The approval of the new Public Health Law and, within it, the section related to dignified death and euthanasia, has generated expectation among Cubans. No wonder: only nine countries legislate these practices. Of them, only one is in Latin America.
However, for the practical and widespread application of the “right to access a dignified death,” a law will be necessary to regulate matters related to the issue. Due to its complexity, controversial nature — even within the medical community — and novelty, a legal instrument of higher hierarchy than a regulation or even a decree law is required.
It is not possible to guess what characteristics that regulation will have or what its provisions will be. Instead, we can analyze the laws of countries in which this type of procedure has been approved and put into practice.
Euthanasia laws in the world
The Netherlands was the first to have a law regulating euthanasia and assisted suicide. It was approved in April 2002; however, since almost forty years before, acts of euthanasia and assisted suicide were not punishable by law, after a court suspended Dr. Geertruida Postma‘s one-week prison sentence for injecting morphine in a lethal dose to her mother, who had reiterated her wish to die. The court’s decision was based on the principle that “a person cannot be kept alive against his or her will.”
Subsequently, other legal processes helped shape the rest of the requirements that were later included in the law.
The Netherlands was followed by Belgium and Luxembourg, in May 2002 and 2009, respectively.
In 2014, Quebec passed a law, and, subsequently, by the decision of the Canadian Supreme Court, the practice of euthanasia was legalized in the country.
Colombia approved its law in 2015, after the Supreme Court twice urged Congress to create a regulation in that regard. In Australia, where the first national euthanasia law was passed in 1995 – it was only in force for a few months, from July 1, 1996, to March 25, 1997 – the states of Victoria and Western Australia passed local laws in 2017. and 2019, respectively.
New Zealand joined these countries in October 2020, via referendum. The last country to legalize euthanasia was Spain, which did so on July 25, 2021.
However, there are countries where the practice is severely punished and which, however, have legalized assisted suicide. This is the case of Switzerland, where euthanasia is prohibited, but since 1918 it has a “loophole” in its penal code that allows assistance in suicide as long as it is not for “selfish reasons.”
This allows anyone who wants to benefit from the procedure ― no special requirements have to be met ― and anyone ― not just health professionals ― can practice it. This places assisted suicide outside the medical field. In fact, in that country, some organizations are in charge of assisted suicide for both nationals and foreigners. There are no additional records or regulations since this form of death is conceived as “natural death.”
In the United States, since 1997, ten states have legalized assisted suicide. The Federal District of Columbia/Washington D.C. was the last to do so, in 2017. In the states that regulate the practice, it is reserved for “those over 18 years of age with a prognosis of life of less than 6 months and suffering that cannot be alleviated.” As can be seen, compared to Switzerland, in the United States the practice is much more restricted.
Finally, the German Penal Code, although it punishes “homicide on demand,” has exempted assisted suicide from punishment since 2020, based on a decision by the constitutional court.
Contrary to what may be assumed, not everyone who requests euthanasia ends up receiving it. A study published in Belgium nine years after the law was passed established that 39% of doctors surveyed had received requests for euthanasia. 48% of these had been carried out, 5% were denied, 10% were withdrawn and in 23% of cases, the patients died before it could be performed.
Differences and similarities between laws
There are similarities and differences between the laws that regulate euthanasia or assisted suicide in the aforementioned countries. Among the similarities are that the request for help in dying must have been properly considered. The patient’s condition must be incurable and without hope of improvement. Doctors have to inform the applicant about his/her health status and life expectancy; they must reach a shared conviction that there is no other reasonable option for the patient’s condition; they have to consult, at least, with another professional; and must assist the patient with the greatest possible care and dedication.
The first and most obvious difference between the regulations is which procedure they allow: euthanasia or assisted suicide (E/AS). The combination of both is only legal in six of the nine countries mentioned; while in three of them (Switzerland, the United States and Germany) only assisted suicide (AS) is allowed.
Another difference is who can request it. In the United States, Australia and New Zealand it must be an adult with a terminal illness and a life expectancy of no more than 6 to 8 months. In the rest of the countries, only the condition of “suffering that cannot be treated by other means” is required.
The issue of euthanasia in minors is particularly controversial. It is legal in the Netherlands, Belgium, Luxembourg and Colombia; while those laws that consider psychiatric patients eligible are only those of the Netherlands, Belgium, Luxembourg and Switzerland, when a psychiatrist certifies that the request is not the result of the underlying mental illness.
Spanish legislation, on the other hand, does not state that suffering from a mental illness can be considered an obstacle to accessing these procedures.
In general, all countries require that patients must make a request and then ratify it. The period stipulated between the first and last application varies. It is fifteen days in Spain ― except if the patient’s condition may deteriorate ―, thirty days in the Netherlands, and up to ninety days in Canada.
A final difference is supervision by the State. In the United States, Canada and the Netherlands, this control is carried out after the death of the applicant. In Spain and Colombia, control by a guarantee commission is carried out before and after death.
Spanish Law for euthanasia, a model to follow?
The Spanish law could be a model for Cuban legislators to follow when writing and approving the corresponding regulation.
This law takes many of the elements from the laws of the Netherlands, Belgium and Luxembourg, which were the first to approve regulations on the matter, and in some way collects their experience.
In addition, it incorporates state control during the process before and after the death of the applicant, something that is similar to the Colombian regulation. Finally, the Spanish law was the last to be approved and, therefore, it should be the most up-to-date.
This legal body must define euthanasia as “the deliberate act of ending a person’s life, produced by the express wish of the persons themselves and to avoid suffering.” Additionally, it specifies that it refers to active and direct practice, which excludes other forms of euthanasia.
According to Spanish law, the legalization and regulation of euthanasia in the country is based on “the compatibility of essential principles” included in the Constitution. These are respect for “life and physical and moral integrity,” on the one hand, and the right to “dignity, freedom or autonomy of will,” on the other.
The law includes two euthanasia behaviors: active euthanasia and assisted suicide. In the first, the health personnel carry out the action that ends the life of the patient, while in the second, the patient or someone close to him/her will do so.
Next, the law establishes in its general provisions the objective, the scope of application, and the definitions of rigor. It defines, in turn, what is meant by “informed consent,” “serious and incurable illness,” “responsible doctor and consultant,” “conscientious health objection,” among other terms.
In Chapter II, the Spanish law clarifies who has the right to request these procedures, basically, all people who meet a series of requirements, such as being Spanish or having lived in Spain for a year, being of legal age, etc.; it defines the requirements that applicants must meet and those that the application must meet; as well as what is related to the denial, which includes the steps that the responsible doctor must follow, the deadlines and the applicant’s right to sue.
Chapter III discusses the procedures and terms that must be met, the role of the responsible doctor, the consultant, the guarantee and evaluation commission; as well as the variants that may occur during the process, from execution request.
Basically, after the responsible doctor ― who is usually the family doctor ― receives the application, he must visit the patient to interview him/her, confirm if he/she meets the requirements and provide him/her with written information about palliative care and treatment options in his/her case. Then, the patient must make a second request and will again have an interview with the doctor, in which he will clarify his/her doubts.
If the decision is upheld, an informed consent will be signed; the doctor will notify the healthcare team and, if the patient wishes, a family member. If the patient desists at this stage, the doctor will inform the healthcare team.
Another essential requirement is the evaluation of a consulting doctor who will interview and examine the patient. Then he will make a report with the conclusions, which will form part of the medical history and will be reported to the patient.
If the conclusion is unfavorable for the applicant, he or she may appeal to the Guarantees and Evaluation Commission. If it is favorable, the responsible doctor will have to inform that commission so that it can verify the entire process before applying the procedure.
The issue of conscientious objection, contemplated in Article 16 of Spanish law, is on par. It means that doctors who do not agree to participate will not be obliged to do so. However, they must leave written evidence and be recorded in a regional registry.
What to expect from the Cuban law?
Since the content of the law is not yet known, we can look for clues in the draft of the new Cuban Public Health Law, which in its article 159.1 accepts “the right of people to access a dignified death, through exercise of end-of-life determinations, which may include limitation of therapeutic effort, continuous or palliative care, and valid procedures that end life.”
The above implies that we should expect more than a law on euthanasia: a comprehensive regulation, like the one that exists in Belgium, that in addition to E/AS, opens the doors to the limitation of therapeutic efforts and palliative care in cases in which the cure is impossible. These two practices, in my opinion, are more important than E/AS itself.
Article 159 of the draft Public Health Law states that the exercise of end-of-life determinations will be aimed at “people with chronic degenerative and irreversible diseases, with untreatable suffering, who are in an agonizing or terminal stage of life or who have suffered injuries that place them in this condition.”
Next, point 2 of the article makes it clear that the Ministry of Public Health will be the institutional body that organizes “the provision of these services in an appropriate health context and by the medical personnel designated and trained for this purpose.” This, together with the spirit of the law itself and the fact that in recent decades health practice has been exclusively in the hands of the State, leaves out any possibility that private individuals or institutions can exercise any of these practices.
When will the regulation be written and approved? It is not clear. Article 159, in section 5, establishes that the law will be drafted “when it is determined by the Ministry of Public Health that the conditions are created to carry out these actions in the country.”
Towards a culture of a good death
Even though the right to a dignified death and, within this, what concerns procedures that end life through consent is not, in my opinion, the most important thing about the new Public Health Law, it has generated a lot of expectations and places Cuba in a very small group of countries in which these practices are legal.
I think that although there is only one way to be born, there are many ways to die. Doing it with dignity should be a right.
Author
Carlos Alberto González
