BREAKING NEWS - The Belgian Constitutional Court rejects the appeal relating to the 2020 law on euthanasia

In a judgment published on Thursday February 17, 2022, the Constitutional Court of Belgium rejects the action for annulment of the law of 15 March 2020 amending the legislation on euthanasia.

Of the three amendments introduced by the law, the Court considers that two of them are not contrary to the Constitution. As regards the third provision, relating to the infringement of the freedom of healthcare institutions which do not practise euthanasia, the Court refuses to examine the appeal, declaring it inadmissible.

As a reminder, the law passed in 2020 first provides that 'no written or unwritten clause can prevent a doctor from performing euthanasia'. This provision aims to de facto prohibit retirement homes or hospitals whose care project excludes the fact of ending the life of their residents or patients by euthanasia, and which favor accompaniment through palliative care. The applicant citizens, as well as the European Institute of Bioethics, the intervener in the action, considered that such a restriction unfairly infringed the freedom of those healthcare institutions.

Taking the view that the applicants had no interest in bringing proceedings as individuals, the Court refuses to examine their arguments (see paragraph B.4.3 of the judgment). The absence of a care institution among the applicants is, however, easily explained by the threats of punishment already weighing on them today when the administration finds that they exclude the practice of euthanasia from their project.

Second, the action also challenged the obligation of a doctor who refuses to perform euthanasia (if the legal conditions are not met or on grounds of conscience) to refer the patient 'to a centre or association specialising in the right to euthanasia'. The applicants considered that that obligation unfairly infringed the freedom of conscience of the doctor concerned by forcing him to participate in euthanasia, since the centres or associations in question were in fact campaigning for the extension of the Law on euthanasia. However, the Court rejects these arguments, considering that 'the doctor's freedom of conscience and his choice not to perform euthanasia, as well as the rights of the patient' are respected in the present case (B.10).

Finally, in the third place, the action also challenged the now unlimited period of validity of the advance declaration of euthanasia (whereas it had previously had to be renewed every five years), considering that such validity could lead to euthanasia being carried out on persons whose position has changed in the meantime, but who had forgotten to change their declaration. The Court rejects this argument – despite the critical remarks of the Council of State during the examination of the draft law – stating that 'conferring on the advance declaration a limited period of validity does not eliminate the risk that the declarant forgets to renew his declaration' and adding that 'nothing prevents the persons concerned, if necessary in consultation with their relatives and the professionals concerned, to regularly reassess their position' (B.16).

By refusing to examine the infringement of the freedom of healthcare institutions, the Court therefore leaves open the question of the compatibility of that provision with fundamental rights. It should be recalled that the articles in question had in any event already entered into force. As regards the reinforced obligation to return and the period of validity of the advance declaration, the summary assessment provided by the Court raises certain questions as to whether European fundamental rights law should be taken into full account.

Finally, it should be recalled that the Constitutional Court will soon have a new opportunity to rule on Belgian legislation on euthanasia, through the question referred for a preliminary ruling on the current absence of a specific sanction in the event of violation of the conditions of the 'euthanasia law'. This question comes in the context of the case of Tine Nys, a 38-year-old woman euthanized in 2010 for mental disorder.