Who decides on the death
of Stefano Rodota
Who rules the living, those who decide to die? These ancient questions have returned with bullying in the public discussion after the ruling by which the Supreme Court has indicated the solution for the case of Eluana, the girl who is fifteen years in state permanent vegetative for years and for which parents seek the termination of the treatments that keep it alive. None an individual decision. Two recent measures of the courts of Cagliari and Roma have faced and solved problems related to preimplantation embryo diagnosis and treatment of rejection (notation: all three decisions have played a key role of the magistrate). The ruling of the Supreme Court, in particular, is exemplary: the ability to read the law for what it is, and not what you would like it or not, for the rigor of the argument, for taking personal responsibility the judge who, when faced with difficult issues, not escapes, refuge in artificial constructions and thus denying the justice that citizens demand.
born at this point, a doubt. How many of the improvised commentators have actually read that sentence? How many have the tools necessary to understand how a legal system today? The question is more than legitimate in the face of reactions as "unacceptable substitute judicial ',' urgent need to fill a legal vacuum," "violation of the prerogatives of Parliament," to the grotesque idea of \u200b\u200braising before the Constitutional Court a jurisdictional dispute between Parliament and the judiciary.
try to reason. If using the phrase "judicial substitution", which have very worn, it means that the judiciary is able to respond more rapidly than laws, they say one thing correct, but that now belongs to the physiology of the system and not only di quello italiano. Un caso assolutamente identico a quello di Eluana Englaro, la notissima vicenda di Terry Schiavo, venne risolto negli Stati Uniti proprio dai giudici che respinsero seccamente le intromissioni del Parlamento, ribadendo un orientamento assunto dalla Corte Suprema fin dal 1990. Nella stessa direzione si muovono da anni la Cassazione tedesca, l'House of Lords, la Corte europea dei diritti dell'uomo. Analizzando le decisioni di quest'ultima, anzi, si è più volte messo in evidenza che ormai i temi del vivere e del morire trovano sempre più spesso lì indicazioni di principio e soluzioni. Perché questo accada, ha molte spiegazioni. I tempi lenti di tutti i Parlamenti; la difficoltà rigid rules to close in the vicissitudes of life that, as Montaigne reminds us, is "a movement uneven, irregular, multiform; the proper task of the courts to adapt the broad principles to concrete situations.
is what is happening in Italy. But not because there is a legal vacuum. The judges, in fact, have anchored their arguments to a very large number of rules: Articles 2.13 and 32 of the Constitution, the Convention on Human Rights and Biomedicine of the Council of Europe, the Charter of Fundamental Rights ; the National Health Service Act of 1978; gli articoli del Codice di deontologia medica. Hanno richiamato sentenze della Corte costituzionale e numerosi precedenti della stessa Cassazione. Un «pieno» di norme che smentisce la tesi del vuoto normativo e dell'indebita supplenza.
A picture so full of principles and rules has been used to arrive at a decision in which it is clear the distinction between the refusal of care at issue, and different assumptions of euthanasia, assisted suicide The starting point is represented by the now indisputable principle of informed consent, from which follows the "power of the person of their own body" (as the Constitutional Court in 1990) and then the illegality of any operation beyond his control. A principle that is not the result of an abandonment of values, of surrendering to the logic of individualism. Born, on the contrary, the desire to affirm the value of the person and his dignity, and finds its origins in the Nuremberg Charter of 1946, written after the trial of Nazi doctors who had violated human dignity and with their experiments.
The person ended thus to be the 'object' of the power of the therapist or anyone else, saw and recognized the full autonomy, so that it was said that it was born a new "moral subject." Hence the imperative indication art. 32 of the Constitution, which prohibits any treatment that violates "the observation of the human person." Here rests the right to refuse any care, that the Supreme Court had already recognized in the past, so that his final decision can be considered as conducting a guideline already established. And the doctor's duty to take care of converting to that "of rispettare la volontà del paziente contraria alla cura», escludendo quindi ogni sua responsabilità.
By adapting this principle to the condition of those in permanent vegetative state, the Supreme Court did not refer to the policy of aggressive therapy, but showed great balance with the two conditions that justify the interruption Treatment of survival: a rigorous investigation of the irreversibility of the permanent vegetative state, the possibility of determining the intention of the person on the basis of his explicit statements or "through their beliefs, their way of life and reference values." The criticisms of these two criteria are not convincing. There is no lack of objective scientific criteria for investigation of the actual condition of the dying. And establish the person's intention can be difficult process that requires great sensitivity, but can be based on a variety of factors capable of reaching unequivocal conclusions.
Two other points, equally important, were defined by the Supreme Court. The first concerns the characterization of nutrition and hydration as a forced 'treatment', which may be waived. Conclusion which is contradicted areas linked to the Catholic Church, but widely accepted by the scientific community and that is the basis of decisions of courts of other countries. The second is "the application of the measures suggested by science and medical practice in the interest of the patient", so the legality of sedation, thus solving a question born with the Welby case and removing any foundation to the subject of terrorism in agony which would have condemned the dying.
The framework defined by the Supreme Court, therefore, is rigorous, firmly founded on the principles and standards, shows that even in the absence of a specific law, the legal system provides all the tools needed to tackle the difficult issues of end of life. Thanks to this ruling, the case for a policy may be addressed in a more clear.
The Supreme Court and other courts have not "created" rules. Extracted from the system all the elements that require the recognition of personal autonomy, and this involves a series of consequences. The refusal of care is a principle that can not be challenged, and today should be respected the will of those who, in the event of a permanent vegetative state, said to refuse the continuation of any treatment. A law, therefore, must have as its objective the consolidation of this situation and also to avoid any controversial case brings with it the need to go to court. This is done by assigning importance to the formal living will, without turning it into a bureaucratic bottlenecks, and by clarifying the limits of responsibility of the physician.
would be unacceptable, however, an intervention the legislature turned nell'improponibile rematch of a policy that purports to restrict a freedom firmly founded on the Constitution. It is a real risk. Too many political exploitation for years accompanying the themes of life. Too many regressions cultural rape the public debate. But after the reasons given judges, there is to be hoped that Parliament does not become a place of restoration unconstitutional.
Article taken from the Republic of 25 October 2007
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