| Gian Luigi Gigli |
University of Udine: Department of Experimental and Clinical Medicine. Member of the Italian Chamber of Deputies (2013 - 18)
INTRODUCTION
The equivalent in sociology of the slow habituation process to poison, known in medicine as mitridatization, is called "Overton window". This is the term used by the American sociologist Joseph P. Overton (1960-2003) to describe the way in which, with the passage of time and under the push of appropriate actions, even very controversial issues can end up being accepted by the social body: It is a question of setting in motion a process that what was first inconceivable, gradually turns only into something extreme, to then become acceptable, therefore reasonable, coming to have the force of law, when it is sufficiently popular and shared.
Italian Radicals were masters in proposing paths of this type, leading the Italian society to add up to the most foreign ideas. In some ways this is part of the physiological dynamic of a democratic society. However, it is a dynamic that, if it does not want to contradict the same foundations of democracy, should stop on the threshold of fundamental rights, which cannot be questioned by the parliamentary majorities of the moment.
Thanks to the action of Radicals and Associations that refer to the radical ideology (primarily the “Luca Coscioni” association and its mentor Marco Cappato), the Overton window has been wide open on euthanasia and the ground has now become fertile for introducing the sweet death in the Italian legal system. If this change has been able to produce itself in a few years, it is "merit" of those who have carried out the long march for the introduction of euthanasia in Italy, a consistent project to demolish the moral resistance and legal obstacles together, using pitiful cases to introduce general principles in the system. At any legal success, the moral (and political) resistance came out weakened, in a vicious circle.
In the impossibility of reconstructing the whole story, it is necessary to analyze at least some fundamental joints.
THE NODAL POINTS OF A LONG MARCH
1. The judicial controversy and the death of Eluana Englaro.
The first can be identified in the judicial controversy that concerned Eluana Englaro. Despite the Supreme Court of Cassation, in the 2007 ruling on the case, had claimed that “the right to die” or the faculty "to choose death rather than life” do not derive from the Constitution, at the end of a very long battle, it was impunely ruled by a court the principle that also in Italy, like in other Countries, a human being could be left to die by subtracting her hydration and nutrition. And this on the basis of an alleged manifestation of will, reported by third parties and with discordant testimonies that could not enter into a discussion expertly brought to the civil and non-criminal justice, although it was a matter that questioned a human life.
2. Law n. 219 of 2017 on Informed Consent and Advance Directives on Treatment (Living will)
The second joint is constituted by the law on advance directives on treatment (ADT). In the name of an alleged absolute right to self-determination, with law 219/2017, each person was allowed to refuse not only cure, but also nutrition and hydration, and to do so not only when they are actually too burdensome for the patient or when they really represent therapies of the specific clinical case, but also when they simply constitute the indispensable supports to every human being, healthy or sick who is, to be able to stay alive.
In 2017, some of the topics considered by 219 (informed consent, shared care planning, refusal of diagnostic and therapeutic obstinacy, attention at the time of therapeutic desistance, palliative medicine) had already become cultural heritage of any good doctor even before the approval of the law, although it was still necessary to work so that they could become increasingly embodied values in professional practice, in the awareness that is within the medical-patient relationship that the solution of difficult cases can be found.
The true and ethically more controversial innovations introduced by 219/2017 are instead: a) in the definition ex lege of hydration and nutrition no longer as elementary needs of the person (it does not matter if healthy or sick), but as medical therapies and as such refusable in any case by the patient, based on the absolutization of the principle of self-determination; b) in the possibility that the refusal can also be requested by those who legally represent the patient or the minor (parent, guardian, support administrator); c) in the provision of continuous deep (terminal) sedation to mask the suffering that dehydration and starvation inevitably produce; d) finally, in the legal approval of advance directives on treatment (ADT).
Already in the course of the parliamentary debate, which saw us strongly engaged, we warned that with L. 219 it would surreptitiously enter our legal system a sort of "right to suicide", albeit limited to death by dehydration and starvation, a right that by analogy could be dangerously extended with jurisprudential interpretations, if only to allow a faster and more "human" death, compared to that consequent to the suspension of vital supports.
The risks of an euthanasic drift due to the law approval on December 22, 2017 had also been announced with reference to what was appearing as a likely conclusion for the trial that met Marco Cappato (investigated after self-denounce since 1 March 2017) for having organized the journey of death of the disk jockey Fabiano Antoniani (known as Fabo), died in Switzerland on February 27, 2017.
Political forces and civil society did not want to realize the consequences of the new law. Also part of the Catholic world actively worked for its approval, among them Mario Marazziti, the President of the Health Commission of the Parliament and a prominent member of the Sant’Egidio Community. Others lived in the illusion that limitations in the application of 219/2017 would have come by its jurisprudential application. Punctually, however, the jurisprudence has proceeded to interpret the law in an extensive sense.
3. The (fake) trial for the death of DJ Fabo
This subtitle refers to what happened with the trial involving Marco Cappato, who reported himself for having helped the assisted suicide in Switzerland of Fabiano Antoniani (known as DJ Fabo). It is the third nodal point of this long march.
Despite the orientation against assisted suicide had been reiterated again in 2013, when the Supreme Court did not hesitate to rule that the choice of suicide is: "a denial of the fundamental principle on which every organized community is based, represented by the respect and promotion of life in all its manifestations," a few months after the approval of 219, promptly, the High Court in Milano who had the task of judging Cappato did not hesitate to complain that article 580 of the Criminal Code (which punishes instigation and aiding suicide) "is contrary to the principles of freedom and self-determination of the individual, enshrined in the Constitution and the European Convention on Human Rights, which were recalled and declined in law on the end-of-life no. 219/2017". The Milanese judges relied on law 219/2017 to affirm that with the ATDs the right to suicide by renouncing treatment or life support has been introduced in Italy, legalizing in fact “indirect omission euthanasia”, even without recognizing the right to choose the methods of suicide. The fact that a patient cannot choose the methods of suicide, demanding that doctors administer a drug that causes death, “cannot lead to denying the … freedom of the person to choose when and how to end his or her existence”, based on articles 2 and 13 of the Constitution. In the opinion of the Milanese Court, therefore, the same “constitutional principles that inspired, only a few months ago, the formulation and approval of law no. 219/17 must also preside over the exegesis of the rule” under examination for the Cappato trial, i.e. article 580 of the Criminal Code, in the part that sanctions assisted suicide.
Contradicting the many Catholics who, out of naivety or personal interest, had preferred to vote in favor of the DAT, the Court sent the documents of the Cappato trial to the Constitutional Court, so that it could evaluate whether to declare the unconstitutionality of the part of art. 580 of the Criminal Code that concerns assisted suicide.
In the order with which the Court of Assizes of Milan brought the case to the attention of the Constitutional Court, the Milanese judges referred precisely to law 219/17 to argue that what differentiates Swiss assisted suicide from what the law had already permitted in Italy would be only the way in which the aspiring suicide decides to anticipate his end.
4. The interventions of the Constitutional Court
The fourth nodal point is the two-step response of the Constitutional Court to the order of the Milanese High Court.
First, with order no. 207 of 24 October 2018, the Court noted that:
"The criminal legislator cannot be considered inhibited, therefore, from prohibiting conduct that paves the way for suicidal choices, in the name of an abstract conception of individual autonomy that ignores the concrete conditions of hardship or abandonment in which, often, such decisions are conceived. Indeed, it is the duty of the Republic to implement public policies aimed at supporting those who find themselves in similar situations of fragility, thereby removing the obstacles that prevent the full development of the human person".At the same time, however, it invited to consider "situations that were unimaginable at the time the incriminating rule was introduced, but brought under its sphere of application by developments in medical science and technology, often capable of snatching patients in extremely compromised conditions from death, but not of restoring their vital functions". In cases, such as that of Fabiano Antoniani, in which the person is "(a) affected by an irreversible pathology and (b) a source of physical or psychological suffering, which he finds absolutely intolerable, who is (c) kept alive by means of life-sustaining treatments, but remains (d) capable of making free and conscious decisions", assisted suicide "may present itself to the patient as the only way out to avoid, in compliance with his own concept of the dignity of the person, an artificial maintenance of life that is no longer wanted and that he has the right to refuse".
The constitutional judges therefore adopted the similarity with what was provided for by law no. 219 of 2017, proposed by the Milanese magistrates (and inspired by the radicals), according to which the sick person has the right to refuse any treatment and the doctor is required to respect his will, noting that, despite this new legislation, the regulatory framework does not allow the doctor to offer the patient treatments capable of hastening his death. "In this way, the patient is forced to undergo a slower process, hypothetically less corresponding to his vision of the dignity of dying and more burdened with suffering for the people who are dear to him".
According to the Court, "the absolute prohibition of assisted suicide ends up limiting the patient's freedom of self-determination in choosing therapies, including those aimed at freeing him from suffering". For the constitutional judges, "the assistance of third parties in ending his life can present itself to the patient as the only way out to avoid, in compliance with his own concept of the dignity of the person, an artificial maintenance of life that is no longer wanted and that he has the right to refuse". After these considerations, the Constitutional Court chose to postpone the decision to the public hearing of 24 September 2019, to allow Parliament "any appropriate reflection and initiative". With a heavy and unusual intervention, it invited Parliament to address the end-of-life regulation within a year, threatening its own interpretative intervention otherwise.
One year after its own ordinance 207/2018, the Constitutional Court finally ruled on the Cappato case and in particular on the question of the constitutional illegitimacy of art. 580 of the Criminal Code in the part in which it criminalizes the conduct of assisted suicide, regardless of their contribution to the determination and strengthening of the suicidal intent.
Resuming the content of order no. 207, the Court reiterates that the criminalization of assisted suicide cannot be considered in itself in conflict with the Constitution and that the purpose of art. 580 of the Criminal Code is to protect people, especially the weakest and most vulnerable, who are going through moments of serious difficulty and suffering, avoiding that the decision to take one's life may be subject to interference by others interested in such an outcome.
However, according to the Court, it is possible to identify an area of constitutional non-compliance, limited to cases in which the aspiring suicide is a person "(a) suffering from an irreversible pathology and (b) a source of physical or psychological suffering, which he finds absolutely intolerable, who is (c) kept alive by means of life-sustaining treatments, but remains (d) capable of making free and informed decisions". The Court reaffirms that, although Law 219/2017 recognizes the patient's right to refuse or interrupt any health treatment, even if necessary for survival, and the right to access palliative care and pain therapy, the legislation in force does not allow the doctor to make available to the patient, who falls within the conditions indicated, treatments aimed at determining his death, forcing the subject to slower solutions, unacceptable for him and a source of psychological suffering for the people dear to him.
On the basis of these considerations, the Court concludes that "if the fundamental importance of the value of life does not exclude the obligation to respect the patient's decision to end his or her existence by interrupting health treatments - even when this requires active conduct, at least on a naturalistic level, by third parties - there is no reason why the same value should translate into an absolute obstacle, protected by criminal law, to the acceptance of the patient's request for assistance that can save him or her from the slower progression resulting from the aforementioned interruption of life-support devices". As regards the risk of pressure or abuse on the most vulnerable persons, the Court notes that it sees no reason why those who are already authorised to forgo life-sustaining treatments cannot decide to end their own existence with the help of third parties, provided that the conditions identified by the Court itself are met.
According to the Court, in the limits of this context, the absolute prohibition of assisted suicide would constrain the patient's freedom of self-determination, deriving from Articles 2, 13 and 32, second paragraph, of the Constitution, imposing a single method for renouncing life.
Article 580 of the Criminal Code is therefore declared unconstitutional insofar as it does not exclude the punishability of those who, with the methods provided for by Articles 1 and 2 of Law No. 219/2017, facilitate the execution of the intention of suicide, autonomously and freely formed, of a person who presents the requirements described above, provided that such conditions and the methods of execution have been verified by a public structure of the health service, following the opinion of the territorially competent ethics committee.
However, the Constitutional Court's ruling 242/2019 does not represent the final conclusion. In the ruling, in fact, the Court did not establish any right to suicide, stating instead that "From art. 2 Cost. - no differently than from art. 2 ECHR - derives the State's duty to protect the life of every individual: not that - diametrically opposed - of recognizing the individual the possibility of obtaining from the State or from third parties assistance in dying". The Constitutional Court did not even cancel the crime of assisted suicide, limiting itself to providing for its non-punishability if certain conditions are met, including, not least, the patient's dependence on technological life support.
Furthermore, the Constitutional Court, in declaring assisted suicide not punishable, limited to the circumstances indicated by it, clarified in the same ruling that there is no right to be helped to die by the NHS, but rather a right to kill oneself, with the NHS remaining only responsible for ascertaining the conditions for non-punishability, the suitability of the drug and more generally the ascertainment of the methods of execution, which must be "such as to avoid abuse to the detriment of vulnerable people, to guarantee the dignity of the patient and to avoid suffering for the same" (Constitutional Court no. 242/2019, point 5 Cons. dir.). This is even more true if one considers that, precisely due to the lack of any obligation on the part of the NHS, the Constitutional Court does not provide for any conscientious objection for medical and nursing staff.
In addition, for the Court, the necessary effective offer of palliative care and pain therapy should instead represent "an absolute priority for health policies". "Otherwise, we would fall into the paradox of not punishing assisted suicide without first ensuring the effectiveness of the right to palliative care".
Even with these limitations, the intervention of the Constitutional Court undoubtedly represents an important step forward in the long march towards the recognition of the lawfulness of medically assisted death in the Italian legal system. In fact, sentence 242/2019 unspokenly conveys the idea that there are living conditions that are unworthy of being lived and which are better put an end to (for the moment as a personal choice); it spreads the idea that it is possible to solve the problem of suffering by eliminating the person who suffers; it confuses cure and care, forgetting that life itself is an “irreversible” disease and that “care” is always possible and necessary; it contributes to perverting the nature of the medical and nursing profession and the vocation to care of healthcare institutions; it aggravates the current tendency of healthcare institutions to intervene according to criteria of economy and efficiency and not according to criteria of humanity; it encourages those who are in difficulty and feel like a burden to ask to leave the scene; shifts even more towards the individual a society already weakened in its bonds of solidarity; subverts the foundations of the legal system, based on natural rights and favor vitae; destabilizes the balance of powers of the state with a very serious invasion of the judicial power in the field of legislative power.
Moreover, other disturbing questions inevitably arise. In fact, as happened with law 219/2017, which through the trial of Marco Cappato led to the ruling of the Constitutional Court, the ruling itself constitutes the starting point for new and more serious developments, inevitable for mere reasons of logic.
It is legitimate to ask, for example, what will happen to those who, in anticipation of not being able to decide, have entrusted the request for assisted suicide to the ATDs? In its ruling, the Court does not contemplate this possibility, referring only to articles 1 and 2 of the 2019, which do not speak of advance directives, but only of informed consent. However, how can the request for assisted suicide, advanced "now for then" using the ATDs, be rejected if the law on ATDs allows one to end life with dehydration and malnutrition?
Furthermore, what will happen to those who are not "aware and autonomous in their choices"? As with the suspension of hydration and nutrition, will the legal representative decide on the death of severely disabled and demented people (in their "best interest", obviously)?
Finally, how will we deal with those who, due to their motor limitations, are not even able to action the pump for intravenous injection or to crush between their teeth or swallow the legal cocktail? Will we be able to discriminate against them by denying them that it is someone else who performs the last gesture for them?
Logic is inescapable and leads to active euthanasia, beyond someone's "merciful" intentions.
5. The attempt of the abrogative referendum
With the wind in the stern for the climate changed by the unappealable judgments of the Constitutional Court, a further approach to the Euthanasic goal was attempted by its proponents, following two roads: that of the path in Parliament and that of the use of the urns of the referendum. Different roads, but complementary to each other.
The ambitious and unrealistic referendum project, served in fact only to create pressure on the Parliament for adopting a law to avoid the Far West that would be determined by the regulatory vacuum, produced in case of referendum repeal of the article of the Criminal Code sanctioning the homicide of a consenting person.
The referendum question, in fact, asked to repeal 18 words in the text of article 579 of the penal code, which punishes the murder of the consenting person. "Only" 18 words less, however, from the effect devastating: the murder of the consenting would not have been more prosecuted, unless the killing took place to the detriment of a minor, a person infirm of mind or affected by intellectual disability, or in the event of consent extorted with violence, threat, suggestion or deception.
In the event of a referendum victory of the radicals, the murder of the consenting would not have been more prosecuted, regardless of the patient's clinical conditions (suffering or not, irreversible or not), by the profession of the killing (doctor or not) and by the tool chosen to kill (drug, cushion, bullet or other).
The referendum chisel of the radicals, left to the work, would also have inserted in the law an unacceptable inequality between the crime of murder of the consenting (which would have been liberalized by the referendum) and that, less serious, of help to suicide (made not punishable only at certain conditions by the Constitutional Court).
6. The Unified (consolidated) Text approved by the Chamber of Deputies
From its side, only a year and a half from the approval of Law 219/2017 and in parallel to the referendum process, the Chamber of Deputies found itself to examine seven proposals of bills who aimed all, except one, to introduce medically assisted death in the Italian legal system, providing for "the non-applicability of articles 575, 579, 580 and 593 of the penal code to the doctors and the other health personnel" who caused the patient's death, as long as they exist the major age and full awareness of the patient, and if he manifests his will with a written act.
During their discussion, the bills were combined in a single text. The unified text leads the theme to the assisted suicide only, making the reference to the non -applicability of articles 575 and 579 fall (murder of the consenting).
On 14 January 2021, the unified text of the law project on "medically assisted voluntary death", speakers the Alfredo Bazoli and Nicola Provence, received an explicit endorsement from Carlo Casalone, Jesuit father, corresponding member of the Pontifical Academy for Life, in an article published in Civiltà Cattolica, the Jesuit magazine directed by Father Antonio Spadaro: "in the current cultural and social situation, it appears to me not to be excluded that the support to this proposal of law is not incontrast with a responsible pursuit for the possible common good".
On February 15, 2022, fortunately the Constitutional Court declared the radical referendum inadmissible, with an inevitable and legally flawless judgment. In fact, if the referendum had been declared admissible and if the radicals had won it, the foundations of the law and of social coexistence itself would have suffered the effects of an earthquake, coming out devastated.
Even when the ability of judgment is undermined by ideology, it is difficult to deny that the referendum question posed by radicals did not concern euthanasia, but the murder of the consenting.
In fact, it came out of the field of disease and medicine, erasing a fundamental concept with a stretch of pen: life, like freedom, is an inalienable good, even for those who want to get rid of it. As it is not legitimate to decide to become a slave to another, so you cannot deliver to others their right to life, however much these choices may be the result of a voluntary decision.
In fact, a written consent would not be enough to exclude that the request to die may have been produced following blackmail, pressure, economic difficulties, psychological subjection, momentary disheartening, depression. All things, these, who have nothing to do with suffering for a disease. Homicides, these, for whose execution a payed killed could have been hired.
But the decriminalization of the murder of the consenting would also have had other consequences. If, in fact, one can dispose of the supreme good of life, what sense would it make the ban on selling one's own organ for transplant purposes, or blood to pay for a debt? How to prevent a life sentenced from asking a cellmate to put an end to his suffering for the deprivation of freedom? If life is no longer sacred, why death penalty should not be admitted, at least for the most heinous crimes?
The above presented are considerations that do not require a particular legal culture. So what was a clearly improper referendum for? It is likely that the objective of the radicals was actually only to exert pressure on the Parliament, so that, to avoid the disruptive effects of the referendum, it approved euthanasic legislation.
Still only a week before the judgment of the Constitutional Court, the Hon. Alfredo Bazoli, speaker of the unified text under discussion in the Chamber of Deputies, did not hesitate to assert verbatim: "This law is the only alternative to the drift proposed by the radical referendum, which would like to legalize the murder of the consenting without restrictions" (Avvenire, 8 February 2022).
A week later, the gun of political blackmail was proved to be a toy gun and the inadmissibility of the referendum made the moral alibi fall, for those Catholic politicians and church men, who had argued that the rapid approval of the law on medically assisted voluntary death should be favored as a minor evil.
Despite the inadmissibility of the referendum, the large majority present in the Chamber of Deputies in favor of medically assisted death managed to approve the unified text on 10 March 2022 and to transmit it to the Senate for its approval.
The text does not even speak of assisted suicide, but of "medically assisted voluntary death". Ambiguity is most likely intentional, so that medical assistance does not turn "only" to the suicide, but can also practice actively. In the unified text, the death following medically assisted death is equated to that for natural death, in all respects of the law. It provides for the possibility of resorting to “medical assistance” even if the person is affected by "suffering" only of a psychological type, provided that they are considered intolerable.
Mora important, the requirement of an irreversible pathology is enlarged to includes the clinical "conditions" of irreversibility, that is, also the chronic situations of infirmity or those of irreversible disabilities (in the sense of permanent), but with which it is possible to coexist for a long time.
If this is added the failure to define what is to be understood for vital supports, it is inevitable to conclude that the approval of this text in the formulation with which it has gone to the Chamber of Deputies would not allow to deny medically assisted death also to the depressed or anorexic that refuse feeding, or to the demented no longer able to feed.
It is also significant the fact that a psychiatric evaluation is not considered mandatory, but it only said that the physician can make use of it while writing the certification ("report").
Finally, the bill that has now become known as "Bazoli", from the name of the speaker deputy, presents another fundamental flaw. The Constitutional Court, in fact, asked that the clinical conditions of the applicant and the suicide methods were verified by a public structure of the National Health Service, however providing that for the structures of the NHS there was no obligation to collaborate in suicide. At this stage, the legislator has exactly reversed things. In fact, according to the text, a verification of the NHS structure would not be required, being sufficient the declaration of the general practitioner or a specialist. Conversely, there is in the bill the possibility for the patient to request that the "suicide" occur in the structures of the National Health Service and that these are in any case obliged to ensure the performance of the procedures provided for by the law, thus including medically assisted death among the essential levels of assistance (LEA) that the NHS has to make accessible all over the country. Hence the need for the bill to recognize the right to conscientious objection. It is evident that in addition to the perversion of the medical profession, the finalities of the health care institutions are in the way subverted.
The approval of the "Bazoli" text would in fact transform the of solidaristic perspective of public health into a bureaucratic approach, making the medical intervention aimed at procuring the patient's death an ordinary protocol, elevated to the rank of the most noble interventions in medicine.
To temporarily hinder the path of the euthanasic project, the dissolution of the Chambers intervened on 21 July 2022, following the resignation of the Draghi government, which caused the early end of the XVIII legislature, causing consequently the forfeiture of all the legal proposals to the examination of the Parliament, not yet approved.
On the same day of the resumption of parliamentary works with the XIX Legislature (13 October 2022), the Bazoli bill was reappeared (Senate Act n. 104), this time with the name Alfredo Bazoli, become Senator, as the first signature among proponents.
However, the parliamentary majority change, followed in the elections, made much more difficult the coagulation in Parliament of a transversal bipartisan majority in favor of medically assisted death and this bill ended up on a dead track.
7. The introduction of assisted suicide through regional laws
Aware of this political difficulty, the “Luca Coscioni” Association has attempted to promote regional laws aimed at ensuring certainty of exam and execution times of assisted suicide procedures for the cases allowed by the ruling of the Constitutional Court n. 242 of 2019.
In various regions (including Veneto, Friuli Venezia Giulia, Emilia Romagna, Lombardy, Tuscany) proposals of popular initiative have been filed, almost identical among themselves and corresponding to the type model prepared by Marco Cappato for the same Coscioni Association,. All the proposals also provided a widening of the tasks of the health service, that the Constitutional Court had limited to the verification of the existence of the required requirements and to the surveillance of compliance with the patient's dignity.
It is the attempt to bring suicide back into the organization of health services, which in Italy is competence of the regions. Operating a distortion of perspective of health protection, the Coscioni Association is trying to pass in many regions of Italy the equation of support for suicide to health care, charging the health service of the task of providing spaces, instruments, poison to be injected and medical and nursing staff for assistance, at the expense of the taxpayer, as if suicide would be included among essential levels of assistance (LEA).
Continuing in its aberrant logic, the Cappato bill claims that the expenses are not covered through the identification of specific resources, but by drawing on the same funds used for health in the terminal phase of life, not even it was a palliative care.
The severity of the Cappato bill lies in wanting to transform suicide from a tragic failure, with a limited area of non-punishment for those who help the suicidal person, into a health practice, to be accepted on request, if the patient prefers it to care.
Fortunately, this project was rejected by the same regional councils and censored by the State Attorney because it uses the boundaries of regional healthcare competences, going to invade the exclusive competences of the State in the field of fundamental rights of the person. In fact, it is clear the unconstitutionality of a regional law in subjects, such as the civil and criminal code, which our system rightly reserves for State competences. In fact, a variety of legislation in the different regions would not be admissible on these issues.
8. What should be legally intended as life sustaining treatments
In the meantime, the Constitutional Court has produced a weakening of the conditions that the Court itself had defined in sentence 242/2019 for the decriminalization of medically assisted suicide.
On January 17, 2024, the Court of Florence submitted to the Constitutional Court the case of a patient suffering from multiple sclerosis in conditions of immobility except for a residual ability to use the right arm. The patient did not depend on mechanical supports, he was not subjected to life saving pharmacological therapies, nor did he require particular care interventions. The Florentine judge himself highlighted in the case in question the lack of the requirement of "dependence on life-sustaining treatments" provided for by the Constitutional Court. Nonetheless, the judge raised doubts of constitutional legitimacy with reference to art. 3 of the Constitution (for an unreasonable disparity of treatment between substantially identical situations), to articles 2, 13 and 32 co. 2 (for the compression of the freedom of self-determination of the patient in the choice of therapies), and to art. 117 of the Constitution in relation to articles 8 and 14 ECHR (implying an interference in the right to respect for private and family life that is not functional to the protection of the right to life)
On July 1, 2024, the Constitutional Court, rejected the question of legitimacy raised by the judge of Florence on art. 580 of the Italian Criminal Code, as amended by sentence no. 242/2019 of the same Court. Nevertheless, With sentence no. 135/2024, the Constitutional judges gave a new and wider version of what should be understood for life sustaining treatments, saying that: "The patient has the fundamental right of refusing any health treatment practiced on his body, regardless of his degree of technical complexity and invasiveness. Therefore, including those procedures that are normally carried out by healthcare personnel, and whose execution certainly requires particular skills subject to specific professional training, but which could be learned from family members or "caregivers" that take charge of the patient's assistance".
In addition: "To the extent that these procedures - such as, to resume some of the examples of which it was discussed during the public hearing, the manual evacuation of the patient's intestine, the insertion of urinary catheters or the aspiration of the mucus from the bronchial ways - they prove to be concretely necessary to ensure the performance of vital functions of the patient, to the point that their omission or interruption would predictably determine the patient's death in a short interval of time, they will certainly have to be considered as vital support treatments, for the purposes of applying the principles stated by sentence no. 242 of 2019”.
The extension of the potential suicidal audience is evident. It is no longer, as the Court itself has justified in its order 207/2018, a question to respond to "situations unimaginable at the time when the incriminating rule was introduced, but brought under its application sphere by the developments of medical science and technology, often capable of tearing patients in extremely compromised conditions to death, but not to return them a sufficiency of vital functions".
With another slip along the slippery slope that leads to euthanasia, from now on, to request medically assisted suicide, it will no longer be necessary to be connected to any machine, nor subject to invasive practices, becoming sufficient to motivate the request also the need for nursing practices as ancient as the world, such as "the manual evacuation of the patient's intestine".
9. The Tuscany Region approves the "Cappato” Law
The last (for now) stage of the long march of euthanasia in Italy was the approval, on February 11, 2025, by the Tuscany Region (as the first and - for the moment - the only Italian Region) of proposal of popular initiative known as "Cappato Law" which, however, will be challenged by the Government.
This law also passed with the indispensable vote of the Catholic regional councilors elected in the Democratic Party. Upon them the icy comment of the bishop of Pistoia, Mons. Fausto Tardelli, who did not hesitate to call things with their name: "As for Catholics engaged in politics, assuming that they still exist, at least sometimes they should not be afraid to go against current and pay attention not to lend themselves to games, mostly made to maintain power".
If unfortunately, the unconstitutionality of the Tuscan law were excluded, it is clear that with it, giving death would enter the DNA of medicine, while the healthy institutions would be transformed, according to the options, from places of care into places of intentional death.
Recently it has also been learned that in Lombardy, a Region ruled from the center-right coalition, a case of assisted suicide has been realized with the help of the health services, despite the fact that, unlike Tuscany, the attempt to approve a law on the Cappato model had previously failed in Lombardy.
PROSPECTS FOR POLITITIANS
When writing this article, it would seem that in the context of the majority of government that holds Italy, they are maturing reflections in favor of a national law, to prevent the regions from proceeding in a scattered order and that it can even start an internal suicidal tourism, on the type of that existing towards Switzerland.
Unfortunately, it is now late to circumscribe the phenomenon, which could still have been limited to exceptional cases before sentence 135 of 2024 of the Constitutional Court, which widened the concept of vital supports required for the decriminalization of the help to suicide.
However, it might not be late to exclude with a national law the assistance of the health services to suicidal procedures.
The political hesitancy with respect to a legislative intervention is due to the fear that despite its approval, the new law could be dismantled to pieces by the Constitutional Court, in response to requests from courts for specific cases, similarly to what happened for law 40/2004, regulating artificial procreation.
In his speech of September 11, 2019, the then president of the CEI, card. Gualtiero Bassetti expressed an extremely critical, albeit late, evaluation of the law on living will, coming to affirm that "well before the crime of suicide, parliamentary works should be dedicated to a revision of the advance treatment directives, approved with law 219, of December 2017. The provisions contained in that text, in fact, represent the starting point of a law favorable to assisted suicide and euthanasia". According to Cardinal Bassetti "Law 219 should, in fact, be revised where it includes assisted nutrition and hydration in the list of health treatments, which as such can be withdrawn; in the same line, the circumstances that the law establishes for deep sedation should be clarified and the possibility of exercising the conscientious objection to the norm should be introduced".
Unfortunately, such clear words were not pronounced in 2017, before the approval of Law no. 219, which was made possible only thanks to support of many Catholic politicians, inspired and blessed by important clergy members.
The truth operation, therefore, cannot ignore a sincere self-criticism of the harmful role played by prominent Catholics or, in the absence of self-criticism, by an indispensable change of the roles of responsibility that they continue to exert.
The battles, in fact, can also be lost, but those concerning crucial themes should at least be fought, if only to avoid that, together with the deep sedation of the patient, the consciousness of the people of God be anesthetized.
When Parliament will have to transform the contents of the Constitutional Court sentence into law, it is likely that it will only be possible to obtain the possibility for doctors to exercise conscientious objection. However, this does not exonerate us from taking a great educational effort, in order to develop a critical thinking in the clergy and among the faithfuls, of which there is an extreme need.
Together with it, as asked by the President of the Italian Bishops, "there is the need to strengthen the use of palliative care, whose importance is crucial in offering the necessary relief to the suffering of the patient". Palliative medicine, accompaniment and solidarity, in fact, are the most effective prevention of therapeutic abandonment, assisted suicide and euthanasia, even if they cannot be separated by correct anthropology. Without this anthropology, there is the risk that palliative medicine includes euthanasic intervention, as already happens in Holland and Belgium.
To facilitate the acceptance of the indispensable changes to the text of the law, it is now necessary that the Catholic world exerts pressure on the many parliamentarians declaring themselves as Catholics, to go beyond party obedience, operating choices not based on the emotion for a difficult and distressing case, but capable of looking at the long-term consequences of legislative acts, especially to the detriment of the most fragile persons.
Unfortunately, it is no longer even a matter of obedience to the party, but of values confusion, if a bill such as n. 104 (under evaluation at the Senate bears the name of a Catholic parliamentarian (Sen. Alfredo Bazoli) and if numerous others, among those who have co-founded it, also declare themselves Catholic.
Their consciences deserve to be re-proposed the careful reading of a recent, fundamental document of the Magisterium. This is the letter "Samaritanus bonus on the care of people in the critical and terminal phases of life" (published by the Congregation for the Doctrine of Faith on 14 July 2020, after approval of Pope Francis) (Link to Samaritanus bonus)
In this fundamental, even if unfortunately neglected document it is verbatim stated:
Euthanasia, therefore, is an intrinsically evil act, in every situation or circumstance. In the past the Church has already affirmed in a definitive way “that euthanasia is a grave violation of the Law of God, since it is the deliberate and morally unacceptable killing of a human person. This doctrine is based upon the natural law and upon the written Word of God, is transmitted by the Church’s Tradition and taught by the ordinary and universal Magisterium. Depending on the circumstances, this practice involves the malice proper to suicide or murder”.[38]Any formal or immediate material cooperation in such an act is a grave sin against human life: “No authority can legitimately recommend or permit such an action. For it is a question of the violation of the divine law, an offense against the dignity of the human person, a crime against life, and an attack on humanity”. Therefore, euthanasia is an act of homicide that no end can justify and that does not tolerate any form of complicity or active or passive collaboration. Those who approve laws of euthanasia and assisted suicide, therefore, become accomplices of a grave sin that others will execute. They are also guilty of scandal because by such laws they contribute to the distortion of conscience, even among the faithful. (Samaritanus Bonus V,1)
In the face of the legalization of euthanasia or assisted suicide – even when viewed simply as another form of medical assistance – formal or immediate material cooperation must be excluded. Such situations offer specific occasions for Christian witness where “we must obey God rather than men” (Acts 5:29). There is no right to suicide nor to euthanasia: laws exist, not to cause death, but to protect life and to facilitate co-existence among human beings. It is therefore never morally lawful to collaborate with such immoral actions or to imply collusion in word, action or omission. The one authentic right is that the sick person be accompanied and cared for with genuine humanity. (Samaritanus Bonus V,9)Those who feel impotent in the face of the tide that advances, it is necessary to provide support in order to resist to the equation of those who would like to reduce us to people incapable of compassion towards those who suffer, urging everyone to work to reduce suffering and not to eliminate the suffering.
The right to conscientious objection does not mean that Christians reject these laws in virtue of private religious conviction, but by reason of an inalienable right essential to the common good of the whole society. They are in fact laws contrary to natural law because they undermine the very foundations of human dignity and human coexistence rooted in justice. (Samaritanus Bonus V,9)
The compromise at all costs, in fact, cannot be the mark of politics, the more knowing well that jurisprudential and administrative practice will move the bar further down. Instead, the fracture should be overcome between those who desperately seek mediation without a soul and those who want the opposition for the pleasure of being in contrast with the mainstream. Only in this way can we avoid abandoning the first to the betrayal of values and to deliver the latter to ideologies that do not respect the life of all fragile subjects.
CONCLUSIONS
The dogma of absolute self-determination contains within it an iron logic of development. The final step towards euthanasia, which will make us like Canada, will most likely be written once again by the Constitutional Court, when it will be asked how it is possible to accept the objective discrimination that undoubtedly exists between those who are able to self-administer the lethal drug, although with the help of a health worker and with an injection pump, and those who can’t do even that. Without a leap of responsibility (cultural and political) and without a serious educational commitment, in order to meet the needs of these patients it will not be long before we officially open up to euthanasia (technically in fact it would no longer be assisted suicide, but the murder of a consenting person).
In ancient philosophy, with euthanasia, beautiful, quiet and natural death was indicated, accepted with a peaceful spirit as the fulfillment of life. It was something similar to the Christian "good death", the one that takes place in peace with God and with the brothers. Then came the desire for the "beautiful death", as a sudden death, of which not to notice, does not matter if without the possibility of repairing justice and reconciling with God and brothers.
The rejection of pain also came, that medicine had difficulty to soothe, now deprived of any redemption meaning.
Euthanasia began to be invoked with the new meaning of non-painful death, to be achieved by ending the life of a patient with the intention to avoid prolonged suffering over time. In the meantime, the eugenic movement also developed to impose sterilization to those whose reproduction would have added unnecessary burdens to the society in development, because affected by hereditary diseases or because belonging to lower breeds. Speaking of euthanasia and eugenics, there would be many prominent figures to be mentioned, especially in the Anglo-Saxon world. I mention only the two brothers Huxley, Aldous (author of “The Brave New World”) and Julian (biologist and future president of Unesco). I also remember that there were those who prophetically anticipated the project of the atheistic philanthropy that was developing in their times. This is the case of Robert Hugh Benson, author of "The master of the world".
It was Nazi Germany, however, that combined euthanasia and eugenics with the elimination of "lives unworthy of being lived": mental patients, intellectually disabled persons, Jews, gypsies, homosexuals. And it was for the horror aroused by the Nazis that the euthanasic movement lost ground.
A ground that has been widely reconquered as a side effect of medical progress: today the problem is proposed because medicine allows patients with chronic diseases to live until their old age, while keeping in life patients with prolonged disorders of consciousness and procrastinating the death of the children with malformations who escape to eugenic abortion.
What to do with these lives also considered “unworthy of being lived”? What to do if, even among those who are not yet sick, the belief has spread that living with a tube or having lost the memory is equivalent to a condition unworthy of life, compared to which it is better to anticipate death? What to do in the face of the fear of those who simply prefer to remove the burden that their condition impose to others? What to do if, even on a public level, doubts arise about the opportunity to allocate resources for an extension of life, which is deemed futile? It is evident that here it is no longer a matter of physical pain, for controlling which, however, the development of palliative medicine has made great strides.
The battle against the introduction of assisted suicide and euthanasia, even if it were lost, will not be useless if it will force us to reflect on the risks of a man without God, totally master of his destiny. It is only a more fragile and afraid man, without a supreme guarantor and deprived of the pity of his fellow men. A man who to affirm his freedom of decision must deny its root itself, life. A man who proclaims himself independent, while he is dependent on social pressure and propaganda of strong powers, who establish what is good for him.
The story of Covid pandemic has already shown how dangerous it is if someone else should decide to what extent a patient has the right to the respirator and care. However, the decision taken on a clinical basis and taking into account the availability of the devices is certainly more democratic than the suspension of the vital support decided by a judge, by a guardian or a support administrator, on the basis of a fake pity or a negative judgment on the "quality" of life. Still, this is precisely what would inevitably happen to those who cannot decide for themselves, if the right to kill themselves or to be killed in the name of self-determination would pass for those who can decide how to end their lives.
More than death, there is a society to fear that is afraid of life and that decides on its quality and dignity.
It is necessary to go back to repeat today that every life is precious, if only as a teaching and warning for those who are healthy and carefree; to repeat that there are no live is unworthy of being lived, but that everything depends on the eye with which we look at them ("dignity is in the eye of the beholder", as H.M. Chochinov said). For this reason, it is necessary to re-propose a kind of medicine made of care, listening and relationship with the person who is alone, who suffers, who does not want to be a burden on others, who would only like to be helped while asking to die. It is this the deeper meaning of palliative care, capable of covering human suffering with the cloak (pallium) of the care.
The antithesis to therapeutic obstinacy is not abandonment, nor even less the intentional death, but the solidarity accompaniment.
Those who support social justice and solidarity should be aware of that euthanasia and assisted suicide risk being the opposite of self-determination, becoming only the cost solution for a society that does not want to take charge of the growing number of elderly people suffering from chronic diseases. It is therefore necessary to wonder if, even in Italy, medically assisted death has nothing to do with freedom, but with a wrong reply to need, isolation, despair. If it is not a matter of rights (the right to die), but of duties (the duty to remove the burden represented by those who are more fragile or vulnerable).
They should also wonder what will be the consequences of the breakdown of the relationship of trust that binds the doctor and his patient since the times of Hippocrates.
For those who are Christians, finally, it is necessary to return to witness that suffering and death are only the door for the resurrection
When my moment will arrive, I hope that the transition from this life will take place in the arms of Jesus, who with his suffering and dying has opened the doors of the new world, a world fortunately deeply different from that described by Huxley.
More articles on the Italian euthanasia situation.
- Bad news: Tuscany has legalized assisted suicide (Link).
- Italian woman with Multiple Sclerosis dies by assisted suicide (Link).
- Disabled man is the first Italian to die by assisted suicide (Link).
- Italian lower house passes euthanasia bill for people with disabilities (Link).
- Italy's Constitutional Court rejects euthanasia referendum (Link).
- Italian assisted suicide court decisions focus on people with disabilities (Link).
