Once driven by the principle of favor vitae, Italian legislation began to shift its focus with the approval of Law 219 (2017) which sanctioned the right of a patient to refuse or suspend life support therapies and treatment, despite the mortal consequences, and to receive the assistance of a physician to that end. After ruling n°207 (2018), of the Constitutional Court, awaited is the publication of the relative sentence that, under certain circumstances, curtails the penal liability of a third party assisting another person’s suicide, ex article 580 of the Penal Code of Law.
Two recent books published by jurists help us understand how it proved it possible to reach this point, and what changes are implicit in these new rules of law.
The first of these books was edited by Mauro Ronco, professor emeritus of Penal Law at the University of Padua, and president of the Livatino Center of Studies, and is entitled The ‘Right’ to Kill: towards the death of Law. Published this year by Giappichelli Publishers, it contains a series of essays written by jurists and bioethicists, the longest of which is entitled “The Supportive Commitment for Life” and was wtitten by Prof. Ronco himself.
The essay in question retraces the cultural premises that inspired the thinking of both lawmakers and courts in the transition from the non touchability availability of human life to the broad waiver regarding the principle of ‘do not kill’. Moreover, the essay is based on historical facts, with an extensive bibliography drawing from works in Italian, French, English and German.
In the first part, (“The battle against the ill-suited”), the author underscores “the eruption of revolutionary Darwinism in the social sciences, and the aggressive imposition of a biological science that became policy doctrine and was understood as a way to radically change the human condition according to a completely atheistic and materialistic dimension”, and this in order to foster “the creation of a better human race” through “the artificial selection of those best suited to the progress of society”. Hence, the movement of social eugenics and racial cleansing which led first of all to the forced sterilization of “ill-suited” subjects (e.g. retards and mentally handicapped persons) in Germany, Sweden and the United States, and then to voluntary killing and assisted suicide which found fertile soil for growth and development in German legislation during the period of national socialism.
While during this period of time the selective criterion of the “quality of life” was initially anchored in principles and aims in the areas of public law and order, public healthcare, public spending thresholds, and racial utopias, in the second and third parts of this essay the author explores the fine tuning of said concept in its radical and individualistic version that has been moving ahead ever since the 1960’s. In the new context, euthanasia and assisted suicide are justified especially in the light of the new dogma of the self-determination of each person, who is deemed to be the sole holder of the right to bring his life to an end, and can count on the assistance of third parties to that end.
Prof. Ronco narrates not only the comparative experiences regarding the “right to death” (emblematic are the cases of the Netherlands and Belgium), but also underscores the process of linguistic and conceptual falsification deployed in order ‘sweeten the pill’ of the new legislative developments. Just consider, for example, the misunderstandings caused among the possible collateral effects of palliative therapies and practices of commissive euthanasia; or between prohibiting relentless or futile medical care, and foregoing suitable and well proportioned therapies.
The author also remarks how the criterion of the quality of life, due to its selfsame nature, slides in the direction of euthanasia-type solutions, even in the absence of a patient’s consent, insofar as they are considered to be in the nominal best interest of the patient in question.
Prof. Ronco therefore concludes that the sole bulwark standing in the way of the death of contemporary law can only be the renewed affirmation of the principle of the ‘non touchability’ of human life, which is based not on the quality of life, but on its irrepressible dignity.
The author of the second book is Giacomo Rocchi, magistrate and counselor of the Court of Cassation, and it is entitled: License to Kill – the legalization of euthanasia in Italy (Edizioni Studio Domenicano, 2019). The book is quite detailed in technical terms, and yet is reader-friendly.
Mr. Rocchi first of all revisits the normative framework regarding the defense of life as contemplated by the Italian code of penal law that penalizes crimes committed against life: murder in particular, the killing of a consenting adult, instigation to suicide, and assisted suicide. Therefore, excluded by virtue of these legal dispositions was any form of euthanasia, even when considered “compassionate”.
In the mind of the author, needed in order to obtain legal standing was, on one hand, a cultural endeavor aimed at eroding the integrity of the protection of human life in each of its stages (like in the battle that led to the legitimization of abortion and artificial insemination); on the other hand, the instrumental use of the practice of “informed consent” in order to derive there from a right to refuse therapies, including life saving ones (rooted, according to its supporters, in the second subparagraph of articles 32 of the Italian Constitution).
Mr. Rocchi then delves into a detailed analysis of Law 219 of 2017, demonstrating its obvious pro-euthanasia substance. This is a result with which I concur. This fact becomes readily evident as of the very first article, which, among other things, consecrates the right to “self-determination” on the part of the person in question. Article 2 stipulates the compulsory nature of medical practices which, upon the patient’s request, cause his death or cooperate in attaining said end. Article 3 even makes it possible to proceed to the suppression of weak persons (minors, disabled persons, persons subject to judicially appointed guardianship) in the absence of their will, or even against their will. This is where self-determination becomes hetero-determination – through the choice to refuse or suspend even life-saving practices—exercised by parents, tutors, and judicially appointed guardians, with a judge coming into the picture only in the case of opposition lodged by the case physician. Article 4 therefore renders euthanasia possible for all even in the absence of ‘real time’ consent if said consent was expressed beforehand in a binding written document (e.g. advance healthcare directive).
The author points out that distorted by said law is not only the right to life of the human person, but also the role of the physician. Instead of being a healthcare professional acting according to conscience and science for the good of the patient, he becomes a technician carrying out the latter’s orders. The crowning touch on the law is the absence of the right to conscientious objection, which is not explicitly mentioned, nor is it possible to deduce it implicitly from the layout of the law itself.
The book ends with an overview of the most recent and well known cases of euthanasia, from Piergiorgio Welby to DJ Fabo: much like a via crucis of the right to life, with no end of that in sight.
President of the Union of Catholic Jurists of Padova, “Blessed Contardo Ferrini”