PORTUGAL 
Euthanasia Law: not quite arrived yet

Guest comment by Inês Fernandes Godinho* and André Dias Pereira**

In Portugal, the President has for the second time vetoed a euthanasia law passed by Parliament. The guest article retraces the law’s itinerary since the first parliamentary vote in May 2018.

The first parliamentary vote of a euthanasia law in Portugal took place on 29 May 2018. This parliamentary vote came in the wake of a broad discussion in Portuguese society, particularly since 2015, with the Movement “Direito a Morrer com Dignidade” (Right to Die with Dignity).The necessary majority for approval could not be reached, but there were signs of the issue returning to Parliament. The final vote was 110 for, 115 against and 3 abstentions; thus, the proposed law did not pass.

The second parliamentary vote of the euthanasia law was on 20 February 2020. The majority proposal passed in general by 128 votes for and 85 votes against and 9 abstentions. As it was a vote on a set of 5 proposals, and all of them were approved, the 5 proposals had to be unified in one single proposal, which would have again to be subject to parliamentary vote. The unified proposal was presented to Parliament on 29 January 2021, and was approved with 136 votes in favor, 78 votes against and 4 abstentions, becoming Decree n. 109/XIV.

The approved Decree was then submitted to the President of the Republic for promulgation. However, the President of the Republic, before promulgation, submitted the approved Decree n. 109/XIV to the Constitutional Court, due to doubts on its constitutional conformity.

Decree n. 109/XIV regulated the conditions under which medically assisted dying was not punishable and amended the Criminal Code (Código Penal, CP). In fact, under Portuguese criminal law, both homicide on demand (art. 134 CP) and aiding and abetting suicide (art. 135 CP [1]) are criminal offences, punished with a penalty of imprisonment of up to 3 years. Thus, Decree n. 109/XIV followed the “defense model”, i.e., while both offences in the Criminal Code were maintained, conditions for defense were established. This euthanasia law required the patient to be with an incurable and fatal illness or with a permanent injury of extreme gravity under scientific consensus and in a situation of intolerable suffering.

The main issue of the constitutional conformity was regarding the impreciseness of the requirements, particularly as to the severity of the injury. Regarding this point, the Constitutional Court issued a non-conformity decision, giving rise to the first presidential veto on 15 March 2021. Consequently, the parliamentarian proponents of Decree n. 109/XIV started to make the relevant amendments to the text, in the scope of the precision of the relevant definitions, in order to comply with requirements for constitutional conformity.

On 5 November 2021, the amended proposal was subject to parliamentary vote, passing by 138 votes in favor, 84 against and 5 abstentions, becoming Decree n. 199/XIV and again being sent to the President of the Republic for promulgation.

Decree n. 199/XIV – similarly to Decree n. 109/XIV –, besides defining the clinical situation of the patient, establishes that only Portuguese citizens or legal residents over 18 years of age may request medically assisted dying. Giving prevalence to the autonomy of the patient, the Decree defines several stages, from the request to its fulfillment, each of them only possible after the patient reaffirms his or her will to carry on. Moreover, the Decree grants the requiring person, if he or she so wishes, access to palliative care as an alternative and includes both possibilities of medically assisted dying, namely medical administration of lethal medication (voluntary euthanasia) or medically supervised self-administration of lethal medication (assisted suicide).

Nevertheless, due to the use of the concept of “serious or incurable illness” in Decree n. 199/XIV, together with the concept of “incurable and fatal illness”, the President of the Republic, having doubts on the scope of the Decree, issued, on 29 November 2021, a presidential veto, preventing the Decree to enter into force in Portugal.

Only after the parliamentary elections of 30 January 2022 can there be a renewed perspective for a euthanasia law to (soon) return to the Portuguese Parliament.

***

[1] If the suicide is attempted or consummated.

* Inês Fernandes Godinho, is a Professor of Criminal Law at Lusófona University, Porto (Portugal); she specializes, among other, in end-of-life legal issues and is a member of the National Ethics Committee for Life Sciences.

** André Dias Pereira is a Professor of Law and Director of the Centre for Biomedical Law at the University of Coimbra (Portugal); he is a Member of the Ethics Committee and of the Medical-Legal Council of the National Institute of Legal Medicine and Forensic Sciences and Vice-President of the National Ethics Committee for Life Sciences.

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