Colombia’s Constitutional Court affirms the right of boys, girls and adolescents to die through euthanasia
In August 2017, the Constitutional Court of Colombia issued Judgment T-544, in which it reviews a case of “tutela”1 filed by the parents of a thirteen-year-old boy, who were petitioning his right to die with dignity through euthanasia. The Court decided that boys, girls and adolescents (NNA) should also be allowed to die with dignity, even if this fundamental right is still not regulated in our country. Although that right does not state a specific age requirement, the Court affirms that regulation must consider how to interpret NNA’s rights; the need to seek patients’ informed consent when they have the cognitive and psychosocial capacity to consent for themselves, as assessed by professionals; and substitute consent. In any case, parents or legal guardians play a central role in the process. The minor, as is the case for adults, has to have a terminal illness, and to be in a situation of constant and unbearable suffering that cannot be eased; the request has to be made to the treating MD and an Ethics Committee convened by the health insurance provider has to approve the petition.
The young boy in this case suffered from severe cerebral palsy, an uncontrollable epilepsy, severe scoliosis, bilateral hip dysplasia, all of which produced physical impairment, frequent respiratory crises, and pain. Additionally, severe gastroesophageal reflux disease impaired proper feeding. He suffered also from intellectual disability, could not talk and would communicate only through noises and gestures, but could not laugh or smile. His parents had asked their health insurance provider, Salud EPS, to convene the Ethics Committee necessary to study the boy’s right to die through euthanasia, but the organization kept silent. They filed the tutela to safeguard their right of petition, the boy’s right to health care and other rights that could have been violated because of the health provider’s constant obstacles and omissions in their son’s care.
The Court reviewed the case in depth after the death of the young adolescent: It considered that the fundamental rights invoked had been violated. Moreover, it deemed that it is important to reveal the structural problems that hinder the safeguard of fundamental rights for the population at large.
The Court rules that NNA have the right to die with dignity. In its jurisprudence, the Court has reiterated that the fundamental right to a life with dignity implies the right to die with dignity. It has not only underlined the strong relationship between death with dignity and human dignity in general, but also the principle of human self-determination, and an understanding of human nature as something greater than mere vital subsistence. In Colombia, boys, girls and adolescents’ rights are defined by the principle of the Best Interest of the Child, that is, their rights are above the rights of others. Being this the case, the right to die with dignity -which has been recognized in Colombian jurisprudence- cannot be denied to them. If it were denied, it could lead to children being treated cruelly and in inhuman ways, affecting their human dignity.
Second, the Court remembers that although age brings about differences and specificities related to informed consent and manifestation of willingness, it does not mean that the Court should deny NNA the right to a dignified death. The Court affirms that the fact that prior judgments have all being based on petitions made by adults has only been a contingency, and cannot lead to age limiting this fundamental right.
Third, the Court affirms that an absence of regulation cannot be invoked to deny an individual their fundamental rights. It recognizes that this absence constitutes a real obstacle. In the past, the Court ordered the Ministry of Health to regulate the correct implementation of euthanasia, and now it mandates the Ministry to create a regulation that considers the specificities in the case of NNA. It also orders the Ministry to oversee health service providers in the implementation of mechanisms similar to those in place for adults so they can comply with the new regulation. Last but not least, the Court orders the Ministry to introduce, in the following year, a bill in Congress so the fundamental right to die of adults as well as that of NNA can become a law. This bill has to comply with conditions and criteria already established in the Court’s jurisprudence.
Finally, the Court has asked Congress to regulate, in less than two years, the right to die with dignity, so as to clearly determine all the assumptions under which it must be guaranteed.
(1) “Tutela” is a mechanism provided for in Article 86 of the current Political Constitution of Colombia; it seeks to protect the fundamental constitutional rights of individuals “when any of them are violated or threatened by the action or omission of any public authority”.