Schiavo Revisited? The Struggle for Autonomy at the End of Life in Italy

12 Marquette Univ. Elder's Advisor 295 (2011)

NSU Shepard Broad Law Center Research Paper No. 09-013

70 Pages Posted: 7 Oct 2009 Last revised: 11 Sep 2014

See all articles by Kathy L. Cerminara

Kathy L. Cerminara

Nova Southeastern University - Shepard Broad College of Law

Federico Gustavo Pizzetti

University of Milan

Watcharin Photangtham

New York University School of Law

Date Written: September 24, 2009

Abstract

Politically strident debates surrounding end-of-life decisionmaking have surfaced once again, this time across the Atlantic in Italy. Eluana Englaro died early this year after a prolonged court fight, causing the international press to compare her case to that of Theresa Marie Schiavo, who passed away in 2005 in Florida after nearly sparking constitutional crises on both state and federal levels. In many respects, the facts of Ms. Englaro’s case are similar to Schiavo, but a close analysis of Englaro leads to the surprising conclusion that the Italian Court of Cassazione in that case actually enunciated a broader, stronger right to make end-of-life decisions than has the United States Supreme Court thus far in America.

The parallels between Englaro and Schiavo have not solely been judicial, however. In a number of ways, despite the breadth of the judicial decisions in Englaro, institutional differences seem to be leading Italy down a different path in the Parliament than the United States has taken through its several legislatures. Despite the introduction of advance directive legislation in Parliament, it seems as if Italy’s path toward patients’ preserving robust end-of-life decisionmaking power even in incompetency lies not through that body in the future but through that body’s past actions. If the current proposed legislation fails, it is possible that patients and the courts can build upon the groundwork the courts have established through the Italian constitution in combination with the statutory tool of the amministratore di sostegno to secure robust patient autonomy near the end of life.

Keywords: End-of-Life, Constitutional Law, Italian Constitutional Law, Italy, Italian Law, Decision-Making, Schiavo, Englaro, Patient Autonomy

JEL Classification: K00, K32

Suggested Citation

Cerminara, Kathy L. and Pizzetti, Federico Gustavo and Photangtham, Watcharin, Schiavo Revisited? The Struggle for Autonomy at the End of Life in Italy (September 24, 2009). 12 Marquette Univ. Elder's Advisor 295 (2011); NSU Shepard Broad Law Center Research Paper No. 09-013. Available at SSRN: https://ssrn.com/abstract=1477957 or http://dx.doi.org/10.2139/ssrn.1477957

Kathy L. Cerminara (Contact Author)

Nova Southeastern University - Shepard Broad College of Law ( email )

3305 College Avenue
Ft. Lauderdale, FL 33314
United States
954-262-6193 (Phone)
954-262-3835 (Fax)

HOME PAGE: http://www.nsulaw.nova.edu/faculty/profiles/index.cfm?ID=18

Federico Gustavo Pizzetti

University of Milan ( email )

Via Festa del Perdono, 7
Milan, 20122
Italy

Watcharin Photangtham

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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