By Hilary White, Rome correspondent

ROME, November 21, 2008 ( – Some hope still exists to save Eluana Englaro’s life, but the government must move quickly to overcome political differences and act, a prominent Italian lawyer today told today.

The greatest hope to save the life of Eluana Englaro is to have the Italian government pass an emergency measure defining food and water as a human right, and not medical treatment, he said. While a group of pro-life advocates have brought a request for a hearing on the subject to the European Court of Human Rights, such an attempt, he said, will almost certainly result in a backlash against the legal concept of the right to life.

Eluana Englaro is a young woman who has been in a state of diminished consciousness since a car accident in 1992. Last week, the highest appeals court of Italy ruled that she may be killed by removal of food and hydration. Despite media reports that refer to her “life support system,” Eluana is not being kept alive by a respirator or any extraordinary medical treatments but is receiving only ordinary food and water through a feeding tube.

Today, interviewed Luca Silvestri, a lawyer and the son of a well known Roman advocate, at his offices in central Rome. Silvestri, who is strongly pro-life, has been observing the Englaro case closely and said that while some options are still available for Eluana, the legal implications of the decision of the Court of Cassation on November 14th were serious for Italian law and could have repercussions on the international scene. He said that the decision is the first step in the course towards legalised euthanasia for Italy.

Since 1999, Eluana’s father and legal guardian, Beppino Englaro, has been petitioning courts to have her food and hydration removed to “allow her to die,” having argued in court that she had told him once that she would not want to be kept alive artificially if she were incapacitated. In July this year, a Milan Court of Appeal ruled that her father may have the food and hydration tube removed, thereby dehydrating his daughter to death. 

The issue revolves around the definition of “medical treatment” under the Constitution, and whether it includes the provision of food and water. Silvestri explained that under Article 32 of the Italian Constitution, a patient has the right to accept or refuse medical therapies. But this has always been interpreted as specifically excluding food and water, which are not medical treatment, but the ordinary means of sustaining human life. Until the Englaro decision, he said, Italian law did not recognise in any way a “right” for a patient to decide to end his or her own life.

But, he said, “This situation is totally new legal ground,” and the definition of food and water as medical treatment, he said, is the crucial hinge upon which the legal protections of human life in Italy rest. In other countries, including Canada, food and hydration can be considered medical treatment that can be legally removed from incapacitated patients at the request of family or at the orders of doctors. Not so in Italy, until last week’s decision of the Court of Cassation.

The Court’s ruling, said Silvestri, has taken Article 32 in the Constitution and now specifically interpreted it as meaning to include food and water. This has opened the door in Italy for doctors and families legally to kill patients by dehydration, and therefore for legalised euthanasia.

Mr. Englaro’s efforts, however, are being hampered by the decision of the nuns in whose care Eluana has been for 14 years, who refuse to participate in her killing. The Misericordine sisters of Lecco issued a statement this week saying they would refuse to help dehydrate Eluana to death. “Our hope, and that of many like us,” they said, “is that the death by hunger and thirst of Eluana, and others in her condition, will not be carried out.”

But Silvestri said that the refusal of the nuns, and the reported refusal of several other nursing homes in Italy, to participate in Eluana’s killing is not going to be a certain safeguard. “It is obvious,” he said, “that looking around for hospitals or nursing homes, he [Beppino Englaro] eventually will find one that is ready to do this. One that will not present any conscientious objection.”

“It is not easy because something like this has never happened in Italy before, but it’s not impossible.”

The first legal option to save Eluana’s life, Silvestri said, is for someone, possibly the Misericordine sisters, to file a request with the courts that her father will be removed from his guardianship. Many possible people could come forward with such a request, he said, either family members, friends or other interested parties, but as yet, no one has made the attempt.

“The important thing is to try to remove Eluana’s father as guardian,” he said. Silvestri suggested that another possibility is for the sisters to refuse to relinquish physical custody of Eluana when her father comes to remove her from their care, and to file an action to prevent the execution of the Court of Cassation’s decision. These measures, however, are dubious and depend upon the courts.

He confirmed that the Italian courts, as with courts in most other western countries, are “subject to the spirit of the times” and are “moving towards a cultural acceptance of euthanasia.” There is a “masked” and surreptitious movement towards euthanasia, said Silvestri. He fears that the courts are part of a general trend towards a change to establish in law the existence of a “right to determine life.”

The greatest hope, Silvestri said, both of saving Eluana and of safeguarding others in similar situations, is to have the government formally define food and hydration as a human right.

A “decree law” he said, could be passed as an urgent matter in which the government could say unequivocally, “the removal of food and hydration is illegal.” This law would be subject to review and possible amendment by Parliament, but would stand for at least two months.

Silvestri warned, however, that while there is great interest in Parliament in the case and in closing this loophole, divisions within and between parties exist. This is particularly the case in regards to an upcoming “living wills” law, in which there is division on whether to include a “food and hydration” clause. “There is political will to do it,” he said, “but the government might move too slowly.” The majority in the Italian Parliament, however, do not support the idea of including food and hydration as medical treatment.

The other possibility, the case being brought to the European Court of Human Rights in Strasbourg, could end up backfiring and doing more damage in the long run, in Italy and in other EU countries. “The situation could be made much worse at the EU Court of Human Rights” he said, with repercussions rippling across the EU member states.

Given the outcome of other such cases at the EU Court, the Englaro decision “would be decided against us, if it goes to the substance,” he said bluntly. And a decision like that would be used as a precedent in other countries for similar cases. “Such a decision,” he said, “would establish the concept in law of a ‘right to suicide’ in all of Europe.”

Read related coverage:

Italian Nuns Refuse to Kill Eluana Englaro

Eluana Englaro to Die by Dehydration after Italian High Court Ruling

Pro-life Advocates Rally in Rome for Italian “Terri Schiavo”

Removal of Food and Hydration from Italian Woman “Monstrous and Inhuman Murder”: Vatican Prelate