Euthanasia - A Right to Die?
Updated: Apr 15, 2020
Written by: Karina Matvienko
Recent repealing of the ban on assisted suicide in Germany brought seemingly forgotten discussions about euthanasia and its regulation back into public consciousness. The delicate matter of euthanasia is first and foremost of a moral, religious and ethical concern. It might seem like a conceptual product of modern ages, but euthanasia has been practised from the ancient times in its different forms. As for now, there are just three countries, Luxemburg, Belgium and the Netherlands, in the whole world which have a full-fledged practice of ending a life. But what about Switzerland? This is the first country which comes to our mind when speaking about euthanasia. Switzerland offers assisted suicide without active euthanasia, which only exists in the countries mentioned above.
Importantly, to better understand the debate on euthanasia, we must draw a distinction between four main types of euthanasia, i.e.: active, passive, indirect and assisted suicide. Passive euthanasia entails termination or withholding of medical treatment necessary to sustaining life. This can happen when doctors switch off machines and let the disease progress, which would inevitably lead to death or not provide a sick person with a necessary surgery. Indirect euthanasia means giving a patient such a treatment, which would reduce the pain and suffering at the cost of shortening life. Active euthanasia occurs when doctors or other people intentionally give a person a lethal substance, which cause death. Assisted suicide, on the contrary, is providing a person wishing to end life with necessary means, usually sedatives, but the act of using them remains with the one wishing to die. Active euthanasia is considered to be the most controversial type and it is only legal in the Benelux countries. While a lot of countries do not persecute for passive euthanasia, there is also a tendency to liberalize the practice as recent developments in Germany prove it.
Such a distinction also indicates another crucial factor, i.e. it stands in direct relationship with a right to life which is protected by numerous international treaties on human rights as well as constitutions. There are 3 obligations a state has to fulfil when it comes to human rights: obligation to respect, protect and prevent. Ensuring a right to life - for instance as spelled out in Art. 2 of European Convention on Human Rights (ECHR) and Art. 6 International Covenant on Civil and Political Rights (ICCPR), clearly falls under the duty to prevent (the violation of human rights by third parties) and duty to protect (a right to life itself).
Furthermore, euthanasia also deals with the duty to respect. The duty to respect requires States to refrain from infringing on human rights. A lot of people who cannot be easily granted with a permit, namely a medical prescription, to end life try to appeal the court’s decision in the European Court of Human Rights. They refer to Article 8 in ECHR (corresponds with Art. 17 in ICCPR) which guarantees a right to respect for private and family life, correspondence and home which is also sometimes called a right to identity, self-determination and physical and psychological integrity. This Article is mainly a negative obligation of States meaning they should not interfere with the enjoyment of the right unless it is in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society (Art. 8.2 ECHR). With reference to Article 8, a person has also a right to determine when to end his or her life. Yet, it is Article 2 (a right to life) which is the main sticking point. It is also an absolute right (non-derogable) and essentially means it is the State’s responsibility to take up all measures to ensure this right (positive obligation). So, the question is, does euthanasia qualify as the right to private life, namely physical integrity under Article 8 ECHR? Or does it fundamentally violate a right to life under Article 2? Or… is it a part of it?
Potentially competing interests (safeguard of life vs. respect for personal autonomy) left regulation of the end-of-life issue mainly to the States. While there is some clarity with active euthanasia in the Benelux countries, the European Court of Human Rights in Strasbourg has been confronted with cases of assisted suicide and passive euthanasia. There is a tendency in Strasbourg to acknowledge that not letting a person decide when and how he/she wants to die is a clear infringement of Article 8 (respect for personal autonomy). It is, however, a bit more difficult with passive euthanasia cases. Here the Court reviews whether domestic law on withdrawal of treatment is compatible with Article 2 under which each State has a positive obligation.
It is important to emphasize that there has been a consistent debate on the topic of euthanasia only in the Member States of the European Convention on Human Rights. Notwithstanding the fact that a delicate matter of euthanasia is still in the realm of national law, the European Court of Human Rights has been coherently acknowledging it as an implicit right which derives from Article 8 in light of Article 2 of European Convention on Human Rights.