David Enrique Garzón Garcia is an LL.M. candidate at the University of California, Berkeley, School of Law and a guest contributor to Travaux.
The history of the fundamental right to die with dignity (RDD) in Colombia has not been peaceful. In addition to the inertia of Congress to pass legislation to regulate this right, there have been heated social, media, religious, and constitutional debates, even within the Constitutional Court (CC) itself. In 1997, the CC held in Ruling C-239 that:
“The fundamental right to live in a dignified manner implies the right to die with dignity...condemning a person to prolong his existence for a short time, when he does not wish it and suffers deep afflictions, is equivalent...to an annulment of his dignity and autonomy as a moral subject.”
Since then, the CC has analyzed aspects of the RDD several times and has developed its meaning. In 2014, the CC, in its Ruling T-970/14, determined that, while Congress regulated the matter, the Ministry of Health and Social Protection (MHSP) should establish a procedure to carry out patients’ decisions on euthanasia. The MHSP then issued Resolution 1216 of 2015, in which it introduced the ordained procedure and limited it to adults. It is worth stating that neither Ruling T-970/14 nor C-239/97 provided this limitation.
In this context, in 2017 the CC reviewed a tutela file on the matter. In Colombia, the tutela is a constitutional action that enables any person who considers that their fundamental rights are being violated or threatened to request immediate judicial protection. The tutela action is the procedural vehicle to activate concrete judicial review. The Colombian judicial review model entrusts the CC with discretionary review of tutela rulings issued by judges throughout the country to unify jurisprudential standards.
In this tutela file, the plaintiffs were the parents of a 13-year-old adolescent who suffered from severe illnesses and had physical and intellectual disabilities. They requested the application of euthanasia. At the time the ruling was pronounced, the child had already died. However, the CC decided to recognize that children were also holders of the RDD. The ruling provided two criteria for the viability of the procedure, which were: (i) the condition of terminal illness, understood as a terminal illness that produces intense pain and suffering and the incompatibility of these with dignity, and (ii) the free, informed, and unequivocal consent of the patient, with the exceptional possibility of substitute consent due to the factual impossibility of direct manifestation, caused by the disease or by the cognitive development of the child. In this regard, it ordered the MHSP to ensure hospitals had committees to study requests for the euthanasia of children.
Resolution 825/18 of the MHSP, issued in compliance with this ruling, established the procedure to give effect to the children’s RDD through euthanasia. In broad terms, this Resolution includes a differential approach concerning age and cognitive development. Throughout the Resolution, it is evident the MHSP’s primary purpose is corroborating, through different steps and differential mechanisms for each child's situation, that the decision is (i) voluntary, free, informed, and unequivocal and (ii) in concurrence with the child’s ability to communicate the decision, to understand, to reason, and to make judgments.
However, Article 3 of Resolution 825/18 excluded children with intellectual disabilities (CID). It is relevant to note that the CC’s decision does not order, suggest, or contemplate this exclusion. That is to say, the MHSP took this decision without normative support and contrary to the constitutional framework and the rights of CID. Additionally, the preamble of the resolution does not provide any explanation of this exclusion. In other words, the remedy adopted by the CC and developed by the MHSP to avoid further violations of the right of children to die with dignity is insufficient for CID under the current procedure.
As a result, the exclusion generates a discriminatory practice against CID and violates the equal protection and non-discrimination clause of the Colombian Constitution. The equal protection and non-discrimination clause is contained in Article 13 of the Colombian Constitution of 1991 and has different dimensions. From a deontic perspective, the following elements arise from the clause. First, it establishes the principle of equal treatment and protection of individuals by the authorities and in the enjoyment and exercise of rights, freedoms, and opportunities. Second, it prohibits discrimination based on sex, race, national or family origin, language, religion, or political or philosophical opinion. In different rulings, the Constitutional Court has stated that the specific enumeration of those categories is not to be understood as exhaustive, but enunciation. In that sense, disabilities are to be understood as one of the suspect categories covered by the clause. Third, it explicitly makes a preference for a material sense of equality above a formal conception. Fourth, it contains a mandate for adopting affirmative actions in favor of discriminated or marginalized groups. Fifth, it establishes the State’s duty of special protection towards individuals in a situation of manifest weakness and orders the punishment of abuses or mistreatment committed against these individuals.
Concerning the second element, this provision must be understood following other human rights international instruments. Within the Colombian constitutional model, international human rights covenants signed by Colombia have constitutional weight and extend the anti-discrimination protection beyond the strict text of the Constitution. For instance, Article 26 of the International Covenant on Civil and Political Rights, of which Colombia is a party, prohibits all discrimination, including that derived from any social condition. In accordance, the CC in Ruling T-297 of 2013, stated:
“Such criteria to which the constitutional norm alludes (Art. 13 C.P.), are not exhaustive categories, in such a way that any arbitrary differentiation for any reason or social condition is generally prohibited.”
Consequently, the exclusion breaks the principle of equal treatment and protection and discriminates against CIDs on the ground of a suspect category. It disregards, as well, international treaties. Specifically, Articles 3, 4, 5, 6, and 25 of the Convention on the Rights of Persons with Disabilities (CRPD) proscribe discrimination on the grounds of disability.
The social model of disability animates CRPD. According to Argentinian professor, lawyer, expert, and advocate for the rights of people with disabilities, Agustina Palacios, this model is based on two fundamental assumptions. The first is related to the fact that disability is not caused by "religious or scientific causes, but by social or at least predominantly social causes," understanding these as the limitations imposed by society on the person with a disability to have his or her needs met and to participate fully. The second is that "people with disabilities have much to contribute to society." In Palacios's words: "This means that—beyond people's functional diversities—disability is the result of a society that is not prepared or designed to meet the needs of everyone, but only of certain people, who, coincidentally, are considered standard persons.''
Regarding the social model of disability, Palacios states:
“...the social model argues that every person, regardless of the nature or complexity of their functional diversity, should be able to make decisions that affect their development as a moral subject, and should therefore be allowed to make such decisions.”
It is then imperative to eliminate the prima facie exclusion of CID from the procedure for requesting euthanasia. Exclusion is incompatible with the fact that in the universe of intellectual disabilities, there are different experiences of disability in which each case differs from the others. Automatic exclusion of CID implies applying a unique standard that may leave children with mild intellectual disabilities that do not affect their decision-making capacity in a deficit of protection. It is necessary, in terms of respect for fundamental rights, to allow these CIDs to submit the request under equal conditions and under a decision support system, with the corresponding reasonable accommodations.
The adoption of reasonable accommodations in the framework of decision support systems in each case, designed to cover the necessities of each CID, would comply with the constitutional duty to ”promote the conditions so that equality may be real and effective.” Under no scenario does it mean support of a eugenic approach. On the contrary, this position advocates for a human rights approach in which the CIDs’ moral agency and decision-making capacity will be recognized and respected. CIDs with terminal illnesses, who are in great suffering and have autonomous decisionmaking possibilities, should have the same opportunities to access euthanasia as other children in that situation.
Lege ferenda, it is urgent to eliminate the exclusion. For that purpose, different routes could be used. The first, which involves a greater degree of democratic deliberation, would be for Congress to pass a bill that regulates the fundamental RDD, including CID. However, this option is unlikely considering the traditional legislative inertia in this matter and the political costs in a profoundly religious country. The second would be for the MHSP, on its initiative or at the request of a party, to eliminate the exclusion directly. However, for this to happen, there would have to be political will on the part of the Government. The third way would be through the tutela action. In this case, it would be necessary to find a matter of a CID whose request is being denied and wait for the CC to select that file to establish binding jurisprudence.
The fourth way, and the most likely path forward, is through the abstract judicial review of administrative acts. In Colombia, the procedural vehicle that activates this review is the action of nullity due to unconstitutionality. It is the competence of the Council of State, one of the Colombian high courts, to exercise this review. One of the advantages of this action is its public nature. In other words, any citizen, without the need to have a direct interest, has standing to file the action. Then, the claim would be a request of nullity of the exclusion, on the grounds of the reasons noted above. This is the most direct path to forcing the issue and demanding a reckoning on the unconstitutional exclusion of CIDs from the fundamental RDD.