Lhe debate on the end of life takes hold in the media space and on social networks and, with it, the terms dignity, vulnerability, individual freedom, suffering, euthanasia, duty of carer. It is also a question of the development of palliative care, of conscientious objection for doctors who would not like to participate in medical assistance in dying, of a misguided solidarity that the decriminalization of euthanasia would constitute, of the societal fracture that represents the possibility of medical assistance in dying. These ideas come up with each resurgence of the debate on the decriminalization or the legalization of medical aid in dying. In an attempt to renew the terms of the discussion, we propose to focus on two notions – the regimes of unavailability of the body and of consent – in order to anchor the debate in the rights of patients.
In French law, the fundamental principle that governs the relationship to the body is that of its unavailability, affirming that the human body cannot be the subject of a contract or an agreement and thus setting limits to the free disposal of oneself. . Surrogacy is therefore illegal. However, this principle has exceptions. This is the case for abortion, sex change and voluntary sterilization, for which it was collectively decided that human rights prevailed over the principle of unavailability. These three exceptions summon medicine for their realization. The medical interest is not primary, it is the choice and the decision of the person on an event or a disposition of his body which base the medical intervention.
In the continuity of the movement for the rights of the sick, could we not consider medical assistance in dying in this perspective of exception to the principle of the unavailability of the body, based on the recognition and respect for the autonomy of people ? It is essential that the law be the formal relay and the framework for applying a practice responding to an individual decision of the sick person, knowingly. The implementation cannot be left to the sole judgment of a healthcare professional; this would be synonymous with a break with the legal equality of individuals.
Depth of field
What about consent? In the light of certain current feminist analyses, in particular those of the philosopher Camille Froidevaux-Metterie and the sociologist Irène Théry, this notion of consent is extremely interesting in the approach to the controversy over medical assistance in dying. Why ? Because it makes it possible to think about who is able to consent to what act and thus to shed light on the power structures that are called into question by this relationship between a person asking for consent and a person granting consent. It gives a depth of field to the analysis of the medical relationship.
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