In the request sent to the Constitutional Court, the head of state also points out "the total absence of densification of what is a definitive injury of extreme gravity", and asks the judges to assess the conformity of article 2 and, consequently, of articles 4. º, 5º, 7º and 27º of this law with the Constitution of the Portuguese Republic.
"It is not the object of this request to the Constitutional Court, in any case, the question of whether euthanasia, as a concept, is or is not in accordance with the Constitution, but rather the question of whether the concrete regulation of medically assisted death operated by the legislator this decree conforms to the Constitution, in a matter that is at the core of citizens' rights, freedoms and guarantees, as it involves the right to life and the freedom of its limitation, within a framework of human dignity", affirms Marcelo Rebelo de Sousa.
Article 2 of the law approved on 29 January in the Assembly of the Republic establishes that the "anticipation of medically assisted death" is no longer punished, as the following conditions are verified: "By decision of the person, over 18, whose will is current reiterated, serious, free and enlightened, in a situation of intolerable suffering, with definitive injury of extreme severity according to scientific consensus or incurable and fatal disease, when practiced or helped by health professionals".
According to the head of state, "it does not seem that the legislator provides the physician involved in the procedure with a minimally secure legislative framework that can guide his performance".
Referring to the expression "situation of intolerable suffering", the President of the Republic states that, "however, this concept is not minimally defined, and it does not seem, on the other hand, that it results unequivocally from medical 'leges artis'".
"In effect, when referring to the concept of suffering, it seems to inculcate a strong dimension of subjectivity. Since these concepts must be, in the terms of the decree, as will be materialized, filled out, essentially, by the guiding physician and by the specialist doctor, it is unclear how this suffering should be measured: whether from the patient's exclusive perspective, whether from the doctor's assessment of it. In any case, a concept with this degree of indeterminacy does not seem to conform to the demands of normative density resulting from the Fundamental Law", he adds.
Marcelo Rebelo de Sousa concludes that "a concept with this degree of indeterminacy does not seem to conform to the requirements of normative density resulting from the Constitution".