With a historic bill from 18 March, Spain’s Parliament legalized euthanasia and assisted suicide. This made Spain the 4th European state to do so after the Netherlands, Belgium, and Luxembourg. But why have only a handful of states legalized it and is euthanasia compatible with the right to life?
Euthanasia is characterized by deliberately ending a person’s life to relieve their suffering. It could be either voluntary when the patient consents to the euthanasia, non-voluntary when consent cannot be given, for instance when the patient is in a state of coma, or involuntary when it is done against the will of the patient. Apart from the above-mentioned European states, voluntary euthanasia is also legal in Canada and Colombia, while assisted suicide is legal in Switzerland, Germany, Japan, and several US States.[1] However, non-voluntary and involuntary euthanasia remain illegal in all systems.
So how did Spanish lawmakers decide to join the handful of states that have legalized euthanasia? The whole public debate about its legality started in 1998 when Ramón Sampedro, aged 56, filmed himself while taking his own life. The reason was the paralysis with which he had to live for 30 years following a diving accident.[2]It took over 20 years for euthanasia and assisted suicide to become legal in the State but still, there are strict requirements put in place. Firstly, only Spanish nationals and residents are considered eligible to undergo euthanasia; secondly, when they request it they should be in a conscious state and fully aware of their decision; and thirdly, their request must be written and submitted twice – 15 days apart.[3] Despite this strictness, the legal change is considered a huge win for suffering people. However, can euthanasia be considered legal according to the right to life in the European Convention of Human Rights (ECHR)?
Article 2 of the ECHR states that “No one shall be deprived of his life intentionally”, while consent is not being mentioned as a ground for exclusion of liability. Therefore, euthanasia and assisted suicide ought to be considered illegal under the ECHR if it was not for the European Court of Human Rights (ECtHR). Its case law varies, with instances where the right to death was not considered a derivative from the right to life,[4] and cases where assisted suicide was found to be permissible.[5] In the second case, though, the ECtHR based its decision not on the right to life, but on the right to respect for private and family life (Article 8) instead, formulating it as the “right of an individual to decide how and when his life must end.”[6] The condition that this could only be done after the free expression of such a will was declared by the Court. As a result from this case, apart from the already established positive and negative obligations States have to protect their citizens’ lives, the ECtHR formulated a new obligation – the protection of the right to death, or as the Court referred to it – “a positive obligation to adopt measures to facilitate the act of suicide with dignity”.[7] However, the ability of the patient to consent remains crucial as was seen in the case of Lambert and Others v. France[8] where the ECtHR ruled against the euthanasia of a patient in an unconscious state.
Is the right to death exercisable, though? While the ECtHR case law is crucial for the legal developments in Europe, it does not constitute law for uninvolved States and they cannot be bound by a decision unless a similar case is brought against them. So, it will take changes in national law or the ECHR itself to create legal obligations for the protection of the right to death in Europe. However, based on the Court’s decisions, legalizing euthanasia and assisted suicide is perfectly in line with the States’ obligations under the Convention. So, it is only up to their national politics and agendas to decide whether to do so and Spain’s recent development is proof of that.
[1] In Which Countries is Euthanasia Legal?, World INFI, 2018.
[2] Gregory Jordan, Into the Life of a Man Fighting for the Right to Die, NY Times, 15 Dec, 2004.
[3] Emma Clarke, Spain Legalizes Euthanasia And Assisted Suicide, The HOOK, 18 Mar, 2021.
[4] Pretty v. United Kingdom [2002] ECHR 2346.
[5] Haas v. Switzerland [2011] ECHR 2422.
[6] Haas, para. 51.
[7] Haas, para. 61.
[8] Lambert and Others v. France [2015] ECHR 46043.
