La eutanasia en la jurisprudencia de la Corte Constitucional Colombiana. Herejías de la dignidad y del pluralismo

Abstract

Euthanasia in Colombian Constitutional Court decisions. Heresies from dignity and pluralism - Dignified death is one of the most controversial issues in the world of Constitutional Law. Although it should be explicitly expressed in constitutional literature or regulated by the legislature, this branch refrains from doing so in light of the few electoral dividends of necessary and humanitarian intervention. In such a scenario, judges speak out on the constitutionality of norms related to this topic or on the viability of protecting this “fundamental right”. The reasonings of the judges range from “heretic” and liberal standpoints to the most conservative and traditional. Within the framework of its Political Constitution of 1991, Colombia has not been detached from this important discussion. Constitutional judges have spoken out three times in a momentous manner: on one side, the founding decision on the matter—i.e. judgment C-239 of 1997 (Reporting Judge: Carlos Gaviria Díaz)—which has been permanently quoted; and, that although it declared pietistic homicide constitutional, it warned that this only could happen in the case of terminally ill patients who freely express their will of died and the procedure made by a Doctor; Judgment C-233 of 2021 (Reporting judge: Diana Fajardo Rivera) that extends the fundamental right of access to euthanasia, by declaring article 106 of Law 599 of 2000 constitutional, under the idea that no one could not incurred in crime when, in the homicide, a doctor acts with mercy due free petition and informed consent of some patient. As the Court notes, this petition could be result of intense physical or mental suffering, arising from bodily injury or serious and incurable disease; Finally, judgment C-164 of 2022 (Reporting judge: Antonio José Lizarazo Campo) declared the second paragraph (of article 107 of Law 599 of 2000) conditional constitutionality, in the sense that the crime of aid to suicide, when the same scientific and voluntary assumptions already related in the preceding sentence are gather (C-233 of 2021). Thus, the present article analyzes the constitutional framework of dignified death in Colombia, the “heretic” founding judgment and the current precedent judgment: a whole critic line of case-law that calls upon an urgent intervention of the legislature on the topic and a regulation attuned with worldwide tendencies in terms of dignified death and solidarity.