This paper explores the significance of a landmark Italian judgement regarding end-of-life advance directives, emphasizing the legal and political context in which the decision was made. The analysis particularly focuses on the political majority's attempt to overturn the outcome of the courts’ proceedings - thereby challenging the country's institutional order and jeopardizing constitutional rights.
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References
1.
Eluana reported her desires in discussions with her teachers, Catholic nuns and classmates, particularly after visiting a friend of hers in a PVS because of a car accident
The most notable example is Law No. 40/2004 on Assisted Reproduction, see ‘Analysis of the judgement’ below
4.
Italian Constitution, Article 138. The Constitutional Court identified some ‘supreme constitutional principles’, mostly pertaining to ‘fundamental’ individual rights, that cannot be modified even through an amendment procedure: Judgements 1146/1988 and 366/1991 (www.cortecostituzionale.it)
5.
This is evident in the Constitution's initial part titled ‘Fundamental Principles’, Articles 1-12, particularly Article 2 which proclaims that ‘the Republic recognizes and guarantees the inviolable rights of the person, as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled’. In order to achieve this goal, the Constitution provides all individuals with civil, political and social rights, identified in Part I - Articles 13-54
6.
See the landmark decision no. 27/1975 on abortion: www.cortecostituzionale.it (last checked 10 May 2010)
7.
For example, the statute regulating abortion, No. 194/1978, enacted in accordance with the principles set forth by the Constitutional Court, may not be substantially modified by the legislator in a restrictive or liberal way, many of its provisions being ‘constitutionally necessary’: Constitutional Court, Decision 39/1997 (www.cortecostituzionale.it)
Scholars disagree about the level of self-harm that can be tolerated in the legal system. See RomboliR.Commento all’ articolo 5 Cod. Civ. In: GalganoF ed. Articolo 1-10 Cod. Civ. -Persone Fisiche, Commentario del Codice Civile Scialoja-Branca.Bologna: Zanichelli, 1988:225–43
10.
It should be noted that the Italian legal system also has a generalized ‘duty to rescue’, violation of which is a criminal offence: Criminal Code Article 593
11.
Tribunale di Lecco, Decreto 20/07/2002; Corte d'Appello di Milano, Decreto of 10/12/2002; Corte di Cassazione (Supreme Court of Cassation), Ordinanza 20/04/2005, No. 8291
12.
The Supreme Court of Cassation is the Italian last instance court for civil and criminal cases. It decides only on points of law, and there is a constitutional right to lodge an appeal before it (Constitution, Article 111.7). Its judgements state the legal principle to be applied in the instant case. If the acquisition of further evidence is deemed necessary to come to a decision, the case is referred back to the Court of Appeal which shall apply the Supreme Court's principle to its findings; otherwise, the Supreme Court's judgement is final
13.
Cass., 17/10/2007, No. 21748. Famiglia, persone e successioni 2008; June: 508-19
14.
Ibid, at para 6.1: The first instance Court had found that the applicant, in his capacity as guardian, had no cause of action because of the ‘strictly personal’ nature of the decision to refuse treatment. The Court of Appeal instead maintained that a guardian may ask for the suspension of treatment, but the evidence regarding Eluana's presumed will was insufficient
15.
Ibid 14
16.
Ibid
17.
Ibid
18.
Ibid
19.
Ibid
20.
Ibid
21.
Ibid
22.
This provision states that doctors must respect the terminal patient's choice to refuse treatment after informing him of the death risk
23.
521 US 793 (1997). The court emphasised that the right to refuse treatment does not stem from a right to hasten death (which does not exist) but from the right to bodily integrity
24.
European Court of Human Rights, Application 2346/02, Judgment of 29/04/2002
25.
Cass., 17/10/2007, No. 21748. See n. 13 at para. 6.1. The Court recalled that the ECtHR denied the existence of a ‘right to die’, but also that of a ‘duty to health’
26.
Particularly, Oviedo Convention Article 6, which provides that consent to treat incompetent patients must be given by their legal representatives but the former must, as far as possible, take part in the authorisation procedure; and the Italian D. Lgs. 211/2003 (implementing Directive 2001/20/EC), which refers to the incompetent's presumed will in the provision of valid consent
27.
Cass., 17/10/2007, No. 21748. See n 13 at para. 7.4
28.
Ibid
29.
355 A.2d 647
30.
497 U.S. 261 (1990)
31.
Order of 17 March 2003 (BGH XII ZB 2/03)
32.
[1993] 1 All ER 821 HL
33.
Cass., 17/10/2007, No. 21748. See no. 13 at paras 7.4 and 7.6
While the CEI (Italian Episcopal Conference) criticized the decision, some members of the Church dissented from the official view: see Emeritus Archibishop Giuseppe Casale. Eluana ci parla ancora. Micromega2009; 2:135–6
Article 77 of the Constitution provides that in ‘extraordinary cases of necessity and urgency’ the Cabinet (led by the Prime Minister) may enact a Decreto-Legge, i.e. an Act valid for 60 days after its approval and whose effects lapse retroactively if Parliament does not vote in favour of it within that period. The Act requires the assent of the President of the Italian Republic to enter into force. Assent may be refused if there are doubts about the Act's constitutionality
This is the terminology used in BeyleveldD, BrownswordR.Human Dignity in Bioethics and Biolaw.Oxford: Oxford University Press, 2001
41.
They are, in fact, based on the substantial equality clause (Constitution, Article 3.2) and are thus aimed at providing equal opportunities to all, including disadvantaged individuals, and not at asserting the State's authority
Specifically, limited to three the number of embryos that could be produced in each IVF cycle, and required all such embryos to be transferred to the woman. The statute also seemed not to allow PGD aimed at avoiding the implantation of embryos carrying genetic diseases, although the wording was confusing on this point. For further details see FentonRCatholic Doctrine versus women's rights: the new Italian law on assisted reproduction. Medical Law Review2006; 3:73–106
Milella L E il Cavaliere attacca le toghe: test di sanità mentale per PM. La Repubblica 9 April 2008:6
48.
Tribunale di Roma, Ordinanza 16/12/2006, Nuova Giurisprudenza Civile Commentata 2007:844-50
49.
Despite the application's initial rejection, a doctor satisfied the applicant's request and faced murder charges. These were dropped after the court recognized that he had simply enforced the patient's constitutional right to refuse treatment (Tribunale di Roma, Ordinanza 23/07/2007 (www.radioradicale.it/files/sentenza.pdf)
A sign of indifference about bioethical issues was the low turnout at the 2005 referendum aiming at abolishing the assisted reproduction statute (25.9%), which caused the referendum's failure as the required 50% quorum was not reached
