In a landmark decision, the Constitutional Court legalized medically assisted suicide (SMA) as one of the procedures access to dignified death in Colombia. In this procedure, unlike euthanasia, it is the patient who performs the action of ending his life.
The decision endorses the SMA for the same requirements in which euthanasia is allowed today: when the patient is diagnosed with a bodily injury or a serious and incurable disease, when he suffers from intense physical or psychological pain on account of it that is incompatible with his idea of a dignified life, when he expressly states his intention and the assistance is provided by a doctor .
The decision was made with a presentation by Judge Antonio José Lizarazo, with a vote of 6-3. Lizarazo was accompanied by Alejandro Linares, Gloria Ortiz, Diana Fajardo and Natalia Ángel Cabo. Cristina Pardo, Paola Meneses and Jorge Enrique Ibáñez voted against.
The determination was made after studying a lawsuit filed by Lucas Correa Montoya and Camila Jaramillo Salazar, from the Laboratory of Economic, Social and Cultural Rights (DescLAB), against the second paragraph of article 107 of the Penal Code that penalizes induction to suicide, giving between 16 and 36 months in prison to whoever induces or supports a person to commit suicide with the intention of ending intense suffering resulting from serious or incurable bodily injury.
The high court conditioned the mentioned article to make it clear that it is not a crime and that, on the contrary, it is a constitutionally protected procedure medical assistance to the person who expresses his desire to end his own life in the aforementioned conditions.
The lawsuit claimed that penalizing the SMA violated the right to die with dignity, to a dignified life, to the free development of the personality by preventing access to medical help so that people who so wish can end their lives in a way accompanied and protected.
“Some people may prefer euthanasia, sometimes because they cannot cause their own death and sometimes because they do not want to. In other cases, people prefer to end their lives themselves (medically assisted suicide) and in doing so seek to have the necessary help to achieve it in a safe, accompanied and protected way, ”said the lawsuit, which indicates that legalizing the procedure is achieved. that this be “transparent, accompanied, protected and safe”.
With this decision, Colombia joins Switzerland, the Netherlands, Luxembourg, Canada, Australia, Spain, Germany and some states of the United States where the SMA is legal. Last year, when the lawsuit was filed, DescLAB had 125 investigative processes documented between 2010 and August 1, 2021 for the crime of inducing and/or aiding suicide.
Of those cases, 29% are active (37 cases) and the remaining 71% are inactive (88 cases). And only one was captured and convicted, while there are three more indictment and one indictment.
POSITION FROM THE GOVERNMENT
Before the Constitutional Court, The National Government opposed the claims of the lawsuit indicating that, in his opinion, it cannot be argued that assisting suicide protects a dignified life, “because the truth is that whoever concurs in this crime affects this legal right”.
“The right to die with dignity does not imply that people do not have the duty to avoid health risks to other people, since there is a fundamental duty to respect the life of others, at this point”, added the Ministry of Justice a few months ago to the high court.
For the portfolio, the Court should not make any pronouncement because, in its opinionthe lawsuit filed by DescLAB erroneously assimilated the crimes of induction to suicide and mercy killing and, therefore, did not meet the requirements to be studied in depth.
“The first (euthanasia) consists of providing effective help by a medical professional to end the life of the person, emphasizing that it is the same medical professional who performs such activity. A different situation occurs in assisted suicide, since it is the person himself who causes his death, helped by someone who provides him with the necessary means to do so; this may be providing advice on lethal doses of medication”, said the Government.
According to the Ministry, the crime of inducing suicide is justified “to the extent that the intervention of third parties in the suicidal act must be analyzed, bearing in mind that life is a right available to its holder and only he is the one who decides what pertains to its very existence.
“In this sense, when we place ourselves in the criminal type of induction or aid to suicide, what could be noticed is that there is a legitimate barrier, which prevents interference by the State in the decisions of citizens, as long as they are not affected. rights of others, and its typification would respond to the duty of every citizen not to affect the life of others”, pointed out the ministry, which assured that the crime of inducing suicide, as contemplated, does not violate the fundamental right to the free development of the personality.
The Ministry of Health, for its part, sent the Constitutional Court a technical concept, revealed by EL TIEMPO, and argued that legalizing the SMA in Colombia should be done through Congress, in attention to the “complexity that would entail the inclusion of the MAS as a care process in the General System of Social Security in Health”.
For the Ministry of Health, “lTaking the MAS to the provision of services requires a service provision structure, primarily access to medicines and a provision network for their dispensing, surveillance and control, different from that used in euthanasia”.
For the portfolio, the SMA would also need a “contextual definition” and of “differentiated operational reviews”, which, in his opinion, “leads to question whether another alternative is really required” when euthanasia is already possible for the same circumstances in which the lawsuit asks to legalize the SMA.
“The divergences between the options for the exercise of rights at the end of life in weight with individual freedoms and solidarity within the framework of the general system of social security in health of the country, must be reviewed in a contextual manner and on the reality of capacity installed in health technologies, which includes the knowledge available for care, since the guarantee of access to the minimum relief options depends on it”, the Ministry said.
“Including an additional option by way of decriminalization impacts the way in which it will be developed”, said the Ministry in reference to the 2021 euthanasia ruling that extended the procedure to non-terminal patients.
The Ministry assured that the right to die with dignity “does not contain infinite alternatives” And because of that, “To affirm that the MAS is an option equal to euthanasia is to ignore the conceptual, procedural and care differences”.
In this sense, the portfolio insisted that the issue should be the subject of debate in Congress and not the result of a court ruling.
“The absence of the SMA option does not limit the fundamental right to die with dignity early, nor does it prevent assistance from being provided when the conditions for accessing such option are met.”, concluded the Portfolio in the concept that reviews the legislation of the countries in which medically assisted suicide is allowed, to indicate that most of it is regulation by law.
TIME – JUSTICE