Euthanasia, philosophy, and the law: a jurist's view from Madrid.

In societies with an established system of rights, human dignity occupies the vertex of the moral statute. Freedom and equality are specific derivations of that higher value. Taking freedom and equality seriously necessarily means articulating a system of rights that places at its apex the value that unifies both: human dignity. However, in liberal democratic societies, which aim to transform into positive law the values that give foundation to rights, it is not unusual for there to be a contradiction between the constitutional declarations and the regulation of euthanasia, frequently typified as cooperation or assisting in suicide. That is the case of the Spanish legal framework. The Spanish constitution of 1978 determines that, ‘‘The dignity of the person, the inviolable rights which are inherent, the free development of the personality, respect for the law and the rights of others, are the foundation of political order and social peace’’ (Article 10.1). But the constitutional recognition of personal autonomy coexists with a penal code that puts any assistance with suicide on close footing. Article 143.4 of the 1995 penal code establishes that ‘‘whoever provokes or actively cooperates with direct and necessary acts to produce a person’s death, by express, serious and unequivocal petition of that person, in cases in which the victim suffers a grave disease that would necessarily cause his or her death, or that produces grave, permanent and difficult to tolerate suffering, will receive a penalty inferior in one or two degrees’’ to the penalties for direct cooperation with suicide. What the constitution gives, the criminal code takes away. My intention in this article is to reflect as a Spanish jurist, from the point of view of philosophy of law, on the moral problem posed by euthanasia, as the matter to which the legal system will have to respond. This response will necessarily be conditioned by the values assumed by the legal system, which will be those that explicitly represent a shared minimal common ground, agreed upon through dialogue among the different maximalist moral positions. As Adela Cortina has pointed out in another article in this collection, this is the laborious way morally pluralistic societies such as Spain work. In that context, I want to argue in favor of individual autonomy as the strongest candidate to be put forward by what Cortina calls ‘‘the laboratories of bioethics’’ as the shared common ground with respect to the morality of euthanasia.