The Constitutional Court is processing another complaint regarding the decriminalization in some cases of medically assisted suicide (SMA), as an alternative to access the right to die with dignity in an early manner, in which the Ministry of Health objects to a substantive decision by the high court.
According to the newspaper El Tiempo, the health portfolio sent a concept to the Court regarding the study of the lawsuit filed by the Laboratory for Economic, Social and Cultural Rights DesClab, a platform, law firm and consulting firm that seeks to “put human rights into action”.
The Ministry of Health took the same position as the Office of the Attorney General of the Nation, that the Constitutional Court should not decide on the petition, but that it should be the Congress of the Republic that legislates on the matter, for two main reasons.
DesClab's lawsuit argues that it is incompatible to allow euthanasia, a right protected and which was extended by the Constitutional Court itself, while at the same time it is illegal to provide aid to medically assisted suicide. Through this process, they seek that the participants in the SMA, when there is free consent, a diagnosis of bodily injury or a serious and incurable illness, severe physical or mental pain that affects the patient's idea of a dignified life, do not commit a crime.
The Ministry of Health's first reason for the possibility of including assisted suicide in alternatives to the voluntary end of life being discussed by Congress is that this right of individual freedoms is already guaranteed by the decriminalization of euthanasia. In that case, the Court can only decide to guarantee fundamental rights.
“The absence of the SMA option does not limit the fundamental right to die with dignity in advance, nor does it prevent the provision of assistance when conditions for access to such an option are met,” says the concept as quoted by the newspaper El Tiempo, which states that the alternatives to this guarantee are not infinite; as well as that the euthanasia is not comparable to assisted suicide.
The other reason for the Ministry of Health is procedural. According to the concept, creating the alternative through decriminalization affects the way it will be developed, in addition to the fact that the GHS requires structures, medicines, assistance, among other conditions.
Likewise, he believes that doing so could “deepen the already complex legal-welfare tensions resulting from the absence of a law”. This situation has been evident in the cases of euthanasia that were carried out during 2021, which were hindered by various interpretations of court decisions.
For the Office of the Prosecutor, that is the reason why the debate is no longer the responsibility of the Court, but of Congress. In his view, he argued that the high court's control of criminalization is aimed at preventing a right at its core from being affected and not at filling gaps in regulation.
The Public Prosecutor's Office maintains that the right to die with dignity is protected with the possibility of euthanasia, so decriminalizing assisted suicide falls within the competence of Congress, to extend protection to the freedom to decide to end life, which has already been protected by the Constitutional Court.
“The Public Prosecutor's Office does not deny that assisted suicide may become an alternative to guarantee the right to die with dignity, but the fact is that, under the principle of separation of powers, it must be authorized as a valid procedure for making the transition to early death by Congress, through a deliberate law approved by the representatives of the people and not by the Constitutional Court”, quoted the newspaper El Tiempo.
In euthanasia it is the medical personnel who induce the death of the patient, while in medically assisted suicide it is the same patient who, as the name implies, causes death to himself, accompanied by a professional.
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