Violante, Teresa

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Between Legislative Defiance andLegal SecurityTeresa Violante 2019-10-24T17:05:10In Portugal, a recent decision of the Constitutional Court rejected another legislativeattempt to implement a successful system of surrogacy. For the first time in its26-year history, the Court faced legislative defiance of its previous case law butasserted its role as the ultimate interpreter of the Constitution. Arguments of “legalsecurity” provided the formal ground to escape the conflict between branches.The 2018 decision on surrogacySome time ago, I reported on a ruling of the Portuguese Constitutional Court onchallenges regarding surrogacy (gestation by substitution). The Court explicitlyaffirmed the constitutionality of the Portuguese model of gestation by substitution,and the decision seemed like a blessing in disguise for those who had long strived tolegalize surrogacy. However, the Court required amendments to some problematicaspects of the regime and detailed some conditions that would have to be met.Significantly, the judges rendered the Portuguese model of surrogacy constitutionallyvalid if a right to regret of the surrogate woman was made available until at leastthe moment of birth. Following political disagreement over this right and faced withlegislative changes that failed to comply with the judicial conditionality, the Court,without allowing for a judicial re-opening of the debate, recently upheld its priordecision and reaffirmed the need for a right to regret.The struggle for a new legal regimeFollowing the 2018 ruling and the subsequent suspension of ongoing treatments andprocedures, an amendment proposal was filed, establishing the surrogate’s right toregret and to claim the child as her own until after birth. However, this right causeduneasiness even among supporters of surrogacy.Several experts expressed strong reservations during parliamentary hearings. Theentrenchment of a right to regret until after birth raised not only ethical but also legaldoubts as it might collide with fundamental rights of the intending parents who beara biological connection with the child and, more significantly, the fundamental rightsof the baby who would be born into a situation of uncertainty and potential litigation.As the hearings evolved, a majority opinion in favor of rejecting the right to regret asdetailed by the Court became more evident.Following the compelling suggestion of the National Council on Medically AssistedProcreation, the proposal was amended in order to limit the constitutional risks andprevent possible exercises of the right to regret. These changes entailed significant- 1 -constraints to surrogacy: Only a close relative of one of the beneficiaries could serveas surrogate (mother, grandmother, first cousin, mother in law or adoptive mother),and if she had already been a mother herself. Moreover, the MPs clarified thatgestation by substitution was envisaged as a last resort technique to women unableto carry a viable pregnancy based on their uterine medical condition (the previouswording raised doubts regarding transgender women and “problematic cases” suchas psychological or mental disorders).Disagreement over the constitutionality of the right to regret led to it being rejectedand replaced by the previous solution that established the right to revoke the consentuntil the beginning of treatments. The other amendments, including the newlyconstrained framework of gestation by substitution, succeeded, and the bill was sentto the President of the Republic for promulgation.The challenge to the amending billFor the first time, the national legislature defied the Court’s previous interpretationand put forward a regime that had been previously nullified by an erga omnesdecision of unconstitutionality. At the end of August, the President of the Republic,instead of promulgating or vetoing the bill, initiated an ex ante constitutional reviewclaiming that the legislative amendment did not abide by the Constitutional Court’sdecision.Ex ante review represents a substantial judicial intrusion on the political process.If the Court issues an opinion of unconstitutionality the President must veto the billand send it back to parliament. MPs must then excise it from the bill unless thereis a 2/3 majority confirming the norm (this confirmation mechanism has never beenexercised and was not a serious possibility given the general elections to be held onOctober 6). The decision must be delivered within 25 days following the request.Faced with the legislative defiance, would the judges argue for a preclusive effect ofthe previous erga omnes unconstitutionality ruling that would prevent the legislaturefrom reenacting unconstitutional norms? Alternatively, would they re-open the debateeven if simply to reinstate their previous arguments and declare the invalidity of asurrogacy model that does not contemplate the right to regret until birth?A case of judicial refusal to re-open theconstitutional interpretation processIn its decision issued on September 18, the Court stood middle ground. On themerits of the case, the Court qualified the reinstatement of the previously nullifiedregime “as a new manifestation of the legislative power to determine the discipline ofgestation by substitution”. Intriguingly, to this “manifestation of the legislative power”the Court simply added that “there are no objective or subjective circumstances thatjustify reopening the discussion”, namely technical, scientific, sociological, or politicalcircumstances, considering the “imperatives of legal security and the previousvalidity criterium”.- 2 -The profound debate that this review seemed to open was circumvented by onesentence where legal security emerges as the main argument. On these grounds,the Court, in accordance with its previous ruling, affirmed the unconstitutionality ofthe challenged norms for breach of the right to the development of personality, inharmony with the principle of human dignity, and the right to form a family.At first glance, the judges seem to endorse a horizontal relationship with thelegislature that leaves untouched the integrity of the legislative power as well asthe Court’s full jurisdiction to review its previous determination of what fundamentalrights require in difficult cases. However, such power of the legislature lacksindependent force if the Court holds a discretionary capacity to determine whetherthe threshold for re-opening the constitutional interpretation debate is met (note thatthe threshold concerns re-opening the debate and not the burden of justification toreinstate the previous decision).The first concurring opinion brings to light an underlying judicial claim: that althoughthe Court agrees, in principle, to retaining full jurisdiction to review a legislativedefiance of its previous case law, it can only exercise said power under certaincircumstances (such as supervenient factors or arguments or the conviction thatthe prior decision was severely flawed thus prevailing the need to correct theerroneous understanding). This vote was jointly signed by the rapporteur and threeother judges who had all dissented in the 2018 ruling. They claim to be “bound”by the previous judicial determination under the principle of “case law stability”.Although the signatories expressly reject the existence of a rule of precedent, theirargumentation echoes unequivocally the doctrine of stare decisis, which is not abinding yardstick in Portugal. In any case, balancing the exercise of the sovereignpower to legislate against the principle of “stability of judicial decisions” defers thelast word on constitutional issues to the judicial branch and will ultimately assignthat institution the exclusive power to determine if and when the debate can be re-opened. It is important to recall that surrogacy was suspended with the previousruling, and no viable pregnancies were ever at stake.Three other separate opinions developed autonomous lines of reasoning thatallowed a re-opening of the debate, either to concur or dissent. Eloquently, one ofthem noted that the Court seems to endorse a self-binding authority of its previousdecisions and that giving prevalence to legal security entails an inadmissible judicialsuperiority and endangers the Court’s role as a forum for debating central societalproblems.The authority of previous case law as a means toclose the political debateAlthough previous case law and decisions are unquestionably important andconstitute legitimate legal arguments, they are one of several factors a dedicatedconstitutional court must consider when faced with any “manifestation of thelegislative power”. In this case, concerns of interinstitutional comity should sufficeto re-open the discussion. The mere fact that the defiance came as a result of- 3 -serious constitutional doubts raised during the political process regarding the regimeproposed by the Court was a compelling reason for a judicial reexamination of theissue. Moreover, the Court’s statement that no relevant legal and political factsjustified a reassessment is put to doubt by the substantial amendments introduced inthe legal regime.Some weeks ago, Pietro Faraguna claimed that a paternalistic approach tojudicial review might hinder a legislature’s prospects of remaining functionallyable to respond to social demands. However, apparently less intrusive and moreformalist exercises of judicial review can produce similar consequences even whenparliaments struggle hard to legislate in ethically and socially sensitive areas.Instead of furthering political deliberation, the ruling narrowed it down to theconditions initially spelled out by the Court, without allowing for a re-articulationof the problem in light of the constitutional debate held during the legislativeprocess. By doing so, the Court failed to recognize the legislature’s currency as thedemocratic lawmaker.- 4 -

Between Legislative Defiance and Legal Security

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Between Legislative Defiance and Legal Security

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