Ecuador At the beginning of February, it became the second country in Latin America to legalize euthanasia for patients suffering from serious and incurable diseases. The ruling came after the lawsuit filed Paola Roldana 43-year-old woman with amyotrophic lateral sclerosis (ALS).
Farith Simonone of the lawyers who helped Roldán sue an article in the Ecuadorian Constitution that prevented euthanasia, He spoke exclusively with EL TIEMPO about the scope of this decision.
Simón also gave details of how Roldán, a woman who remains connected to a respirator for 24 hours, He made the decision to file a lawsuit before the high court and it ended up ruling in his favor.
“Paola is a person who, when you meet her, you realize that she has an intrinsic rebellion to face life and mental clarity,” Simón said in dialogue with this newspaper.
The jurist, for his part, revealed details of how the procedure will now work in the neighboring country and, above all, responded to the criticism that arose in sectors such as the Catholic Church, which called the Court's resolution “diabolical.”
“In Ecuador there is no open door for death. Our lawsuit was filed only so that the patients are the ones who issue the consent and the court decided that there are very complex cases where there are people who are in a vegetative state“added Simón.
How did Paola's case become a precedent for euthanasia to become legal in Ecuador?
It is relevant to know how this concern arises for her, this desire to confront the justice system. It all starts with Pablo, a doctor who was treating her. He tells her that when she can no longer bear her pain or when her living condition is extreme, she can ask a doctor for assistance to die peacefully. However, Pablo tells him that it must be done secretly because it is prohibited in Ecuador.
Paola is a person who, when you meet her, you realize that she has an intrinsic rebellion to face life and mental clarity. Then she says: “how can it be that such a personal thing has to happen in secret or in private. I have never kept anything secret, I have never hidden anything. What should I do?”. And she starts looking for lawyers and reaches a colleague of mine named Ramiro Ávila, who puts together the team, including me. What we did was file a claim for the unconstitutionality of article 144 of the crime of homicide in order to vindicate the right of people to decide.
What will the protocol be like now in Ecuador for those who want to legally resort to the euthanasia process?
What the court said is that (article) 144 is constitutional as long as it is read as the non-criminal liability of doctors who accompany during the euthanasia period people who have the following conditions: serious and irreversible bodily injury or an illness serious and incurable that causes deep intense pain.
The court says that this decriminalization of euthanasia is immediately applicable in Ecuador. It is now possible for patients to come to her. However, there are three deadlines dictated by the court: one to the Ministry of Health, which is given two months to make a regulation; The second period is about six months for the Ombudsman to draft a bill, and the National Assembly is given a period of one year to approve the bill presented by the Ombudsman under the conditions set forth by the Constitutional court. There are some issues that are related to medical protocols and the law has to be in line to develop aspects of the sentence.
There are those who say that it cannot be applied now. I think the ruling is quite clear on this matter. However, doctors are afraid that if they do so before the regulation they could eventually be subject to prosecution for manslaughter. In reality, the ruling says that it is immediately applicable.
Now, there are things to regulate. First, the consent format. When we present the lawsuit, we accompany it with the protocol that exists in Colombia and we take it as an example. Colombia's history of euthanasia goes back many years. However, the court (of Ecuador) decided that they were not going to approve the protocol, but rather had to send to the corresponding authorities to make the regulations.
You as lawyers are also now in the process of regulating conscientious objection so that it is of a personal and not institutional nature. What implications does this have?
Your experience (from Colombia) is a clear example of what can happen when there are objections from certain sectors of the population and that is capable of raising legal obstacles that lead to 18 years passing for the decision to become a reality. In this case, the court in Ecuador was much more direct.
But conscientious objection, first, is a personal issue. One of the two judges who voted against said that the institutions could make conscientious objection, which is not true. The right established by the court ruling is that it is people who have the possibility of being conscientious objectors, not institutions. The way the sentence is worded makes it clear that it is the people and that each doctor can decide whether or not to do the procedure. The debate is in the public sector. What will happen to the doctors who oppose it? What happens if there are few doctors in a place and, furthermore, they oppose it? That is what must be regulated in the law.
What do you say to the citizen groups that allege that suicide is being legalized in Ecuador?
It is part of people's right to express their opinion. There are sectors linked to certain religions that have clearly always been against euthanasia and that militate against euthanasia. One understands that they express that opinion, they have the right. Now, what they do is force the numbers and give an interpretation regarding what they qualify as “culture of death.”
The Ecuadorian ruling is very clear: only the patient, with free and unequivocal consent, or a family member whose will cannot express that will, can request euthanasia when there is a serious and incurable illness. It is not for any other cause. It is the people who request this right.
However, these groups present cases like the Canadians or the Dutch, where they say that the numbers (of euthanasia performed) are incredible. First, there is an issue of very important normative differences. For example, in Holland it is possible to request euthanasia due to vital exhaustion, which is something that has not even been thought of in Ecuador. Here the causes are very clear, and there is a basic difference between euthanasia and assisted suicide. Euthanasia is a medical procedure performed by a doctor at the request of the patient.
Assisted suicide is a procedure in which a person ends his or her own life, with the assistance of someone else, and here in Ecuador suicide is criminalized. Not the person who commits suicide, because there is a confusion of active subject and passive subject, but instigation or assistance to suicide is penalized. So, criminally, assisted suicide is impossible in Ecuador.
The Catholic Church of Ecuador rejected the decision and considered it “diabolical.” What do you have to say about it?
The Episcopal Conference made a rather harsh statement. What they basically stated is that this “culture of death and hedonism” has prevailed in Ecuador. They say it is a “culture of death” because life, which is a divine gift, is not preserved. And hedonism, because people who are suffering give in to the pain and choose euthanasia. They, indeed, described the decision as “diabolical.”
I think the best response was Paola's, because she said: “I love life, I don't want to die, what happens is that I have such precarious health conditions that I want to be able to decide at the moment that I can't take it anymore. ”.
In Ecuador there is no open door for death. Our lawsuit was filed only so that the patients are the ones who issue the consent and the court decided that there are very complex cases where there are people who are in a vegetative state. So, the Episcopal Conference exercised its right to express its opinion, but I do not agree with the content of the opinion. However, I agree with one thing: in Ecuador we must improve the public health system so that, if a person decides not to undergo euthanasia, and wants palliative care, they can access excellent care.
How does Paola feel about the decision she made and that, although she probably cannot make the decision herself, it will mark a milestone for the rest of the people who from now on search legally in Ecuador Euthanasia?
In reality, the sentence is immediately applicable, Paola could already agree if she makes the decision. Now, there are two important things regarding the issue of Paola. She has repeatedly said that she loves living, she loves her family, her son and her husband. There are people who do not feel pain, but in their case, 95 percent of their muscles are paralyzed and they depend on a respirator.
There is an interesting conversation between Paola and Jordi Pons Sabater, a Spaniard who also has ALS. Pons Sabater is an active activist on the issue of patient care. In the talk, he asks Paola why he made the decision (to sue) and she made it clear: because of the possibility of deciding. In fact, many people have written about her saying: “you should have died by now” or “why are you still alive?” And what she has said is that she wants to be able to decide when she will die.
What's coming is that Paola and her family will have to decide whether or not to make the decision. In our case, as lawyers, it is to ensure that the regulations approved in Ecuador are not contrary to the Constitutional Court and to continue fighting for the health system to improve in our country.
The truth is that Paola was tremendously excited the day she learned of the sentence. For her, for the possibility of deciding, but also for the fact that she is aware of her and that she became one of those people who could not express her opinion. It is incredible what this woman who is tied to a bed in a bed with a respirator 24 hours a day has been able to change. The most important thing about all this is the possibility that people can decide.
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