DIGNIFIED DEATH IN COMPARATIVE PERSPECTIVE
By Thiago Melim Braga
Incontestably, dignified death is a theme that has long permeated the debate about the science of law, bioethics, and biolaw, notably in European reality. Almost 18 years ago, Maurice T. Maschino published in Le Monde Diplomatique Brasil an article entitled “Europe already accepts a dignified death”.
Contextualizing historically, the Netherlands, after intense debates in 2002, legalized euthanasia and assisted suicide, becoming the first country in the world to have legislation allowing both practices. The law is dated April 12, 2001, regarding the End of Life upon Request and Assisted Suicide and amendments of the Penal Code and the Body Delivery Law, authorizing the practice of euthanasia and assisted suicide.
In the same way as the Netherlands, Belgium also legislated about the question in 2002, but did not establish an age limit for assisted suicide to be carried out, that is, there is greater freedom in the procedure (AZEVEDO, 2014), unlike the Netherlands, which only allows assisted suicide for those over 12 years old.
The premise, therefore, is that Europe has been debating the referred topic for some time, but the debate has been increasingly constant in that reality and, in particular, has contributed to the irradiation of the debate in other parts of the world, including South America.
The theme of dignified death is related to religion, culminating in points of divergence, most of the time. However, it is necessary to contextualize dignified death and face the theme from a secular point of view, notably in Western terms, as seen in some European countries, especially Spain and Portugal, this one more recently when compared to that one.
Dignified death can initially be contemplated as respect for dignity in the passage from life to death and respect for the values and beliefs of each individual (LIMA, 2015), which is why the secularity factor makes complete sense in the debate.
From a religious perspective, the defense must be for the state’s secularity, being understood as one in which neutrality is presented, that is, it doesn’t adopt one official religion, nor does it demonstrate aversion for some religions, as observed in the Diplomatique article, when it presents the advanced legislation question without religious opposition.
All of its forms are respected, as well as the option of not believing. Therefore, for the evolution of the legal discussion, it cannot be considered any religion because it is not applicable to the proposed discussion. Furthermore, there are countries like Portugal, even with strong religious influence, where the debates thrived, from 2006 to nowadays, not only from the judicial perspective, but in legislative activity and with a plural and consultative advisory body like the National Council of Ethics for Science of Life (Conselho Nacional de Ética para Ciência da Vida – CNECV).
The dignified death, in addition to being a recurrent theme for some years, is also a polemic topic, as it divides countless opinions, as explained above, as well in presenting other different themes in its frame: euthanasia, orthothanasia, assisted suicide, dysthanasia, misthanasia, palliative care, advance directives, and even denial of treatment or therapeutic refusal.
Thus, dignified death came to be understood as the possibility of patients with serious incurable diseases having access to methods of relieving symptoms, but also the possibility of choosing to interrupt their own lives (DADALTO, 2019, p. 4), which makes the concepts of euthanasia, orthothanasia and assisted suicide also relevant to the theme and its evolution.
However, before entering the necessary boundaries, there are basic principles of bioethics to be observed, such as non-maleficence, beneficence, justice, dignity, precaution, vulnerability, privacy and confidentiality, highlighting, with greater reason, those of dignity and autonomy.
The dignity must be understood as the dignity of the human person, which differs from the human dignity. The dignity of the human person takes us to an individual sphere, of that person, guaranteeing concreteness, different from human dignity, which is understood as a quality that must be common to all, and goes beyond a single person (MIRANDA, 2003, p. 84).
In the same way as dignity, autonomy is another elementary principle, so there is the provision of consent, assuming autonomy as a patient right. In view of this, there are three pillars on which consent is based: the ability to consent, adequate information, and the right to consent or refuse treatment.
With the aforementioned assumptions established – dignity, autonomy and secularism – conceptual life from the perspective of the European Union, which evolves a lot on the theme of dignified death, is that endowed with human dignity and not simply a technical-mechanical life, merely biological and maintained at all costs, objectifying the human person and treating him as a mere means and not as an end in itself (KANT, 2007).
Therefore, the European base, which accepts dignified death, also goes through the individualization of concepts, which have been studied and individualized for years, as demonstrated by the publication by Maurice T. Maschino, in different realities.
Therefore, euthanasia can be understood as the act of depriving the life of another person affected by an incurable disease, out of pity and in their interest, to end their suffering and pain. The agent’s motive, therefore, is compassion towards others (SANTORO, 2011, p. 117).
Moreover, in addition to euthanasia, highlighted in the text through the Dutch reality, assisted suicide has also been an object of prominence, with Switzerland as an exponent. The direct definition is the abbreviation of life made by the person who has a serious, incurable or terminal illness. In this case, the person is helped by someone else (doctor or not), who provides the means so that he can, by himself, shorten his life (DADALTO, 2019, p. 4).
And still in this area, as the driving force of the debates, we also have orthothanasia, etymologically, refers to death at the right time, since orthos, in Greek, means “normal” and, thanatos, “death” (SÁ; MOREIRA, 2015, p. 87). In addition to the etymological construction, we have the concept classified as the suspension of medication or the treatment of a patient, allowing the triggering of the natural process of death (DINIZ, 2010, p. 411).
Thus, from what has been revealed so far, we have under analysis, at opposite poles, the fundamental rights to life and freedom (in the broad sense). However, even knowing that fundamental rights are “trumps against the majority” (NOVAIS, 2006), for an adequate approach, it is clear that the evolution of the debate, proactively by the European reality and which is currently growing in the American reality, also goes through the meaning of the possibility of waiving a fundamental right, in its double dimension: exercise and self-restriction to the exercise or fundamental right.
As clarified, the dignified death theme can be observed through the bias of the civil society participation, of action of the Judiciary (breaking and provoking the jurisdiction) and/or lege ferenda, legislative proposals that also evolve the theme.
Switzerland has not legalized euthanasia, however, Article 115 of the Swiss Penal Code allows assisting in suicide if the assisting person does it for “non-selfish reasons”.
It is not necessary for a doctor to be involved. Despite this, the practice is not regulated in the country. The euthanasia, in turn, is prohibited by Article 114 in the same Penal Code. In Swiss reality, entities such as Exit promote the study and debate of this thematic area.
The Portuguese reality, in turn, has recently experienced five draft laws that regulate assisted death, which were approved by the Assembly of the Republic (the country’s legislative body) and sent for presidential sanction.
The approval of the legislative proposal that we will analyze here took place in February 2021, with the aim of decriminalizing euthanasia and assisted suicide in certain cases.
The “João Semedo Law” was named after the Portuguese doctor and deputy who fought for the right to assisted death and, after a battle against cancer that made him lose his voice, died on July 17, 2018 (SANTOS, 2018). With 136 votes in favor, 78 against, and 4 abstentions, the Portuguese Parliament approved the decriminalization of euthanasia.
The parliamentarians of the House voted, in total, on five proposals, presented by five different parties, about the legalization of the practice in specific cases and under strict rules, as verified by the Assembly of the Republic (PORTUGAL, Draft Law 4/XIV/1, 25 Oct. 2019, online).
The five texts have many similarities among themselves, whose approvals were given in a very favorable and comfortable way, undergoing a transformation into a single bill of law, which was finally voted on and sent for promulgation.
The bill text contemplates advances in the assisted death theme. The assessment by President Marcelo Rebelo de Sousa generated expectations, since, in the Portuguese constitutional system, there is the possibility of submitting the issue to the Constitutional Court or the imposition of vetoes.
In summary, the proposals presented and voted on established that euthanasia would not be punishable in the case of anticipating death by the decision of the person himself, greater, in a situation of extreme suffering, with definitive injury, of extreme severity, according to scientific consensus, or incurable and fatal disease, when practiced or helped by health professionals.
The evolution of the theme in Portuguese reality was more timid, even with the action and legislative militancy of deputies such as João Semedo, who gave the name to the final project, given the confessional religious question present in the country. Evolution was so much slower than in other European countries that a similar measure had been voted on in Parliament two years before and rejected.
Not only in Portuguese reality, but again in the Netherlands, due to the debate that started in 2002 and resumed in 2009 and 2010 due to a Dutch movement (Out Free Will), the intended purpose is to expand the scope of Dutch legislation on assisted death, in order to allow the procedure to also be made available to people over 70 who do not have a clinical condition (discussion on existential tiredness and the completed life pill).
Whether in the Netherlands, Belgium, Switzerland, or Spain, the topic is controversial, and remains so. The Brazilian reality is not different, due to the provisions of Article 122 of the Penal Code (inducement, instigation, or assistance to suicide or self-mutilation).
Notice the evolution of themes related to dignified death in the national territory, such as: living or biological will and advance directives, denial of treatment and/or therapeutic refusal and palliative care, but not specifically dignified death.
Furthermore, the legislative issue moves in the opposite direction to the European scenario, through the New Penal Code project for the end of the chapter (PLS n. 236/2012), showing that the crime provided for in art. 122 will be maintained, that is, typified as illicit, but changes will be added in its wording, in the regime and in the quantum of the penalty. In fact, the current art. 122 will become art. 123, with some changes in relation to the current § 4, § 5, § 6 and § 7, which will be allocated to other specific criminal types.
Article 122 (of the legislative proposal), in turn, will contain an express provision on the typification of the crime of euthanasia (killing, out of pity or compassion, a patient in a terminal, attributable, and major condition, at his request, to abbreviate unbearable physical suffering in reason for serious illness: Penalty – prison, from two to four years).
The evolution of Brazilian and world realities is certainly driven by European reality. There are those who defend a lege ferenda solution, which does not seem simple in view of the project exposed above, or, even, an interpretation in accordance with the Constitution of all devices related to the question of dignified death, but also requires caution, reinforcing the non-trivialization of the very right to life.
Whether through conforming interpretation, with or without text reduction, or reinforcing the debate on the subject, even for a legislative evolution, as we perceive in European reality, it is necessary to debate and evolve, allowing the theme to find places and agents of promotion of the debate, as is the case in question.
Even after a certain period of time, Maurice T. Maschino’s conclusions remain current, in the sense that the right to die in dignity should be considered fundamental, humanly understandable, socially acceptable and politically defensible. However, the question he formulated persists: where is the problem?
AZEVEDO, Reinaldo. Bélgica aprova eutanásia em crianças. Veja, 13 fev. 2014. Disponível em: http://veja.abril.com.br/noticia/saude/belgica-aprova-eutanasia-em-criancas. Acesso em: 25 jul. 2023.
DADALTO, Luciana. Morte digna para quem? O direito fundamental de escolha do próprio fim. Pensar, Revista de Ciências Jurídicas, Fortaleza, v. 24, n. 3, p. 1-11, jul.-set. 2019. Disponível em: https://periodicos.unifor.br/rpen/article/view/9555. Acesso em: 27 jun. 2023
DINIZ, Maria Helena. O estado atual do biodireito. 7. ed. São Paulo: Saraiva, 2010.
KANT, Immanuel. Fundamentação da metafísica dos costumes. Trad. do alemão Paulo Quintela. Lisboa: Edições 70, 2007
LIMA, Carolina Alves de Souza. Ortotanásia, cuidados paliativos e direitos humanos. Revista da Sociedade Brasileira de Clínica Médica, v. 13, n. 1, p. 14-17, São Paulo, jan.-mar. 2015
MIRANDA, Jorge. A constituição portuguesa e a dignidade da pessoa humana. Revista de Direito Constitucional e Internacional. São Paulo, v. 45, p. 84, out.-dez. 2003.
NOVAIS, Jorge Reis. Perspectivas constitucionais nos 20 anos da Constituição de 1976. Coimbra: Coimbra, 1996.
PORTUGAL. Assembleia da República. Projeto de Lei 4/XIV/1. 25 out. 2019. Define e regula as condições em que a antecipação da morte, por decisão da própria pessoa com lesão definitiva ou doença incurável e fatal e que se encontra em sofrimento duradouro e insuportável, não é punível. Disponível em: https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=43947. Acesso: 27 jun. 2023.
SÁ, Maria de Fátima Freire de; MOUREIRA, Diogo Luna. Autonomia para morrer: eutanásia, suicídio assistido, diretivas antecipadas de vontade e cuidados paliativos. 2. ed. Belo Horizonte: Del Rey, 2015.
SANTOS, Lina. Morreu João Semedo, “um homem extraordinário”. Diário de Notícias, 17 jul. 2018. Disponível em: https://www.dn.pt/poder/morreu-joao-semedo-antigo-lider-do-be-9602096.html. Acesso em: 22 jun. 2023.
SANTORO, Luciano de Freitas. Morte digna: o direito do paciente terminal. Curitiba: Juruá, 2011.
