Integral ecology

"Denying institutional conscientious objection is against the Constitution."

Federico de Montalvo, professor of Law at Comillas Icade and president of the Spanish Bioethics Committee, considers that denying conscientious objection to the euthanasia law exercised by institutions and communities "is unconstitutional". De Montalvo has analyzed the aforementioned law with Omnes.

Rafael Miner-July 11, 2021-Reading time: 14 minutes
Federico de Montalvo

The law regulating euthanasia, approved by the current parliamentary majority three months ago, came into force on June 25. And this week, the Ministry of Health and the autonomous communities have approved in the Interterritorial Council of the National Health System, the Euthanasia Best Practices Manual. It is so called because it is so named in the sixth additional provision of the legal text.

The law that gives free rein in Spain to the right to die and the provision of aid in dying has been launched. And Omnes spoke to Federico de Montalvo Jaaskelainen, Professor of Law at Comillas Icade and President of the Spanish Bioethics Committee, an advisory body to the government's Ministries of Health and Science. It should be noted that the interview with Professor Federico de Montalvo took place on July 6, one day before the meeting of the Interterritorial Council.

In the interview, the professor at Comillas Icade, who is also a member of the International Bioethics Committee of UNESCO, reviews numerous issues. For example, he points out that there is no right to die based on dignity, but there is a right not to suffer. That what would have been congruent would have been a law on the end of life, guaranteeing this right not to suffer, which derives from Article 15 of the Constitution, but that the most extreme alternative of the end of life has been chosen. That medicine does not respond to the criteria that society wants at any given moment, as happened in the national-socialist and communist regimes, but has to combine the interests of society and the values that it anthropologically and historically defends.

Or that he would never say that those who have drafted and approved this law have done so with the intention of killing anyone, but that they think that the solution to the end of life is euthanasia, while the professor believes that it is through the alternatives: palliative care or any form of sedation. He also defends institutional conscientious objection, and argues for it. Here is a half-hour conversation with Federico de Montalvo.

The Spanish Bioethics Committee, which you chair, formulated a report on the parliamentary processing of the regulation of euthanasia. Could you explain the genesis of the report?

̶ We prepared this report for two reasons. The law in Spain was passed as a proposal. This means that it is constitutional but quite unusual that the party that supports the government, the majority of the Parliament, presents the legal text, and the government does not. Ninety-something percent of the laws that are passed in Spain are bills, because the one who has the legislative initiative in the end is the government. Occasionally the opposition presents an initiative that convinces the government or the parliamentary majority, and it is processed, but it is very exceptional.

So, in Spain euthanasia was going to be dealt with by means of a bill, which meant that it could be approved without the participation of any consultative body, such as the General Council of the Judiciary, the Public Prosecutor's Council, the Council of State... And not even us, when all over Europe, when a law has been considered, or at least the debate on euthanasia has been considered, there is a report from the National Bioethics Committee. In Portugal there is a report, in Italy there is a report, in the United Kingdom there is a report, in France there is a report, in Sweden there is a report, in Austria there is a report, in Germany...

Throughout Europe, when a law has been considered, or at least the debate on euthanasia has been raised, there is a report from the National Bioethics Committee.

Federico de Montalvo

It would be unusual for this to be the first law to be passed without hearing the opinion of a public body, such as the Spanish Bioethics Committee, which is precisely what it is there for.

And then, we also did so because we thought that the fact that it was not obligatory to ask for reports did not prevent it from being done. That is to say, in the Parliament, the Commission that was going to process the law could have asked for our report. The idea was, man, if they are going to call some of us, as was my case (in fact, I was on a list as cited, although it was not admitted), it is better to go with a report. Not me going with my opinion, but this is the opinion of the Committee, which is in this report. That is why we made a report. Because it was unusual that the Committee did not pronounce itself.

Can you summarize two or three ideas from the report of the Spanish Bioethics Committee on the aforementioned regulation of euthanasia?

-I would summarize the most important ideas as follows. First. Conceptually, it is not possible to construct a right to die. It is a contradiction in itself. And in fact, the foundation on which the law is based is contradictory. Why? Because it is based on dignity, and then it is limited to certain persons -as if only the chronic and the terminal ones were dignified-. If I base a right to die on dignity, I have to recognize it for all individuals, because we are all dignified. Therefore, it was a contradiction in itself. That is why we said that there is no right to die based on dignity. Because it would mean that any citizen can ask the State to end his or her life. The State loses its essential function of guaranteeing life and becomes an executor.

Secondly, we also stated that there was an error. Because it was based on a presumed freedom, when in fact the person asking for euthanasia was not really asking to die. He was assuming death as the only way to end his suffering. What the person really wanted was the right not to suffer. And to resolve the right not to suffer in Spain, the full development of alternatives was still lacking.

That is to say, if the problem is not the right to die, as the law says, but the right not to suffer, why am I going to implement a very exceptional, very special alternative, when there are no really implemented alternatives that prevent suffering, which is the essential issue here. What we proposed in the report is that instead of a legal solution, which is what the law proposes, we believed that medical solutions should be explored.

And not medical solutions in the sense of terminality, but also in chronicity. The situation of chronic, non-terminal patients, where there is the possibility of palliative sedation. When a person suffers, what we have to do is to try to avoid suffering, little by little, to mitigate it, and if despite what we have done, that person continues to suffer, it is possible, and in fact St. John of God has included this in an interesting article, the possibility of sedation. Because I cannot allow someone to continue suffering and do nothing. What we are saying is that we have gone to an extreme alternative without exploring it, on the basis of a right that cannot be built, it is a contradiction in itself.

But they also offered some legal suggestions, in the form of legal exceptions.

-Then we suggested that, failing that, if we wanted to explore a legal solution, which we thought had to be the medical one first, there were other alternatives, such as the one in the United Kingdom, which is to continue advancing in what was included in our Penal Code before this law. Our Penal Code creates a very privileged type, with a very reduced penalty, in compassionate homicide. The Penal Code is extraordinarily compassionate with those who end the life of another for love or because they are suffering.

We proposed that, if it was desired, the experience initiated in the United Kingdom should be explored. That the right to die should not be established in general, but as a legal exception to a criminal or privileged type.

We also stated in the report that we were concerned about the implementation of this measure in the current context, when there has been what has taken place: a number of elderly people who have died as a result of the pandemic. This is a society that is going to face a very compromised situation, which is also moving towards aging. And in this context, we did not think that this law was opportune. That this law did not solve the problem, but could aggravate it. Our context is a very special context, and the law forgot it.

euthanasia

How did you make the report of the Spanish Bioethics Committee public?

̶ Whenever we make a report, we always send it to the Ministry, even before publishing it. We send it to three people: to the Ministry of Health, to the Ministry of Science (functionally we are based at Carlos III), and we send it to the director of Carlos III. We always do that. And then we publish it. There is always an act of courtesy.

In fact, Minister Illa [Salvador Illa, former Minister of Health] very kindly acknowledged it and thanked us for our work. He sent me an email as they often do. During the pandemic, for example, Minister Duque [now a former minister], congratulated us for a report, expressly; the minister recently congratulated us for a report on the problem of vaccines, the right to choose; etc.

Before drafting this report, I personally held a meeting with those responsible for Health, a routine meeting that we always had before the pandemic, in order to balance the agenda of the Committee with the interest of the Ministry. That is to say, we can work on things that we consider to be of interest, but it is also good to go hand in hand with the Ministry, and to be able to contribute, as we are doing now with vaccines.

And in that meeting, which was around the twentieth of February, I remember it because just two days later I was going to Rome, just before the pandemic, I told the Ministry that we were going to make a report on euthanasia, that they should know about it. It was not going to be about the law, because they had not asked us for it, but about euthanasia. The Ministry told me that they could not ask for it because it was not a matter for the government or the Ministry, but for the Parliament, for the parliamentary group. We can say that it was not a kind of stabbing, as they say, of a rogue. It was known, and we announced it on March 4.

Do you think that the report could be taken into account in some way, perhaps in the regulatory development of the law?

̶ In this case, no. There is, however, a development foreseen for three figures, which are somewhat novel, and which are justified in a certain way because this law not only recognizes a right -it does not recognize a freedom, but a right-, but also recognizes a benefit, to be paid by the Autonomous Communities. And three developments have been foreseen in the law itself. One is a training plan, within the framework of the continuous training of the Ministry of Health, which is being worked on; a guide for the assessment of disability, which is practically ready as well; and then a manual of good practices, which is in the hands of the Interterritorial Council. These are the three developments.

Why has a manual of good practices been drawn up? Because it was considered that the participation of the Interterritorial Council was very important, given that it is a service that corresponds to the Autonomous Communities. All three are quite complete.

You have stated that the opportunity to develop a law to regulate the end of life has been missed, in some way. Could you explain this?

̶ Yes, I think it is important. It is true that euthanasia, as I was saying before, is the extreme or very exceptional measure. Even for those who are in favor of it. What does not seem very congruent is to pass a law on that measure. The euthanasia law is not an end-of-life law, it is a euthanasia-only law. It does not address the end of life, it addresses the most extreme alternative at the end of life.

I consider that what is congruent, and I have shared this with doctors and other people, is perhaps to pass a law on the end of life, where this process is regulated, where a series of rights are guaranteed, this right not to suffer, which for me is a right that derives from article 15 of the Constitution, and if the majority had wanted, with their legitimacy, to have included a final chapter on extreme situations and euthanasia. But in a general framework of end-of-life regulation. Why do I say this?

This is not only a theoretical question, but also a practical one, in the following sense. A physician now, at the bedside, finds himself with a patient in a complex context in which he does not know whether he should propose euthanasia, or whether he should remain silent until the patient talks about it... It would be strange, because if it is a service, silence about services is something unusual, because if it is a service, the patient will have to be told about it. Secondly, if euthanasia is an extreme, last alternative, once other alternatives have been exhausted, it is one more alternative, or the main alternative... If we had regulated a law with all these possibilities, one could have come to understand that euthanasia is the last alternative in the face of the rest.

Now, as the system stands, one has two options. Either to think that it is the only alternative, because it is the only one that is regulated, or to think that it is just another alternative. To me, someone who asks for euthanasia because he is suffering, without having exhausted intermittent sedation, or other means or socioeconomic support..., to ask for it seems to me quite unusual. In some cases, one can come to admit that in an extreme situation, it may be necessary to help someone who is in extreme suffering. But if that person has not exhausted, has not tried, has not had palliative care or any sedation formula tried with him, how does he know that he really needs other alternatives to dying directly in a euthanasic act? As this law has been left, and only that has been regulated, not the rest of the alternatives, which are the most common, the most feasible, the doubt right now is: what is this?

Personally, I have heard physicians with a long professional practice say that very few people have asked them for euthanasia, and that what they were really asking for was not to suffer. As soon as the pain subsided and subsided, they stopped asking for euthanasia.

̶ That is what all palliativists say. Palliativists say that they have usually had to deal with minority cases, and that none of them have come through. It is true that palliativists work with terminally ill patients, and the problem of euthanasia is not terminality. I believe it is chronicity. The emblematic case is Ramón Sampedro, who was not terminally ill, but chronically ill. But for a chronically ill person to opt for euthanasia without having exhausted other alternatives that allow him to stay alive and with a certain quality of life, seems to me to be quite unusual.

If that law had been passed, a general law on the end of life, and at the end the majority would have demanded the incorporation of a chapter on euthanasia, understood as an exceptional measure in a context. Here we understand that it is the main measure, because it is the only one that has been regulated. We do not have an end-of-life law, but we have a law on euthanasia.

That a chronically ill person should opt for euthanasia without having exhausted other alternatives that allow him to stay alive and with a certain quality of life, seems to me quite unusual.

Federico de Montalvo

Medical specialists have commented that this law will introduce a major factor of distrust between patients and physicians. How do you see it? You are a jurist, and perhaps you would prefer to leave this question to the physicians.

̶ As a jurist, for us in the world of law the relationship of trust, for me, is the most relevant. The doctor-patient relationship is different from other relationships. Why is it different? I have defended it. I am one of those people who do not deny the principle of autonomy, but I believe that the principle of autonomy must be qualified in the context of the disease.

Because the doctor-patient relationship is based on something that normally generates vulnerability, which is the diagnosis of the patient. A person in his life has all the alternatives that life has to offer, and suddenly finds unexpectedly that he has some symptoms, some signs, and in a few days, after a diagnostic process that generates a great deal of uncertainty, because sometimes it takes days or months, he suddenly finds that his air has been cut off, his future has been cut off, as if a wall had been put in front of him. That is a diagnosis of a serious disease.

To consider that this person is fully autonomous is a fiction. That person has to make decisions freely, and in an informed manner, but he/she needs accompaniment and support. This is not a machine that tells me what to do. This is a person in front of me who has to try to empathize and help me in my decision making. That is not lack of realism, it is accompaniment.

The success of the treatment is based on this relationship of trust, because treatments work when the patient trusts them. For this reason, any strategy of concealment has been rejected for years because it generates mistrust. Now, in cancer, any medical oncologist proposes that for everything to work well, there must be trust.

If we see that the doctor-patient relationship is based on trust, when the patient may fear that the doctor will do something that does not correspond to the aims of medicine, i.e., end his or her life, this may affect trust. The patient may doubt that he will not be offered alternatives that are more expensive, because there are no resources, because there are cost-saving measures; that he will be offered a cheap alternative, a drug that lasts a few seconds, instead of drugs that last for days, which are more effective. For me, it is not that it is going to break it, but that it can break trust.

The relationship between medicine and society can be a topic of enormous interest.

-There is one very important thing to remember. Medicine does not respond to the criteria that society wants at any given moment. This happened in the National Socialist regime, where doctors were used to exterminate, and in the Communist regime, where dissidents were admitted to psychiatric hospitals, as if they were a person with a disorder. Medicine has to combine the interests of society and the values it anthropologically and historically defends. This was stated by a group of experts years ago in Spain, in a document.

Medicine has to combine and balance its foundational, historical purposes with the purposes of each moment. What is clear to me is that a physician is not a person whose purposes include killing. Killing is a consequence of a medical act. The physician assumes death as a consequence of what he carries out, never as an end. A surgeon never enters an operating room to kill a patient. It would be aberrant. He assumes death as a certain or uncertain possibility of an act.

When a doctor operates on a patient who is very difficult to get out of the operating room, he is operating on him because he believes that in that case there is a remote possibility that he will make it. But never to kill him. Therefore, we are altering the purpose of medicine, which affects the historical and social role of a physician, but, in addition, this role responds to the principle of trust. If I enter an operating room without knowing that the doctor's purpose is to kill me, I do not enter.

The problem with this is that, ideally, in the case of an intellectually very powerful, highly educated patient, whose life collapses after a diagnosis of Alzheimer's, and given that he/she is unable to work on his/her intellect, he/she asks for euthanasia (some cases we have seen outside Spain), this is a very specific case.

But when we get to the day-to-day reality in a public hospital, in which a vulnerable patient, with a worse socioeconomic condition, may think that he can be eliminated at his request, well, of course. And on top of that, without any regulation of alternatives, it worries me.

Although it is a very complicated process, what do you think is behind this law? What may be the intention?

-I would never say that those who drafted and passed this law did so with the intention of killing anyone. On the contrary. The problem here is that these people, legitimately, believe that the solution at the end of life is euthanasia. Others of us do not like people to suffer, but we believe that the solution at the end of life is through alternatives. This is the point of disagreement. The problem that these people have, and I sincerely believe that they do it with very good intentions, is that perhaps they have not considered the consequences that a measure like this can have, which is what generates that almost everybody talks about this, but not about the step of legislating. Because there is a lot of talk about this. But the step of legislating it, uff. How many countries are there? It is that the subject generates a lot of concern, the undesired consequences.

I think that those who drafted the law may not have taken into account the consequences that such a measure could have.

Federico de Montalvo

We have dragged on. It would be good to flash on the absence of a palliative care law in Spain, and of a specialty in universities.

̶ This is the problem we were discussing, that euthanasia would have to arise as an exceptional measure in a context of prevalent alternatives, and these alternatives are neither well regulated, nor well implemented, nor well used. There is a problem of regulation, implementation and use. There is still a lot of confusion about palliative sedation.

Some comments on the regulation of conscientious objection in the new law.

̶ Two ideas. First, that conscientious objection is not a right that is in the hands of the legislator. It is up to the legislator to decide how it is exercised. It is a fundamental right, and fundamental rights do not depend on the majority (the guarantee of the minority). And the second, which I have been working on, is that I do not understand why institutional objection is denied. If conscientious objection is a guarantee, an expression of religious freedom, and the Constitution itself recognizes religious freedom in the communities (it says so expressly), then, if conscientious objection is religious freedom, and religious freedom is not only of individuals, but of organizations, communities, why is institutional conscientious objection not allowed?

Is this refusal of institutional conscientious objection implied or expressly provided for?

-It is understood, because the law says that conscientious objection will be individual. The law does not expressly exclude it, but it is understood that, implicitly, by referring to the individual sphere, it excludes it. This is not right or wrong, but it is unconstitutional. Why do the Jewish people have the right to honor and the commercial companies have the right to honor, and for example a religious organization does not have the right to conscientious objection? It is religious freedom, and the Constitution talks about communities. It seems to me a contradiction.

Furthermore, while recognizing all the rights of legal persons (honor, privacy), and even criminal liability, are we now denying them conscientious objection, which is a guarantee of a right expressly recognized by Article 16 of the Constitution? I think there is no need for further arguments.

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