France’s Euthanasia Law: A Legally Fragile Reform

Barely passed, already challenged. The bill establishing a “right to assisted dying” has not even had to wait for its promulgation to find itself in a situation almost unprecedented under the Fifth Republic. It has been referred to the Constitutional Council in separate challenges by multiple actors with very different political leanings, a sign that, beyond the moral debate, it is now the very legal soundness of the reform that is being called into question.

Supporters of the bill have often presented the adoption of the law as the natural culmination of a progression in individual rights. The referrals, however, prove that its foundations are sufficiently contested for even the government to deem it prudent to seek the arbitration of the Constitutional Council.

Constitutional review prior to promulgation is a standard procedure. The parliamentary opposition regularly resorts to it in the case of the most sensitive legislation. But the present case goes far beyond usual practice.

Gérard Larcher, President of the Senate, has decided to personally refer the bill to the Constitutional Council, which in itself is a rare step for the president of a chamber.

Around sixty MPs and sixty senators from the right and centre have also lodged an appeal, challenging several key provisions of the bill. MPs from the Rassemblement National have lodged their own appeal.

Finally, Prime Minister Sébastien Lecornu himself has asked the Constitutional Council to examine several key points of the bill put forward by his own government–regarding a proposal he spent months drafting.

In other words, even the reform’s proponents seem to be concerned that the boundary between end-of-life care and the legal framework for assisted dying remains legally shaky.

The appeals do not concern secondary provisions but target the very heart of the legislation. The first issue concerns the criteria for accessing assisted dying.

The terms adopted by the legislature—“serious and incurable condition,” “intractable suffering,” “life-threatening condition”—are deemed to be insufficiently defined. Yet a law that regulates the possibility of inducing death cannot afford to use vague wording. The applicants consider that these terms leave considerable scope for interpretation by doctors, at the risk of creating widely differing practices across different institutions.

The second point relates to consent. The law requires that consent be free and informed. But how can one ensure that a very elderly, dependent or severely disabled person is not subject to any family, social or economic pressure? The appeals emphasise that vulnerability does not disappear simply because a form has been signed.

The third issue, undoubtedly the most sensitive, concerns the administration of the lethal substance by a doctor or nurse when the patient is no longer capable of carrying out the act themselves. This is no longer merely a matter of authorising assisted suicide, but rather of permitting a healthcare professional to voluntarily cause death. This provision represents the most profound break with the entire French legal tradition and explains why it lies at the heart of constitutional debates–with the question being whether a doctor, acting individually, or an institution, acting collectively, may opt out of it.

Since its famous 1994 ruling on the bioethics laws, the Constitutional Council has recognised the protection of human dignity as a principle of constitutional value. Until now, this principle has mainly served to prevent the human body from becoming an object or a commodity. With the law on assisted dying, the Council is faced with an entirely new question: can this principle be reconciled with a law that explicitly authorises an act intended to cause death?

Supporters of the reform invoke individual freedom and personal autonomy. Opponents point out that the Constitution also protects human dignity, mandates the protection of the most vulnerable, and, more broadly, the right to life. The Council will therefore have to strike a balance between principles that have never before been pitted against one another so directly.

The prospect of the Constitutional Council overturning the law in its entirety remains highly unlikely. For several decades, the ‘Sages’–as the members of this council are known–have shown great restraint, not to say cowardice, on social issues. Whether on same-sex marriage, bioethics or medically assisted reproduction, they have almost always left the final say to the legislature. Its generally progressive stance does not suggest that the newly passed law will be subject to strong censure.

However, several provisions could be struck down or, at the very least, subject to strict conditions. The medical criteria could be deemed insufficiently precise. The safeguards surrounding consent could be strengthened. The possibility for a third party to administer the lethal substance themselves could also be subject to interpretative reservations designed to severely limit its scope. Even without overturning the law, the Council has a powerful tool at its disposal: ‘interpretative reservations.’ By validating the text subject to certain conditions, it can profoundly alter its practical application.

It is exceptional for a reform presented as “balanced” to give rise to so many separate appeals even before it comes into force. This accumulation of appeals reveals something that the triumphant post-vote rhetoric struggles to conceal: on the issue of euthanasia, there is no political consensus, and legal certainty is far from assured.