By Martín Hevia
In “D.M.A. s/ declaración de incapacidad” decided early this month, the Supreme Court of Argentina upheld the right to decide about one´s own death (“muerte digna”). As I had explained in a previous comment written when the ruling of the case was pending, the case involved a patient, M.A.D., that had been in a permanent, irreversible, vegetative state for 20 years due to a car accident. His sisters requested the discontinuation of the vital supportive measures which maintained M.A.D alive in an artificial way. Although this was not the first time that the Court discussed the right to die, it was a different case in that there was not a patient’s written statement on whether it was appropriate for him to continue or not certain medical treatment to keep him alive.
The Argentine National Congress had already passed legislation stating that, whenever a patient is unable to give informed consent, her relatives can do so in her name. On that basis, following the opinion of the sisters of M.A.D., the Supreme Court ordered the discontinuation of the vital supportive measures which maintained M.D alive in an artificial way.
The ruling is based on the principle of personal autonomy, which has been recognized as a fundamental constitutional principle by the Court in many instances: the Constitution recognizes a right to follow one´s own conception of a good life. For instance, in 2012, the Court held in “Albarracini Nieves” that the Constitution grants a right to refuse blood transfusions. There, the Court held that “The possibility of accepting or refusing a specific treatment, or selecting an alternative form of treatment , is part of self-determination and personal autonomy; that patients have the right to choose options according to their own values or points of view, even when they may seem irrational or imprudent, and that free choice must be respected.”
Now, given the absence of a patient´s written statement, how is it that we can be respectful of constitutional commitments to personal autonomy?
The Court answered this question by saying that those deciding in the name of the patient cannot decide on the basis of their convictions; they are to decide by making reference to the patient´s will. They do not decide for the patient but they are to do by communicating the patient´s will. This is why the law requires a sworn statement of the relatives.
Although the case was deciding this particular case, an obvious question arises: what if there is no proof of the patient´s will? This is an interesting issue for further cases.