Legalization
of euthanasia in Ecuador
Edri
Alexander Crespo Jama[*]
Luciana
Valentina León Salazar*
Peter
Steven Villao Vélez*
Abstract
Starting from a reality, terminal
illness is recognized as a limitation to a dignified life for people. The law establishes as one of its principles the protection and
guarantee of the fundamental rights of the holder of the right, in this case
the human being. Throughout this document, we will establish the legal
principles that have played a key role in the legalization of euthanasia in
Ecuador, such as criminal law and the principles of arbitrariness and
proportionality. Likewise,
it will demonstrate the role that the judicial body has taken, in this case the
power of one of the jurisdictional bodies of the Republic, in the judicial
resolution around the clear legal concern that encompasses the legalization of
an induced death in a State recognized as a guarantor of constitutional rights.
Keywords: Euthanasia; dignified
death; dignified life; constitution; constitutional court; COIP; medical code
of ethics; proportionality; arbitrariness
Legalización
de la eutanasia en el Ecuador
Resumen
Partiendo de una realidad, la enfermedad terminal es reconocida como una
limitante hacia la vida digna de las personas. La ley establece dentro de sus
principios la protección y la garantía de los derechos fundamentales hacia el
titular del derecho, en este caso del humano. A lo largo de este documento se
establecerán los principios jurídicos que han jugado un punto clave dentro de
la legalización de la eutanasia en el Ecuador, como lo es el derecho penal y
los principios de arbitrariedad y proporcionalidad. Así mismo, se demostrará el
rol que ha tomado el órgano judicial, en este caso el poder de uno de los
órganos jurisdiccionales de la República, en la resolución judicial en torno a
la clara inquietud legal que abarca la legalización de una muerte inducida en
un Estado reconocido como garante de derechos constitucionales.
Palabras clave: Eutanasia; muerte digna; vida
digna; constitución; corte constitucional; COIP; código ético médico;
proporcionalidad; arbitrariedad
.
Received : 12-10-2024
Approved: 20-12-2024
INTRODUCTION
In its linguistic
origin, the term law comes from the Latin word directum, which refers to that
which conforms to the norm established by the law, which does not deviate from
the straight path and which follows the course established by the law. In general,
law is understood to be the set of legal norms created by the State to regulate
the external conduct of men, and in the event of non-compliance, this is
subject to judicial sanction. “The Law is the set of rules that impose duties
and norms that confer powers, that establish the basis for social coexistence
and whose purpose is to provide all members of society with the minimums of
security, certainty, equality, freedom and justice.” (Pereznieto and Castro
Leonel, Ledesma Mondragón Abel, Introducción al estudio de Derecho, second
edition, Harla publishing house, p.9).
Now, the law has two meanings, one strict and one broad. In the strict sense,
the law is a rule of law directly emanating from the Legislative Power, with
the approval and sanction of the Executive Power, through the respective
promulgation; but in its broad sense, the law is an abstract and obligatory
rule of conduct, of a general and permanent nature, which refers to an
indefinite number of people, acts or events, with application for an indefinite
period of time and endowed with the coercive character of law.
Following this line of argument, the rule of law is also a model of legal
organization in which all members of a society are considered equally subject
to publicly disclosed legal codes and processes. In this sense, it is a
condition that refers to respect in general for an entire normative system;
reflecting the democratic ideal in the exercise of rights which is limited by
law: in other words, a regime in which the natural person acts only within the
margins established by law and its legitimacy depends, precisely, on its
adherence to those limits (Bobbio, 2015: 458). The rule of law, within its
functions, seeks to guarantee the principles inherent to the judicial nature:
the supremacy of the law, equality before the law, the separation of powers, the
protection of fundamental rights, and the legality of public acts.
In view of the above, in the course of this document we will focus on two key
points that will underpin the legalization of euthanasia from a legal
perspective: the protection of fundamental rights, and the role that the
judicial body of the State, as in this case the Constitutional Court being one
of the jurisdictional bodies of the country, has within the legal analysis of
the case. Because the law, despite being imposed as a coercive body, requires
entities to demonstrate its application and exercise in practice.
METODOLOGÍA
This article
adopts an interdisciplinary methodological approach that combines legal
analysis, doctrinal review and normative comparison. This methodology allows us
to explore the issue of the legalization of euthanasia from constitutional,
criminal and ethical perspectives, evaluating its viability within the
framework of the Ecuadorian legal system.
An exhaustive
study of Ecuadorian constitutional and legal norms was carried out, with
emphasis on the 2008 Constitution of the Republic of Ecuador and the
Comprehensive Organic Criminal Code (COIP). This analysis included an
identification of relevant constitutional provisions, such as the rights to a
dignified life and to liberty, an evaluation of the principle of
proportionality and its applicability in Ecuadorian criminal law, considering
Article 144 of the COIP on simple homicide, and a review of Constitutional
Court rulings addressing issues related to human dignity and dignified death.
A systematic search was carried out in recognized academic databases, such as
Scopus, JSTOR, Google Scholar and Redalyc. The selection of sources was based
on the following criteria of relevance, academic quality and critical
perspectives.
Legislation and case law from countries where euthanasia is legal, such as the
Netherlands, Belgium and Colombia, were studied to identify elements that could
be adapted to the Ecuadorian context. This analysis included a comparison of
legal principles, medical procedures and the social impact of legalization.
Studies and theories on human dignity and the right to a dignified death were
considered, emphasizing the impact of terminal illnesses on quality of life.
Ethical arguments for and against euthanasia were also analyzed, incorporating
perspectives from both medical professionals and jurists.
RESULTADOS
The
word “euthanasia”, etymologically formed by the terms “eu”, which means good
or well,
and “thanatos”, which means death, means
nothing more than a good death, dying well, without further ado. Euthanasia is
understood to be that passive or active action aimed at killing incurable
patients in a painless and compassionate manner. It is important to understand
that euthanasia has two types of definition: active and passive. Active
voluntary euthanasia is synonymous with killing. The doctor complies with the
explicit request of a competent patient to carry out an act that causes the
patient's death, which occurs immediately after it is completed. The doctor's
action is both necessary and sufficient. On the other hand, passive voluntary
euthanasia is letting die; it is when the doctor responds to the request of a
competent patient not to accept a treatment knowing that by doing so, the
patient will die faster than if the doctor had not accepted the request and had
initiated or continued said treatment.
Constitutional State:
Constitution of the Republic of Ecuador
Art. 1.- “Ecuador is a constitutional state of rights and justice, social,
democratic, sovereign, independent, unitary, intercultural, plurinational and
secular. It is organized as a republic and is governed in a decentralized
manner.” (Constitution
of Ecuador 2008, Art. 1).
The constitution is a set of fundamental legal and
political norms that are binding on everyone in the state, including ordinary
legislative institutions; they relate to the structure and functioning of
government institutions, political principles and citizens' rights to broad
public legitimacy. Its norms are more difficult to change
than ordinary laws (for example, a two-thirds majority or a referendum is
needed); and, at a minimum, they meet internationally recognized criteria for a
democratic system in terms of representation and human rights. (Elliot Bulmer,
International IDEA, N/A).
It should be noted that, as previously anticipated, the Constitution of the
Republic of Ecuador provides for a division of public powers into: executive,
legislative, judicial, electoral, and transparency and social control. Thus,
the exercise of their rights, in this case constitutional rights, relies on the
rigorous application of the principles and the legal judgment of its norms with
respect to the circumstances or objectives of a person that require the
knowledge and ability of an entity in charge of the exercise of said rights.
In this respect, emphasizing the work of the judicial body, Art. 178 of the
Constitution points to the existence of jurisdictional bodies in charge of
administering justice, which include the National Court of Justice, the
provincial courts of justice, the tribunals established by law, and the
magistrates' courts; as well as being part of the Constitutional Court of the
Republic of Ecuador. However, within this classification, the Organic Code of
the Judiciary stipulates in Articles 5 and 6 that these bodies have an
obligation to comply with the principle of direct and immediate applicability
of constitutional law and the integral interpretation of constitutional law (OAS,
N/A); the same principles that will help us to understand the legal analysis
that embarks on the unconstitutionality and constitutionality of a law imposed
in it, in this case , those that attempt to classify euthanasia as an illegal
act in relation to constitutional rights.
The provisions of our constitution demonstrate the importance of guaranteeing
rights and the importance of living with them, and even more, knowing how to
exercise and enjoy them; to establish that euthanasia violates the right to
life is to take away the right of the subject to enjoy their rights to freedom,
especially when the Republic of Ecuador presents itself as a Constitutional
State of Rights and Justice in Article 1 of its constitution, in which case it
would not fulfilling its aim of being an equitable and egalitarian country,
which is what the country always aspires to be.
As established in the Constitution of the Republic of Ecuador in Chapter Six
Freedom of Rights, "Every person under the law must
be recognized and guaranteed the right to the inviolability of life, as well as
the right to a dignified life, which ensures health, food, nutrition, drinking
water, housing, environmental sanitation, education, work, employment, rest and
recreation, physical culture, clothing, social security and other
necessary social services.” (Constitution of Ecuador 2008, Art. 66.-1-2)
However, it must be understood that in order to guarantee the enjoyment of the
right to a dignified life, the state must guarantee the right to a dignified
death. In effect, what is meant here by ‘right to a dignified death’ is the
right to experience one's own death in a humane manner. This statement
implicitly carries the idea that, faced with the inevitability of death, there
is room for a certain exercise of our freedom. Understood in this way, a dignified death cannot be
considered a merely passive phenomenon that happens to us and in the face of
which we remain powerless, but rather a “human act”, that is to say, an act in
which our freedom could intervene to some extent.
With this in mind, it is essential to emphasize that a
dignified life is not granted when a person's life is merely governed by
catastrophic medical circumstances and terminal illnesses that unintentionally
end up limiting the person's capacity to live and their fundamental right to
dignity. This invaluable right that is human
dignity has its roots in the internal value that corresponds to man by reason
of his being, the dignity of people is the basis of all society, because the
value of the person is recognized by the simple fact of being a person, it is
the right that all human beings have to be valued as individual and social
subjects, with our particular characteristics, by the simple fact of being
people. Dignity also implies the right to be ourselves and to feel fulfilled.
Consequently, the right to a dignified death is legitimate before a law that
allows it without imposing it on anyone, but is a manifestation of the will of
the person (Valls,
2015). Thus
emphasizing that no form of practice that guarantees the invaluable right to
human dignity and the right to a dignified life should be classified as a
crime.
Thus, the right to a dignified death is a social
dispute of great importance worldwide, which is why some European and Latin
American countries have recognized this right intrinsically by recognizing the
right to a dignified life in each of their legislations. However,
upon realizing that the Republic of Ecuador has not formally recognized the
right to a dignified death in its legislation, we have been led to cite the
state's obligation to adapt the necessary norms to guarantee human dignity,
where the National Assembly and any body with regulatory power will have the
obligation to adapt, formally and materially, the laws and other legal norms to
the rights provided for in the Constitution and international treaties, and to
those necessary to guarantee the dignity of the human person or of communities,
peoples and nationalities, as framed by Art. 84 of the constitution:
Art. 84.- “The National Assembly and any other body with regulatory power shall
have the obligation to adapt, formally and materially, the laws and other legal
norms to the rights provided for in the Constitution and international
treaties, and those that are necessary to guarantee the dignity of human beings
or of communities, peoples and nationalities. In
no case shall the reform of the Constitution, the laws, other legal norms or
the acts of public power attempt against the rights recognized by the
Constitution.” (Constitution
of Ecuador 2008, Art. 84).
This makes it clear that the state has a full
obligation to provide the due legal analysis that addresses the issues of the
constitutionality of laws that violate the fundamental rights of the subject of
the law, who in this case suffers from catastrophic and terminal illnesses, and
that the state, by denying his right to die with dignity, ends up undermining
his full right to live with dignity.
Constitutional Court of the Republic of Ecuador
However, understanding the jurisdiction of the
Constitutional Court is fundamental to understanding the interpretation of the
law and the legal analysis of the legislation on euthanasia. The
Constitutional Court is the country's highest court in matters of
interpretation, protection and enforcement of the Constitution; it is an
autonomous and independent body for the administration of constitutional
justice, part of the judiciary of the state, and
has vast national and international prestige. It deals exclusively with constitutional matters, that
is, with cases that raise questions about the application or interpretation of
the Constitution.
Regarding the right to a dignified death, the
Constitutional Court refers to it as a “right of those who suffer and have
suffered serious illnesses” and points out that the Court recognized it in
judgments 679-18-JP/20 and 679-18-JP/20 and other accumulated judgments,
affirming that the right to the full enjoyment of health implies the
improvement of capacities and potentialities so that the life of the person
with illness is as full as possible, and that for these capacities to also be
potentialities for life, the consideration of a natural and dignified death,
without pain or suffering, should be implied. In
this sense, it points out that the patient has the right to decide and define
his or her understanding of the highest possible level of health during the
course of his or her illness until his or her death. Therefore, the person should be able to choose to stop
and change the treatment with medication.
It is essential to understand that the Constitutional
Court of Ecuador states that if a person, in the use of their mental faculties
and free of coercive pressures, makes decisions that affect only themselves and
do not affect the rights and protection of others, they cannot be forced to act
according to what others consider appropriate or best for them, as this
decision is of an eminently private nature of the inherent right to freedom. In
Ruling 67-23-IN/24, the court considered that it is unreasonable to impose on
people in such situations the obligation to be kept alive, without considering
their intense anguish and suffering, when there are more compassionate options
available to them to end their pain. Therefore, the Comprehensive Organic
Criminal Code (hereinafter COIP) should not criminalize what the Constitution
recognizes as the exercise of a right derived from dignity and freedom.
However, the Constitution guarantees the protection of life from arbitrary
behavior, and in this sense, the State provides a regulatory framework to deter
any threat. Thus, the COIP has classified simple homicide and included it
within the framework of freedom rights, as it aims to guarantee that the holder
of the legal right freely decides on the conditions of its exercise. To this
end, it has structured a justice system to investigate, punish and provide
reparation when the deprivation has been arbitrary.
Having analyzed the opinion of the court, it is now known that the main
obstacle to the exercise of the right to a dignified death is the criminal
offense of simple homicide (Art. 144 COIP), as it generates a legal conflict
that requires a constitutional interpretation that must be resolved in accordance
with the principle of minimum penalty and proportionality of penalties, the
principle of proportionality to resolve normative conflicts between rights, and
the need for a constitutional interpretation in accordance with the
Constitution. It is proposed to legalize euthanasia with the argument that the
questioned norm violates constitutional provisions such as the rights to
dignity, free development of the personality, promotion of autonomy and
reduction of dependency, physical integrity, prohibition of cruel, inhuman and
degrading treatment and the right to die with dignity.
But something must be understood, Art. 144 of the COIP
criminalizes simple homicide, and one would believe that ending a life through
euthanasia is practicing this crime, but legal interpretation allows the
subject of law to understand that euthanasia cannot be defined in such a simple
way. In sentence 67-23-IN/24, the constitutional court indicated
that, as long as euthanasia exists, the contested regulation would be
decriminalized and classified as unconstitutional under certain requirements;
in this sense, the court also pointed out that the public action of
unconstitutionality is limited to the analysis and contrast of the norms that
are supposedly contrary to the Constitution. In this instance, the disputed
regulation violates the rights to: human dignity; the free development of the personality;
the promotion of autonomy and the reduction of dependency; physical integrity
and the prohibition of cruel, inhuman and degrading treatment; and the right to
die with dignity.
These rights are based on the right to freedom that people have to live life to
the full. There is no dignified life without freedom. Not allowing a dignified
death through euthanasia for people with the aforementioned conditions implies
the violation of constitutional rights, and due to the interrelation and
interdependence of these rights, it is alleged that the right to die with
dignity is being violated. Furthermore, it must be understood that even when a
person in intense suffering decides, in the exercise of their radical freedom,
to end their life through a process of euthanasia, their life, in principle,
continues to be valuable because it is their final decision to take it. (Judges Teresa Nuques
Martínez and Richard Ortiz Ortiz, Ruling CCE
67-23-IN/24).
Principle of arbitrariness
Consequently, the term arbitrariness in law refers to
decisions, actions or norms that lack reasonable, objective or well-founded
justification, violating basic principles of justice, legality and
proportionality. This occurs when the person acts based
on his or her personal will, without adhering to clear legal criteria or
respecting fundamental rights. For example, an arbitrary act may consist of
issuing a sanction without basing it on evidence or on applicable law. In the
constitutional sphere, arbitrariness is considered a violation of the rule of
law, as it disregards the guarantees of impartiality and fairness regarding
fundamental rights.
Under this proposition, the Inter-American Court of Human Rights in the aforementioned
case has reiterated that the right to life will be violated when the
deprivation has occurred arbitrarily as a result of the use of force in an
illegitimate, excessive or disproportionate manner. Thus, even though the
protection of the right to life is a fundamental value within the Constitution,
it cannot be interpreted in an absolute manner. Consequently, conventional,
constitutional and legal regulations have established cases in which the
deprivation of life is not punishable when this deprivation is not arbitrary or
illegitimate.
In this context, General Comment No. 36 of the
International Covenant on Civil and Political Rights, in relation to Article 6,
has stated that the concept of 'arbitrariness' should not be equated with
'against the law', but should be interpreted more broadly to include elements
of inadequacy, injustice, unpredictability and considerations of
reasonableness, necessity and proportionality. Having
made this clear, it is well understood that the conventional and constitutional
recognition of the right to life and its regulation in Criminal Law share a
common objective: the protection of life against its arbitrary
andillegitimate deprivation; and that, therefore, the use of medically induced
death in reasonable, necessary and proportionate conditions would not
constitute an arbitrary deprivation of life, and therefore the practice of
euthanasia would be legal .
Principle of proportionality
The principle of proportionality fulfils the function
of structuring the interpretative procedure for determining the content of
fundamental rights that is binding for the constitutionality control of laws. It
has 3 principles for it to be legitimate: suitability, necessity and
proportionality in the strict sense:
1. The principle of suitability will tell
us that the omission or insufficient action of the authority in the protection
or guarantee of fundamental rights is correct as long as it contributes to the
achievement of some other constitutionally legitimate end;
2. The principle of necessity implies that
the omission or insufficient action of the authority is correct if it produces
more benign consequences than its active intervention,
3. The principle of proportionality, in
the strict sense, must imply that the omission or insufficient action of the
authority that affects fundamental rights—in order for it to be correct—is
compensated by the importance that these have for the satisfaction of other
fundamental rights or principles that are satisfied.
As for proportionality itself, the rights at stake are the right to a dignified
life of the person seeking a dignified death and the freedom of the person
assisting them. However, the branch of law that would best safeguard the right
to a dignified death, in conditions of intense suffering, requires the
application of the principle of proportionality and balancing of rights to
determine whether, in cases of assistance for a dignified death, the crime of
homicide is proportional. In line with this, it is stated that the
proportionality test verifies whether the measure subject to constitutional
control has a constitutionally valid purpose, and is suitable, necessary and
proportional; clarifying the unconstitutionality of Article 144 of the COIP
under this legal analysis, provided that the criteria are met.
Criminal Law
and euthanasia
Article 144 of the COIP establishes: Homicide: “A person who kills another shall be punished with a prison sentence of
between ten and thirteen years.” However,
throughout this document we have pointed out that for criminally relevant
conduct to be unlawful, it must threaten or harm a protected legal interest
without just cause, but it distinguishes that there will be no crime when the
typical conduct is justified by a state of necessity. This means that, in the
aforementioned circumstances within the practice of euthanasia, the legal
interest in life can be harmed without the conduct constituting a crime or
meriting punishment. In this specific situation, the right to life is not
absolute, as its violation would be justified. From the examples given above,
it can be inferred that criminal law intervenes minimally because the right to
life was not arbitrarily deprived, as the conduct in question is justified
under the law and in consideration of the protection of other constitutional
rights.
The right enshrined in Article 66, paragraph 1, of the Constitution of the
Republic of Ecuador safeguards the right to life in its dimension of
subsistence and is protected by Article 144 of the COIP against arbitrary and
illegitimate deprivation. Art. 66.- The following is recognized
and guaranteed to all persons: 1. The right to the inviolability of life. There
shall beno death penalty (Constitution of Ecuador 2008, Art 66.-1). However,
in the scenario of euthanasia, it is now understood that the conduct does not
present such characteristics, since the deprivation of life occurs with the
consent and express request of the holder of the legal right, who seeks
euthanasia due to intense suffering resulting from a serious and irreversible
bodily injury or a serious and incurable illness . Consequently, the
application of the penalty contemplated in the norm to the active subject
becomes controversial, since it does not genuinely protect life against an
illegitimate and arbitrary act given the particularities of the scenario; the
criminal offense of homicide will pursue as a constitutionally valid end the
protection of the right to life whenever the deprivation is unlawful, without
this, in principle, the object of Criminal Law to sanction behaviors that, even
though may be antisocial, do not pose a risk to the person, nor to the legal
rights of third parties.
Therefore, a criminal sanction “lacks legitimacy if it
punishes behavior that does not threaten or harm the legal rights of others,”
and in this case, it is recognized that the practice of euthanasia does not
harm or threaten the legal rights of others, since it is the person who, in
full enjoyment of their inherent right to freedom, as well as to human dignity,
voluntarily chooses to end their life in an induced manner; thus, to have a
criminal sanction against its practice would be, in the literal sense of the
word, an illegitimate sanction. For the
substantial difference between death by compassion and simple homicide is that
the person who asks for and pleads for death is the holder of the right to
life, and therefore cannot be considered a victim, but rather a holder of
rights.
Life is a legal asset and a personal right whose
exercise corresponds to each individual and is legally protected against third
parties, not constituting an obligation or duty towards others. In
this context, every human being, by virtue of their autonomy and free
development of personality, has the right to make free and informed decisions
that affect their personal development. Thus, it was demonstrated that the
legal text under debate aims to protect life from arbitrary and illegitimate
deprivation. However, in the scenario analyzed, the patient consents to and
expressly requests the procedure while experiencing extreme suffering. Intense
suffering derived from illnesses, whether terminal or not, or from bodily
injuries can significantly affect people's ability to exercise their
fundamental rights.
In these situations, not only is pain experienced, but
substantial limitations arise for those who suffer it to carry out their life
projects, contradicting their values, ideals and goals of personal development.
People facing such conditions may even lose their personal
sense of what it is to live with dignity. Therefore, the charge that affirms
the constitutionality of the article regarding life as an absolute does not
consider the second dimension of the right to a dignified life recognized in
the Constitution, since it focuses on the biological dimension, on subsistence,
but the right is not satisfied only in this way, but with the concurrence of
factors that allow it to reach the ideals of each person.
In this context, a weighing up of fundamental rights
takes place, where greater importance is given to the fulfillment of the rights
to free personal development and to a dignified life. Therefore,
the court considered that for the legal practice of euthanasia, the application
of the sanction established in article 144 of the COIP is of conditional
constitutionality as long as the sanction is applied in the scenario addressed
throughout the practice of euthanasia. This unconstitutionality is limited
exclusively to the aforementioned case, requiring the conditional
interpretation of simple homicide to safeguard the scenarios in which the norm
is not unconstitutional.
Unconstitutionality: Medical Code of Ethics and Simple Homicide
Due to the fact that in the procedure involved in the practice of euthanasia,
an intermediary is required to carry it out, in this case the doctor, the court
determined that the application of the sanction imposed on the doctor who
carries out the conduct typified in article 144 of the COIP in the context of a
euthanasia procedure is unconstitutional. This body realizes that the rules of
the Code of Medical Ethics prescribe that the doctor is not authorized “to
shorten the life of the patient” and that his greatest responsibility will be
the “preservation of the life of the patient,” thus maintaining a direct
connection with the prohibition and sanction of article 144 of the COIP, which
merits simple homicide. So, the court ruled on articles 6 and 90 of the Code of
Medical Ethics in light of the following legal problem.
Articles 6 and 90 of the Code of Medical Ethics state
that:
Art. 6. – The doctor, from the moment he is called to attend to
a patient, becomes responsible for providing him with all the medical care
necessary for him to recover his health. His greatest
responsibility will be to preserve the patient's life. (emphasis added).
Art. 90. – The
doctor is not authorized to shorten the life of the patient. His fundamental
mission in the face of an incurable illness will be to alleviate it through the
therapeutic resources available. (emphasis added).
Two medical obligations emerge from the regulations under study: to “preserve”
life and, in the face of an incurable illness, to “alleviate” it. The normative
provisions understand life as a right that deserves protection from an absolute
and indisposable conception because even when the person suffers intense
suffering from a serious and irreversible bodily injury or a serious and
incurable illness that prevents the promotion of their autonomy and the
reduction of dependence, life must be protected.
As already determined in the previous section, the protection of life through a
criminal law or a provision of a different nature - as in this case - will be
constitutional when an arbitrary and illegitimate deprivation is configured.
Furthermore, it would come into conflict with the case in question, since the
termination of life in a context of intense suffering from a serious and
irreversible bodily injury or a serious and incurable illness is presented as a
reasonable and merciful alternative available to those who find themselves in
such circumstances.
Consequently, the aforementioned provisions are unconstitutional because they
unreasonably hinder the exercise of the rights to a dignified life and the free
development of the personality by preventing the assumption addressed in this
ruling.
However, in order to effectively address the connection of these regulations
and the alleged charge of homicide surrounding euthanasia, reference is made to
Article 116 number 3 of the Organic Law of Jurisdictional Guarantees and
Constitutional Control (LOGJCC of Ecuador 2009), which
prescribes that in order to determine the connection between the legal
provisions, the Constitutional Court must take into account the explanatory
memorandum and the variations between the original texts and the definitive
texts, among others. Likewise, the jurisprudence reiterates that: The
Constitutional Court is competent to analyze the unconstitutionality of related
norms, provided that the existence of normative unity is configured through the
verification of:
1. That the accused provision or its content is reproduced in other normative
texts not demanded;
2. That it is not possible to produce a ruling on an expressly challenged legal
provision without also ruling on another with which it has a close and
essential connection and/or;
3. That the
contested provision is a consequence or direct cause of other uncontested
provisions;
In this way, the court has declared the conditional
constitutionality of the provision in question. In
such a way that it is determined that said article will be constitutional as
long as (i) the doctor who commits the act typified in article 144 of the COIP
is not punished in the event that (ii) a person, expressing their unequivocal,
free and informed consent (or through their representative when they cannot
express it), requests access to an active euthanasia procedure; (iii) due to
the suffering of intense suffering resulting from a serious and irreversible
bodily injury or a serious and incurable illness.
Similarly, Article 90 of the Code of Medical Ethics was declared
unconstitutional and Article 6 was declared constitutional in accordance with
the criteria addressed in the practice of euthanasia, that is, in cases where
(i) the doctor carries out the conduct defined in Article 144 of the COIP when
(ii) a person, expressing their unequivocal, free and informed consent (or
through their representative when they cannot express it), requests access to
an active euthanasia procedure (iii) due to the suffering caused by a serious
and irreversible bodily injury or a serious and incurable illness. On the other
hand, because Article 90 expressly prohibits active euthanasia practices and
having determined that this assumption is incompatible with the Constitution,
it becomes unconstitutional and must be expelled from the legal system.
CONCLUSIONES
As a
final reflection and after analyzing the case presented, it is now clear that
the legislation on euthanasia in Ecuador is a legal dispute that, if resolved
correctly, reaffirms the interrelated constitutional rights within the
country's legal framework, in particular the rights to dignity, to a dignified
life and to freedom. In this context, it is recognized that laws should not be
considered absolute, as their arbitrary application would contravene the
fundamental principles of a constitutional state that seeks to ensure the full
protection of human rights. The Constitutional Court, in the exercise of its
authority, has demonstrated that both the law and rights are not absolute, but
can be adjusted under specific circumstances. Thus, the legalization of
euthanasia in Ecuador reflects the flexibility and adaptability of the legal
system, which, while respecting individual rights and human dignity, is aligned
with the principles of justice and proportionality.
The practice
of euthanasia, as well as being seen as a medical practice, should be
recognized as a legal guarantee for the subject of the law. The constitution of
the Republic of Ecuador establishes the recognition of life with dignity as a
fundamental right, and we have resolved that for a life to be dignified, it
must possess that characteristic until the end of its life. The principles of
the law that attempts to classify this practice as a crime have allowed us to
reach the conclusion that euthanasia is not an infraction as such, as we now
understand that it is a practice that guarantees rights.
Through the
principle of proportionality, it has been explained how the legal
interpretation of extraordinary circumstances allows the legal body to adapt
the regulations, and thus guarantee that the established rights are in force
and celebrated by the natural person. Because one thing must be made clear, it
is understood that the law is applicable to everyone, but it must also be
understood that unfortunately we do not all live under the same circumstances.
To this, the applicability of the law varies in highly relevant situations,
such as a situation that warrants the induced termination of a life.
On the other
hand, the principle of arbitrariness has allowed us to understand that the
practice of euthanasia is not related to the unlawful termination of human
life. The law is clear, the deprivation of life must be labeled a crime as long
as it is the product of the illegitimate, excessive or disproportionate use of
force. And euthanasia, when requested within reasonable, necessary and
proportional frameworks, cannot be recognized as against the law. The norm in
question should not be taken in an absolute way, since the absolutism of a norm
would mean the existence of an incongruent literality in its application. We
understand that the interpretation and flexibility of the disputed norm is an
analysis that the State itself must take into account in order to promote
equality, equity and justice in its application; otherwise, instead of
promoting the guarantee of rights, we would find ourselves in a situation of
ignorance and omission of fundamental rights inherent to the holder of those
rights.
Thus, through
the application of these principles, the courts of the Republic of Ecuador have
managed to resolve the legal dispute in question. The State's judiciary,
through one of its courts, established by means of sentence 67-23-IN/24 that
the articles that classify the practice of euthanasia as a direct violation of
the criminal law of simple homicide, together with the practice of medical
intermediation, would be declared unconstitutional under the attention of a
legal request for euthanasia. In this way, the purpose of our republic is
reaffirmed once again in accordance with the law and its application, Ecuador
being an equitable, egalitarian country that guarantees constitutional rights.
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