(LifeSiteNews) — On February 5, Ecuador’s Constitutional Court granted the request of Paola Roldán, 42, who suffers from amyotrophic lateral sclerosis, to be euthanized because of the intense pain she is experiencing. Seven out of nine judges caved under the pressure of an extreme situation, in a country where there is no legal provision for palliative care.
The patient and her legal team had made clear that they were fighting not only for an individual case and ruling, but hoped to obtain a decision that would “help” other people in similar situations. It is possible that they obtained more than they bargained for. Under the Court’s ruling, not only “voluntary” but also what it calls “avoluntary” euthanasia are to be legally excused from 10- to 13-year prison penalties associated with article 144 of the Ecuadorian Penal Code which defines various kinds of voluntary homicide (not first-degree murder).
“Avoluntary active euthanasia,” according to the ruling, is based on the patient’s will. However, it clarifies its meaning by saying that “in avoluntary active euthanasia, the patient’s will cannot be known because it is impossible for him or her to express it, for example, in cases where people are in a vegetative state [or] permanent coma and, [thus] instead, the conscious person is a representative of the patient.”
Defining euthanasia, the ruling adds: “Euthanasia has one main purpose: to end the life of a person who, by his own will or that of a third party, in case of [the person’s] incapacity to express his consent, decides to request an active or passive euthanasia procedure in order not to continue with unbearable suffering caused by a serious and irreversible bodily injury or a serious and incurable disease.”
This is perhaps the most extreme euthanasia provision to date. In the eight countries in which euthanasia has been made legal – in South America, only Cuba and Columbia have done so, the primary consideration is the will of the patient, which is presented as the only justification for a doctor to administer a lethal substance. In some cases, such as in the Netherlands, a patient’s declaration made prior to the loss of his or her capacity to express his or her will can be accepted as authorization of euthanasia under circumstances which he or she has previously outlined. Even so, such “living wills” are usually approached with caution, even in a context where euthanasia has become widely accepted and now accounts for 5 percent of all deaths.
Not so in Ecuador. Under the provisions of the Constitutional Court, there is no question of anything the patient might have said or not said before becoming incompetent, and it is therefore a “third party,” as the ruling clearly states, who is given the power to decide in the patient’s stead as his or her representative.
This provision, putting a person’s life into the hands of another, is an an innovation that has been created, not by a legislative body (although, of course, no Parliament has the right to disregard the fundamental principle “thou shalt not kill”) but by a group of judges. This is a horrible example of government by the judiciary (they voted 7 to 2), with complete disregard not only for human life but also for democratic debate. With this, Ecuador’s only hope of reversing the new jurisprudence is a change in the composition of the Constitutional Court, which at present is dramatically in favor of, not only “chosen death,” but also “unchosen death” because of the new third-party rights.
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It is through legal fiction that the third party’s decision on behalf of a patient not capable of expressing his or her will, is deemed to be a full expression of that will. This will be the case not only if the patient is in a vegetative state, but also if the patient is a child, heavily disabled, or suffering dementia. The ruling adds that, in this case, the criterion for access to decriminalized euthanasia is the patient’s lack of “vida decorosa” (dignified life), meaning that a third party and a doctor decide whether a life is “dignified” or not : in other words, whether a life is worth living. This is the stuff totalitarian systems are made of.
Under the terms of the 79-page ruling, doctors who euthanize their patient will not suffer the penalty for voluntary homicide laid down in the Ecuadorian penal code if the person concerned expresses “unequivocal, free and informed consent” to an active euthanasia procedure. Furthermore, it rules that active euthanasia is only authorized in cases of intense suffering linked to a serious and irreversible physical injury or a serious and incurable disease.
The Court’s ruling also makes the Ombudsman responsible for preparing, within 6 months, a law that will regulate euthanasia procedures in line with the provisions of its ruling, which is immediately applicable in the case of Paola Roldán. It also tasks the Ecuadorian Ministry of Health with issuing regulations within two months for the application of “voluntary and avoluntary active euthanasia in the light of technical criteria and in accordance with the ruling” which are to remain in force pending the new law and will be monitored by the Court.
The two judges who voted against the Court’s ruling were highly critical of its inconsistency. Judge Carmen Corral Ponce wrote an opinion in which she wrote:
I must point out how worrying it is that the majority vote has decriminalized active euthanasia, even ‘without the patient’s consent.’ In the criminal definition created in the majority judgment, without any explanation and ex officio (it is not asked for in the lawsuit); the possibility of consent being granted through the patient’s representative when the patient is unable to express it is added in parentheses. This addition, as has already been pointed out, is contrary to the whole line of the sentence, which devotes several paragraphs to arguing that the possibility of access to active euthanasia derives from the free development of the personality, from the life plan of each person and from his or her consent.
She added:
Therefore, the cloak of ‘free development of the personality’ ends up vanishing and reveals the real problem behind euthanasia; the judgment of value that must be made with respect to the living conditions of a person in order to justify that ‘euthanasia is not punishable.’ Thus, for the majority vote, the only thing that matters is that human beings comply with having ‘a decent life,’ in order for the conduct that attempts against their life to be penalized, whether or not there is consent on the part of the owner of the life. For if the person cannot consent and does not have a ‘dignified existence,’ he or she is a candidate to be deprived of his or her life. (…) What can assure us, then, that persons who are members of vulnerable groups under our Constitution are not treated as disposable objects?
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