl possibility theoretical a just not is life to right s drastically which of absence the literacy, female em irssil t epn. h gons ed o a to tend grounds The expand. to irresistibly seems Mullin v. The Administrator, Union Territory of Del of Territory Union Administrator, The v. Mullin along goes that all and dignity human with live to education…? 49 48 47 46 45 anuncontrolled ness «ballooning the content»of of transcende the negatingWithout authorities. public rescue, at least if the cost to the rescuer is not not is rescuer the to cost the if least at your rescue, violate not I do plight, your disregard I and Oxford, 2008, 212 and 213). 213). and 212 2008, Oxford, dgiid existence»? «dignified o eape de te ih t lf eti acs t access entail life to right the does example, For obligations arising from the fundamental right («to right fundamental the from arising obligations ee rwig wud t o icue rgt o food it does to those, includes right it if a And include ill? dangerously not it would drowning, were For example, granting access to generic antiretrov generic to access granting example, For reflec to start we as soon as explains, Griffin As Inter-American Court of Human Rights Rights Human of Court Inter-American assert has India of Court Supreme the example, For Rights Human of Court Inter-American 48

49

England’s National Institute for Clinical Excellenc Clinical for Institute National England’s 47 n wih odtos ae n xsec dignified: existence an make conditions which And

Hristozov and others v. Bulgaria v. others and Hristozov ORKE , Farnham, 2010, 4). 2010, Farnham, , , 16, 2012; with regard to ECtHR’s doctrine on the the on doctrine ECtHR’s to regard with 2012; 16, , , , Introduction Opinión consultiva OC-23/17 de 15 de noviembre de 2 de noviembre de 15 de OC-23/17 consultiva Opinión Case of the “Street Children” (Villagran-Morales et (Villagran-Morales Children” “Street the of Case take an indisputable human right), then living, as as living, then right), human indisputable an take reading, writing and expressing one-self in diverse in one-self expressing and writing reading, i i js wa hs apnd (. G (J. happened» has what just is it ; pital I have to do to save you is to toss you the life the you toss to is you save to do to have I great? And if it includes a right to be tossed a li a tossed be to right a includes it if And great? BioLaw Journal BioLaw ht to the basic necessities of life and also the rig the also and life of necessities basic the to ht t «on the grounds for a right to life [...] the sco the [...] life to right a for grounds the «on t claim to some broader preservation of life. It would It life. of preservation broader some to claim , in J. Y J. in , with it, namely, the bare necessaries of life such such life of necessaries bare the namely, it, with lo nld a ih t cniin, uh s la w clean as such conditions, to right a include also hi heir rationality. What is more, it would seem to ju to seem would it more, is What rationality. heir hortens a child’s life? This ballooning of the cont the of ballooning This life? child’s a hortens ih t lf? os h rgt o icue positiv a include not right the Does life? to right e minimum expression of the human-self» ( human-self» the of expression minimum e promote the right to life») are «reducing infant m infant «reducing are life») to right the promote ith terminal bowel cancer by five months, months, five by cancer bowel terminal ith at-onefiig n te ih t health to right the and anti-Counterfeiting , (1981) 1 SCC 529). In Yorke’s opinion, among the p the among opinion, Yorke’s In 529). SCC 1 (1981) , in , the exhaustive «regulation, licensing, control or or control licensing, «regulation, exhaustive the aig n dqae elhae evc t tn t th to tend to service healthcare adequate an having eeaiy ht utfe mr ta js a prohibi a just than more justifies that generality ed that «[w]e think that the right to life includes life to right the that think «[w]e that ed irals to fight AIDS in Kenya, Kenya, in AIDS fight to irals extent of the economic development of the country, country, the of development economic the of extent life and health» due to their negative impact on th on negativeimpact their to due health» and life human beings. Of course, the magnitude and content and magnitude the course, Of beings. human hos humanos hos to o mre – a, poiiin f gratuitousl of prohibition a say, – murder of ition o lt sae oe cne bcue hi cs was cost their because cancer bowel stage late for Daedalus ptnily iesvn medicines? life-saving potentially o if one were starving, or to medicine if one were were one if medicine to or starving, were one if the right ORKE nce of the underlying questions, we seem to wit- to seem we questions,underlying the of nce y for drinking but also for «personal hygiene andhygiene«personal for also butdrinking for y (ed.), (ed.), limits of the duties arising from the right to right the from arising duties the of limits (2012) and and (2012) , 137, 1, 2008. 2008. 1, 137, , – 45

The Right to Life and the Value of Life: Ori- Life: of Value the and Life to Right The Rivistadi BioDiritto,n. 3/2020

. (Obligaciones estatales en relación con el con relación en estatales (Obligaciones e (NICE) ruled against the inclusion in inclusion the against ruled (NICE) Gard and others v. United Kingdom Kingdom United v. others and Gard vid. vid. RIFFIN od cohs shelter, clothes, food, J. H J. right to access experi- access to right ARRINGTON , , n ua Rights Human On al.) v. Guatemala v. al.) ‐ vid. vid. belt next to me, me, to next belt well as living in in living as well 46 Francis Coralie Coralie Francis 017, solicitada solicitada 017, pe of the right right the of pe ht to carry on carry to ht forms, freely forms, , in in , fe o no a enjoy To N. R N. as adequate adequate as ‐ , , belt if one one if belt stify some some stify ent of the of ent

rgt to right e Access to to Access the right the seem to to seem a and Law ater and and ater ortality» ortality» OSE in of tion ositive ositive , , The but but su- of e e y ,

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded

297

Essays

- es es ns ns ife ife ro- ve, ve, e e of and nción nción e and 52 sonal – lation of eath. It is question the anctity of life ed at all costs” d d death to be Carter v. Canada o life and assisted death assisted life and o theynor that are totally un- ned death». 54 that individuals cannot “waive” their has come to recognize that, in certain , the Italian Court Constitutional 51

ers ers individuals with a capacity of self- scope scope varies and, on the other hand, the fact ssisted death t, the Italian Constitutional Court or the Ger- of the European Court of Human Rights show ate it in the right to life. Neither the Colombian s. s. On the one hand, the existence of a constitu- not changed, the interpretation of the positive as as inferred from the Constitution a fundamental , though with different scope, the constitutionali- with though different scope, , lien lien to it. From this point of view, the right to l idual idual to manage the final moments of his life in a se se death) as well as a set of positive duties (to p ven ven those jurisdictions that recognize the constitu of her life is entitled to respect» ( e. It is a negative or reactional right which impos re flawed because of inconsistencies. of inconsistencies. because re flawed tía de los derechos a la vida y a la integridad per way it is repeatedly proclaimed and interpreted. interpreted. and proclaimed it is repeatedly way tion 7 is rooted in a profound respect for the valu ition ition of assisted death » understanding of the fundamental right to life. life. to right the offundamental » understanding ng ng from the right to life have important implicatio , «[...] we do not agree that the existential formu , en relación con los artículos 1.1 y 2 de la Conve stitutional stitutional rights and principles involved, the fre Therefore, Therefore, a hypothetical right to end one’s own li l of lifesaving or life-sustaining treatment. The s and security of the person during the passage to d rather rather than a “right to life”, and would call into Carter nger seen requireto that all human life be preserv ). ). have found the criminal legal framework on assiste 2015 SCC 5. Cappato §§ 111 §§ y 121. 53 Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista

– 2020, which enshrines the «right to a self-determi On the relationship between the fundamental right t right the fundamental between On the relationship th Sopinka J.). And it is for this reason that the law

an absolute prohibition on assistance in dying, or . . And the Canadian CourtConstitutional 50 2015 SCC 5 63).§ requires BioLaw Journal BioLaw Journal at p. 595, per

,

Carter v.Carter Canada (Attorney General) See, mainly,See, Decisions C-239/97 and T-970/14. Decisions 207/2018 and 242/2019 ( Judgement of February 26 As the Canadian Supreme Court explains in Rodriguez the German Constitutional Court related. related. On the contrary, the positive duties arisi for the eventual regulation of assisted death. ofdeath. assisted regulation eventual for the Thus, while the nature of the fundamental right has duties arising from it has: in the light of the con determination determination with regard to one’s own death whose tional context of rights and principles which empow a ofdecisions end life governing laws that current that the right life to the precludes neither recogn unconstitutional unconstitutional on two separate but related ground Furthermore, the doctrine of those four courts and 50 51 52 53 54 medio ambiente en el marco de la protección y garan Interpretación y alcance de los artículos 4.1 y 5.1 3. The relationship between 3.the life to a The relationship andrightbetween As described above, the right to life is a guarante (Attorney General) the right to life on the public authorities a prohibition (not to cau tect the lives of those under their jurisdiction). circumstances, an individual’s choice about the end right to life. This would create a “duty to live”, human life. But s. 7 also encompasses life, liberty ( for this reason that the sanctity of life “is no lo whether whether or not with the help of others, is simply a legality of any consent to the withdrawal or refusa is one of our most fundamental societal values. Sec In In this sense, the Colombian Constitutional Court h right to a dignified death which entitles the indiv medicalised context tional legitimacy of assisted death do not accommod Constitutional Court, nor the Canadian Supreme Cour havewhich Court, all recognized man Constitutional «existential the altered have ofdeath, ty assisted shows an inelasticity which is consistent with the with is consistent which inelasticity an shows This brings us to an extremely illuminating fact: e Americana sobre Derechos Humanos)

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded 298

Essays Arruego Gonzalo tHR evalua after probably death assisted on prohibition which have adopted «a liberal approach» on the matt the on approach» liberal «a adopted have which to the will to die of those who are not capable of capable not are who those of die to will the to will be an undignified and distressing end to her l her to end distressing and undignified an be will e from law «by applicant the preventing that clude» fro evolved has doctrine Court’s the sense, this In more, Court the has concluded the that decision to Initially, the Court clearly excluded any assistanc any excluded clearly Court the Initially, death ( death 61 60 59 58 57 56 55 private to life (article8 ECHR) t belief the and autonomy personal of principle the 2 (article life human protect to duty positive the progressively and subtly has death assisted garding perf the is consequences, last its to taken somehow Rights, Human of Court European the of doctrine The least at under certain well definedcircumstances, to and life her end to person a of will responsible (eds.), (eds.), life» of one is consequence, in acting and question this he provided end, will life her or his point what at from its doctrine that the individual’s will yielde will individual’s the that doctrine its from (2013) § 59, where the Court expressly appeals to t to appeals expressly Court the where §59, (2013) f uoe ebr tts ae rnltd h positiv the translated have States member Europe of strictions it strictionsit recognizedbecan and regulated b exists, others of help the with so do to and life and and precisely to ensure that her will is free and respo and free is will her that ensure to precisely rath but life, her end to resolution person’s sible Home Department (Interested Party) (Interested Department Home Public of Director v. (Appellant) Pretty Dianne Mrs «by virtue of [its] trespass on the public interest public the on trespass [its] of virtue «by respect for private life»private for respect life J. D J. ECtHR ECtHR ECtHR ECtHR EComHR o examination the from ranges case-law Court’s The 57 Haas v. Switzerland Switzerland v. Haas Koch 60 . In the end, the Court has recognized that article that recognizedhas Court the end, the In . ORSCHEIDT . This has transformed the discussion: the debatediscussion:hastransformed the the This . Health and Human Rights in Europe in Rights Human and Health Pretty Pretty v. United Kingdom United v. Pretty Switzerland v. Haas Keenan v. United Kingdom United v. Keenan Haas v. Switzerland Switzerland v. Haas ), to those who suffer from a mental illness ( illness mental a from suffer who to those ), R v. United Kingdom United v. R ) to the State’s positive duties and the requiremen the and duties positive State’s the to ) , Euthanasia and physician-assisted suicide from a hu a from suicide physician-assisted and Euthanasia

(2011) § 55. §55. (2011) 59 , to expressly affirm that «an individual’s right t rightindividual’s«an that affirm expressly to , (2011) §§ 54 and 57. 57. and 54 (2011)§§ (2011) § 51; ECtHR ECtHR 51; § (2011) (1983) § 13. §13. (1983)

55 (2002) § 67. (2002) §67. . (2001); [2001] UKHL 61 § 8. §8. 61 UKHL [2001] , Antwerp, 2012, 188. It is true that the vast majo vast the that true is It 188. 2012, Antwerp, , vid. , in this sense, Lord Bingham in in Bingham Lord sense, this in , 61 BioLaw Journal BioLaw Koch v. Germany v. Koch . he applicant’s «right to end her life» (§ 66). (§life»66). her toend «right applicant’s he ting their (in)capacity to neutralize its inherent inherent its neutralize to (in)capacity their ting taking their own lives due to their clinical condit clinical their to due lives own their taking rsctos Rsodn) n Sceay f tt f State of Secretary and (Respondent) Prosecutions Haas e in the death of others from the concept of privac of concept the from others of death the in e d to the public authorities’ positive duty to prote to duty positive authorities’ public the to d ut rather how and with which requirements and re- and requirements which with and how rather ut ECHR) has evolved through a gradual recognition of recognition gradual a through evolved has ECHR) er ( er nsible and to protect vulnerable persons vulnerable protect to and nsible of protecting life» protecting of do so with the assistance of others does not yield not does others of assistance the with so do er obliges the State to adopt preventive measures preventive adopt to State the obliges er to theState’s obligation life.toprotect f the justification of the blanket prohibition on a on prohibition blanket the of justification the f or she is capable of freely reaching a decision on decision a reaching freely of capable is she or ife» constitutes «an interference with her right to right her with interference «an constitutes ife» dte ipsd y ril 2 CR no h blanket the into ECHR 2 article by imposed duties e m the assertion that it was «not prepared to ex- to prepared «not was it that assertion the m endone’sis own life protected article by ECHR. 8 hat end of life decisions are reflected in the righ the in reflected are decisions life of end hat Haas xercising her choice to avoid what she considers she what avoid to choice her xercising changed. Indeed, the Courts’ understanding of understanding Courts’ the Indeed, changed. ) and to those who are simply tired of living ( living of tired simply are who those to and ) ect example of how the traditional scenario re- scenario traditional the how of example ect h apcs f h rgt o epc fr private for respect to right the of aspects the 2 ECHR cannot prevail over a free and respon- and free a over prevail cannot ECHR 2 is no longer no is hc te emn osiuinl or has Court Constitutional German the which , , ts to access assisted death in those jurisdictions jurisdictions those in death assisted access to ts Koch (2012) § 52; and ECtHR and 52; § (2012) –

Rivistadi BioDiritto,n. 3/2020 and and man rights perspective rights man whether a right to end one’s own endone’sown rightto whethera Gross 56 . It was even possible to infer to possible even was It . The Queen on the Application of Application the on Queen The ). And it has done so in relation relation in so done has it And ). o decide by what means and means what decide by o Gross v. Switzerland Switzerland v. Gross , in B. T B. in , rity of the Council Council the of rity risks; see EC- see risks; 58 OEBES ion ( ion . Further- .

Gross ssisted ssisted or the the or Pretty Pretty et al et ). ). ct y t , . .

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded

299 Essays

s d d o o a a a to to on on d with reasons will. On ulnerable to be vul- r to explain UK Supreme ermination. ut ut the difficulties , how can we justify 64 ) o life and assisted death assisted life and o mined death» cannot be cir- al al is to guarantee freedom the the patient (to die without Cappato , Haas , ,

Pretty , extreme extreme circumstances that usually entitle an ppellants) v. Ministry of Justice (Respondent); R ( tion tion of those who are vulnerable. In this sense, contingent justification of the «blanket prohibi- usually adopted by those legal orders that have on of the aforementioned safeguards. safeguards. ofaforementioned on the ved. ved. This explains why courts do no longer con- regulated, the duty to protect life would simply ows, ows, those precautions usually the transcend ob- are are very often acknowledged in the reasoning of h h the obligations arising from the right to life is ies: ies: how can we guarantee the freedom and re- the process of informing patients about alterna- lised taking account lised into condition her clinical as tect tect life as being independent of the person's will the ofconstitutional framework values principles, lying lying with the duty to protect human life imposed owever, owever, is that this conception of the obligation t apparent inconsistencies. The principal question i tion present in the fact that those usually entitle e decision to die is reached freely and responsibly to preserve life would be We disproportionate. can lising assisted death? assisted death? lising Carter every every person ofregardless (to decide circumstances alliative alliative care). Moreover, some jurisdictions seem suffering suffering of those who request assistance to die an f f the risks could be neutralized there would be no «the real question [...] is how much risk to the v substantive circumstances alien to the individual’s doctrine. every stage of her life and there is no need for he of of others are, at the same time, usually considered ate suicide by the invulnerable» (Lord Sumption in ociety must respect it as an expressionself-det of as the justification to prohibit assisted death, b February 2020 decision, the «right to a self-deter per se

th Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista

– . . To put it from a different perspective: if the go On the relationship between the fundamental right t right the fundamental between On the relationship 63 , because it provides more certainty and safety to 62 BioLaw Journal BioLaw Journal

. . R R (on the application of Nicklinson and another) (A 65 This is of course a contingent argument, because i But we cannot forget either the apparent contradic See, for See, example, the Italian Constitutional Court As the Court explains in its 26 we have progressively shifted from an absolute to a to ensure freedom and responsibility and the protec tion» how and when her life will end) is lega nonetheless substantive requirement pain and suffering) and more effective implementati effective more and suffering) and pain how to justify that a faculty apparently innate to But, But, as the German Constitutional Court doctrine sh ligation to preserve life and force us to face some cumscribed to a clinical condition or to any other the contrary, the right belongs to every person at or to justify decisionher free to die: State and s share share the belief that the model most consistent wit tive tive therapeutic choices, such as availability of p 64 against the legalisation of assisted death. 65 62 63 (for example, the need to reiterate the decision or «medicalised» one sponsibility sponsibility of an irreversible decision while comp life? to right by the fundamental This perspective explains the procedural safeguards legalised assisted death in order to verify that th And And this is, precisely, where the crux of problem l the faculty to end their lives with the assistance we are prepared to accept [...] in order to facilit Court, yield. Otherwise, the imposition of the obligation still trace this rhetoric in the references to the overcame overcame these apparent inconsistencies: under the individual to seek assisted death where it has been and rights and with how its interpretation has evol ceive ceive the preservation of life the clinical restrictions usually adopted when lega when adopted usually the restrictions clinical The traditional conception of the obligation to pro and and responsibility and to protect the vulnerable ( nerable. Maybe it’s time to boldly acknowledge that the extremely dramatic situations they face, which those courts that have legalised it. The problem, h preserve preserve life is longer probably no compatible with

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded 300

Essays Arruego Gonzalo is much better situated to deal with such thorny is thorny such with deal to situated better much is Pa the that reasoningdeath assisted on ban blanket The Parliament. the with collaboration» stitutional Constitutional Court adjourned the case until a new a until case the adjourned Court Constitutional declaration of invalidity of the current legal fram legal current the of invalidity of declaration legitimately differ [...]. Ultimately, the question the Ultimately, [...]. differ legitimately up questions are These [...]. it about do to thing, t But law. this change could Parliament only ments, th asserted has Court the recently, More (2014). 38 (L.W. S (L.W. is strategy astute politically The groups. interest 67 66 Pu of Director The v. (Respondent) (AP) AM) of tion Dir The v. (Respondent) (AP) AM) of application the difficu increasingly seems situation normative this Co Supreme Canadian the of doctrines the As others. that sions this But death. assisted of prohibition blanket the risksinherent itsevaluating afterthat true is It freedom, responsibilityand protection the of the m to decision responsible and free the nullify longer prote to State the of duty positive the from arises I capacity. that of recognition a precludes life to shown,hasbeenconclusion it that not th does mean existen own one’s end to right a accommodate cannot th and nature the explored have pages preceding The andhypothetical life a capacity toend one’s ownl what question: following the with opened paper This Final remarks 4. avoid the problems deriving from a legal void, the the void, legal a from deriving problems the avoid t power legislative appropriate exercise to liament do this in regulationsappropriate enact and debate t is it that acknowledged have courts some fact, In creaselegislatorsif not do it, face thusleaving constitutional support, but not rejection, to a rig a to rejection, not but support, constitutional diffi increasingly is constitutionality whose death o the on between, land» man’s «no a entered we Have tion that the law was incompatible with the Convent the with incompatible was law the that tion ing in his claim before this court are sufficient t sufficient are court this before claim his in ing concluded that in this case those prospects are not are prospects those case this in that concluded way) v. Ministry of Justice of Ministry v. way) s 2 of the 1961 Act is held to be incompatible with incompatible be to held is Act 1961 the of 2 s UK Supreme Court Court Supreme UK u stir to reluctant normally are «[...G]overnments UMMER de facto de , , Assisted Death: A Study in Ethics and Law and Ethics in Study A Death: Assisted

allow individuals to choose death over life, even w even life, over death choose to individuals allow R (Nicklinson and other) v. Ministry of Justice of Ministry v. other) and (Nicklinson R (November 27th 2018) §§ 7 and 8). Lord Steyn had a had Steyn Lord 8). and 7 §§ 2018) 27th (November for the panel is whether the prospects of Mr Conwa Mr of prospects the whether is panel the for o justify our giving him permission to pursue it [. it pursue to permission him giving our justify o to avoid dealing with these issues unless compelle unless issues these with dealing avoid to on which the considered opinions of conscientious j conscientious of opinions considered the which on BioLaw Journal BioLaw blic Prosecutions (Appellant) (Appellant) Prosecutions blic decisions judges to the , most legal orders have translated that obligation thattranslatedhave legal orders most , he Supreme Court could, if it thought right, make a make right, thought it if could, Court Supreme he the convention [...] such a fundamental change can change fundamental a such [...] convention the ector of Public Prosecutions (Appellant); R (on the (on R (Appellant); Prosecutions Public of ector sufficient to justify giving permission to appeal» to permission giving justify to sufficient p opposition and risk a backlash on the part of inf of part the on backlash a risk and opposition p at «[u]nder the United Kingdom’s constitutional arr constitutional Kingdom’s United the «[u]nder at ion rights, leaving it to Parliament to decide what decide to Parliament to it leaving rights, ion ework on assisted death and, in and, death assisted on ework cult to uphold and, on the other, the lack of expre of lack the other, the on and, uphold to cult ndeed, the two are inevitably linked. A connection A linked. inevitably are two the ndeed, ht to assisted death? Such uncertainty will only in only will uncertainty Such death? assisted to ht ife, ife, especiallywith help the of others? ct human life imposed by the right to life: it can it life: to right the by imposed life human ct , Oxford, 2011, 210). 210). 2011, Oxford, , Canadian Supreme Court suspended in suspended Court Supreme Canadian UK Supreme Court expressly refused rule on the on rule refused expressly Court Supreme UK ost vulnerable.ost prohibition coexists with the legitimacy of deci- of legitimacy the with coexists prohibition main. For example, and in order to allow the Par- the allow to order in and example, For main. i, u olgs o dp sfgad t ensure to safeguards adopt to obliges but die, hearing one year later in the spirit of a «loyal i «loyal a of spirit the in later year one hearing rliament, as the democratic representative body,representativedemocratic the as rliament, t o xli. r w apocig an approaching we Are explain. to lt sues ( sues he responsibility of parliamentary lawmakers to lawmakers parliamentary of responsibility he ey are unrelated; are nor ey does that right mean the it etbih opeesv rgltos n to and regulations comprehensive establish o is the relationship, if any, between the right to right the between any, if relationship, the is e content of the right to life to conclude that it that conclude to life to right the of content e urt and the Italian Constitutional Court show, Court Constitutional Italian the and urt ce, with or without the help of others. But, as But, others. of help the without or with ce, ne hand, a blanket prohibition on assisted on prohibition blanket a hand, ne Nicklison – ;

Rivistadi BioDiritto,n. 3/2020 R (AM) v. General Prosecutor General v. (AM) R and 66 ith the necessary assistance of assistance necessary the ith . lready argued in in argued lready [2014] UKSC 38 (2014) § 229). §229). (2014) 38 UKSC [2014] Conway ) 67 Cappato . And the Irish Su- Irish the And . ..]. [I]t has been been has [I]t ..]. Pretty [2014] UKSC UKSC [2014] , the Italian the , y’s succeed- y’s d to do so» do to d Carter udges may udges

impasse that «[i]f that ( applica- declara- , if any- if , luential luential R (Con- R not be not ange- into the no n- ss ? -

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded

301

Essays

, to nd. nd. It g g and ound- tate for onstitu- e, e, in the ll placed end [...]. State to rights can , a matter disposal to [2013] IESC ratic debate ld be for the e e right to life, ective regulatory o life and assisted death assisted life and o still stands running out of Fleming v. Ireland and others

blanket blanket prohibition ibition on assisted death can no longer be justi- e of of the absolute ban on assisted death, hinted at d d happen if the ECtHR, in an «à la Carter» change al framework within the Constitution when extreme when extreme the Constitution within al framework res with appropriate safeguards could be introduced R R (Pretty) v. General Prosecutor and Secretary of S eachtas of any legitimate concerns was within the b rily implying that it would not be open to the Stat s uestion called for a careful assessment of competin of the appellant from bringing her own life to an Article Article 40.3.2 imposes a positive obligation on the generally and to adopt measures designed to that e some cases, require a careful balancing of other c e e has an obligation to use all of the means at its legislative branches of government are uniquely we ish Supreme Court ppellant. If such legislation was introduced it wou see how a process of interpretation of convention ’s obligation in any given circumstance is, however ore, that as part of its obligation to vindicate th ections. Essentially, it must be a matter for democ e e considered at all, it requires a detailed and eff . . 68 Rivista di BioDiritto, n. 3/2020 n. BioDiritto, di Rivista

– On the relationship between the fundamental right t right the fundamental between On the relationship [2001] [2001] UKHL 61 (2001) 57).§ BioLaw Journal BioLaw Journal

«The Court accepts [...] that the legislation in q to undertake [...]. There can be no doubt but that protect life [...]. The precise extent of the State which may require careful analysis and, at least in tional considerations [...]. It may well be, theref the State is required to seek to discourage suicide does not, however, necessarily follow that the Stat the Home Department time? Is the clock ticking? Just imagine: what woul of doctrine, were to conclude that the blanket proh ECHR? the fied under Are Are the Parliaments of those jurisdictions where th and decision-making by legislatures» (House of Lord 68 brought about by judicial creativity. If it is to b proposal. In these circumstances it is difficult to yield a result with all the necessary in-built prot the possibility of reconsidering the current crimin the current of reconsidering the possibility preme preme Court, after upholding the constitutionality and dramatic circumstances occur circumstances dramatic and complex social and moral considerations [...] which seek to prevent a person in a position such as that 19 19 (2013) §§ 106, 107 and 108). Nothing in this judgment should be taken as necessa event that the Oireachtas were satisfied that measu legislate to deal with a case such as that of the a courts to determine whether the balancing by the Oir aries of what was constitutionally permissible» (Ir

ISSN 2284-4503 2284-4503 ISSN Downloaded from www.biodiritto.org. www.biodiritto.org. from Downloaded