The freedom to dispose of one’s life cannot be absolute

The story of “Mario” (invented name), the paraplegic whose right to die after ten years of irreversible suffering by the ethics committee of the Marche Health Authority, broke into the political scene with effects that fall on both the referendum that the radicals have promoted to legally allow euthanasia (and which has easily reached the goal of the necessary signatures as opposed to those on justice) and on the sensitive issue of the possible introduction of a generalized vaccination obligation.

They are apparently heterogeneous and contrasting themes, in reality they have one trait in common: they concern fundamental rights such as self-determination, health, personal freedom.

Let’s try to clarify the various aspects: Mario’s dramatic story is an effect of the famous sentence of the Constitutional Court 292/19, with which the Council answered the question posed by the Court of Assizes of Milan in the trial against the radical Marco Cappato who had accompanied in Switzerland DJ Fabo died, a story that had shaken the country and that determined the “judge of the laws” to intervene in the first person against the inertia of the legislator paralyzed by party vetoes.

It was a question of modifying, or rather of “manipulating”, art. 580 of the penal code which still punishes two profoundly different behaviors as “instigation to suicide” such as those of someone who voluntarily pushes others to suicide and those who limit themselves to facilitating and making possible a free determination to kill themselves.

The story of DJ Fabo made it possible to intervene in a situation of irreversible human suffering, in the wake of the Law of 22 December 2017 number 219 (Rules on informed consent and advance treatment provisions), also approved following two judgments of the Gup of Rome and of the Civil Cassation on the Welby and Englaro cases, as well as another ruling of the same Consultation on the subject of informed consent.

Law 219 of 2017 recognizes, to every person capable of acting, the right to refuse or interrupt any health treatment, even if necessary for their survival, expressly including in the relevant notion also “artificial hydration and nutrition treatments”.

The Supreme Court held that he should no longer be punished who, in the manner provided for by law 219 of 2017 on informed consent and refusal of medical treatment, “facilitates the execution of the suicide intention, autonomously and freely formed, of a person kept alive by life-sustaining treatments and suffering from an irreversible pathology, a source of physical or psychological suffering that she deems intolerable, but fully capable of making free and conscious decisions, provided that such conditions and methods of execution have been verified by a public structure of the national health service, after consulting the committee territorially competent ethics “.

The Court recalls the fundamental articles 2, 13 and 32 (inviolable rights, personal freedom and health), but places very specific limits on man’s self-determination with respect to the governance of his own life: he has the right to a dignified life but not to the freedom to let oneself die if not in the conditions of irreversible suffering that the Council indicates.
The judges clearly write that
“From article 2 of the Constitution – not unlike article 2 of the European Court of Human Rights – derives the duty of the State to protect the life of every individual: not the – diametrically opposite – to recognize the individual the possibility of obtaining aid to die from the state or third parties “.

Following this ruling, article 580 of the criminal code has changed and therefore facilitating the death of those who are irreversibly ill is no longer a crime if this condition is ascertained by a third and public health organization (a medical college or an ethics commission such as in the case of Mario).

The lawyers of Mario and of the Luca Coscioni Association, the same in the case of DJ Fabo, appealed to the judge in front of a first refusal of the ASL of Ancona, with an emergency measure with which the court of the capital recognized the right that the health organization (the ASL through its ethical body) assesses the existence of the health conditions legitimizing the acceptance of the request.

However, the 2019 ruling of the Consulta did not satisfy the supporters of a more radical choice of total freedom to dispose of their own life and death without limits, the same ones who promoted a referendum initiative aimed at amending article 579 of the code criminal law that prohibits the murder of consenting persons who do not meet the conditions of illness indicated by the Law on informed consent and by the sentence on DJ Fabo.

The intervention requested by the promoters of the referendum would make the murder of those who only allow it punishable “if the fact is committed against a vulnerable subject (minor, mentally ill, in a condition of mental deficiency) or whose consent has been extorted or stolen “.

It would therefore be a question of a green light to euthanasia on the basis of the sole request of the interested party, a dramatic theme whose different needs collide: the drama of those who still suffer from the pain of living, of the dark evil often painful as the illness of the body, and at the same time the duty of the State to protect the weakest subjects from the oppression and selfishness of those who can think of the suffering of others as a useless annoyance to get rid of.

It is useless to go around it: a person who is weak from a psychic point of view, for example, or elderly and suffering, can be considered truly free in such a choice, not conditioned? Or, precisely for this reason, should it receive more stringent protection?

Precisely this profile, which conceals the present need for total selfish freedom in today’s society, leads to a relapse on an incandescent matter such as the vaccination obligation that today is aired as an extreme and increasingly looming remedy to the threat of a new wave of pandemic.

On closer inspection, the issues are the same: those who claim total freedom to dispose of their own and others’ lives are not unlike those who claim the right to refuse a vaccine affecting the health of others.

In the end, it is the same egocentric and absolutist vision of life with a common trait that the former president of the Constitutional Court, Giovanni Maria Flick, captured well in an interview in the press with Grazia Longo: indifference to a duty of solidarity towards the most weak that the Constitution itself provides and protects in Article 2 and which, according to the jurist, also legitimizes the extreme choice of vaccination obligations.

Indifference is the real wall that risks killing everyone’s freedom, and must be defended: even against selfishness mistaken for a legitimate claim of a false democracy.

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