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WHAT IS THE LAW?

 

Is there a right to voluntary euthanasia?

The word euthanasia comes from the Greek word euthanatos, which means ‘easy death’. It describes the process of intentionally terminating a very ill person’s life to reduce their pain and suffering. While euthanasia is usually sought by those that are suffering excruciating pain, it is not the only reason. For example, changes in their quality of life caused by physical damage, and psychological factors commonly associated with incurable diseases are also referred to.

A distinction is drawn between active euthanasia (doing something positive to assist someone to die) and passive euthanasia (letting a person die, rather than intervening to save a life). The latter practice is effectively legal in many countries. The real controversy surrounds active euthanasia.

Is Euthanasia a globally recognised human right?

No, the right to assisted suicide or voluntary euthanasia is not a globally recognised human right. While we have a right to life, the opposite (a right to death) is not recognised at the international level.

Is it allowed anywhere?

Euthanasia is currently legal in Belgium, Luxembourg and the Netherlands, whereas assisted suicide is legal in Switzerland, and the US States of Oregon, Washington, Vermont and Montana. The current status of euthanasia in Columbia is unclear, with domestic court decisions supportive of the right but no legislation yet enacted.

Interactive world map showcasing where euthanasia is legal.

 

International instruments:

There is no explicit “right to die” in any of the global or regional human rights treaties. Examples of rights which might be relevant to voluntary euthanasia are the following.

International Covenant on Civil and Political Rights (ICCPR)

Article 6: The right to life

Article 7: Freedom from torture, cruel inhuman and degrading treatment

Article 17: The right to respect for private life

Note that the UN Human Rights Committee, which supervises the implementation of the ICCPR, has expressed concerns in comments about the relevant law in the Netherlands. These comments were issued after its periodic examinations of Dutch law and practice in 2001 (see para 5) and 2009 (para 7). It did not, however, state voluntary euthanasia was itself a breach of human rights.

European Convention on Human Rights (ECHR)

Article 8: The right to respect for private life

 

Regional human rights cases

Of the international and regional human rights courts, the most detailed and relevant consideration of voluntary euthanasia has come from the European Court of Human Rights. Despite the number of cases, the European Court has never clarified that there is a right to voluntary euthanasia or assisted suicide.

Gross v. Switzerland (application no. 67810/10) (14 May 2013)

An elderly woman, Alda Gross, was a Swiss citizen who sought to have an assisted suicide under Swiss law. She did not have a clinical illness and domestic courts rejected her application. She applied to the European Court of Human Rights, arguing that her wish for legally assisted suicide fell within the right to respect for her private life under Article 8 of the European Convention on Human Rights. The court agreed and found Switzerland had breached Article 8 by failing to provide clear legal guidelines on the extent of the domestic right to voluntary euthanasia. The case was referred to the Grand Chamber on 7 October 2013 and remains pending.

Koch v Germany (Application no. 497/09) (19 July 2012)

Ulrich Koch was a German national whose wife was nearly completely paralysed. She wished to end her life but the German courts rejected her application for assisted suicide. The court found that the failure by the German courts to examine the merits of the Ulrich Koch’s complaint, which was made on behalf of his then late wife, represented a violation of his human rights (Article 8 of the European Convention on Human Rights)

Haas v Switzerland (Application no. 31322/07) (20 January 2011)

Ernst G Haas was a Swiss national who suffered from a serious bipolar affective disorder and wished to end her life. Her request for a lethal substance was denied by the Federal Department of Health and she argued that this constituted a breach of her human rights (Article 8 of the European Convention on Human Rights).The court found that her rights were not breached as the European Convention on Human Rights does not guarantee the right to voluntary euthanasia.

Pretty v the United Kingdom (Application no. 2346/02) (29 July 2002)

Mrs Diane Pretty was a UK national who suffered from motor neurone disease. She was in the final stages of the disease and had her request for assisted suicide denied by the authorities. She sought a declaration that her husband not be prosecuted if he helped her die. When that declaration was refused at the domestic level, she claimed breaches of her ECHR rights before the European Court. The court found that the right to life (Article 2 of the EHCR) was not a positive obligation and so the conduct of the authorities did not constitute a violation. The court also held that the UK had not breached the prohibition against inhuman or degrading treatment (Article 3 of the ECHR).

 

Important laws around the world

International law essentially leaves it up to States to grapple with the ethical issue of whether there is a right to assisted suicide. That is, it appears that voluntary euthanasia is not prohibited under international human rights law so long as adequate safeguards are in place. Nor, however, is the denial of voluntary euthanasia a breach of international human rights law.

Australia:

Rights of the Terminally Ill Act 1995 (NT)

This Act legalised medically assisted voluntary euthanasia in the Northern Territory in 1995. However the federal Parliament effectively removed the Act two years later by passing a second law, the Euthanasia Laws Act 1997 (Cth).

Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Charter does not specifically mention euthanasia, and it seems very doubtful that it recognises such a right.

 

Netherlands:

Termination of Life on Request and Assisted Suicide (Review Procedures) Act, chs. 4-A, 4-B (2002) (Neth.)

The Netherlands was the first country in the world to legalise euthanasia. Under the Act physicians are allowed to assist the suicide of people suffering from incurable conditions and faced with extreme suffering.

 

Belgium:

The Belgium Act on Euthanasia (28 May 2002)

This Act gives power to physicians to assist with suicide of patients with incurable medical conditions of constant and unbearable suffering.

In May 2014, Belgium became the first country to allow terminally ill children to be euthanased.

 

Switzerland

The Swiss Criminal Code (1994)

The legality of assisted suicide in Switzerland is found under the Criminal Code. Article 115 states that inciting or assisting suicide is a punishable offence, however it is only a crime if it is done for ‘selfish motives’. This means that assisted suicide is legal in Switzerland without a specific euthanasia law being in place. It is also worth noting that nothing under the Criminal Code precludes non-Swiss nationals from also using legal assisted suicide services. Switzerland therefore has been and continues to be a central hub in Europe for foreigners seeking assisted suicide, with 172 foreigners using the service in 2012 alone. In a referendum on 15 May 2011, voters in Zurich rejected the notion of outlawing assisted suicide for foreigners by 78 per cent.

 

Important national cases

Australia

Bridgewater Care Group (Inc) v Rossiter [2009] WASC 229

Christian Rossiter was an Australian national who was quadriplegic. He requested the care facility let him die but it refused. The court found that if a medical practitioner informed Rossiter of the consequences, it was lawful to cease providing nutrition and hydration to let him die.

 

United Kingdom

Airedale National Health Service Trust v Bland [1993] AC 789

Tony Bland was a U.K. citizen who was in a vegetative state for three years, following injuries suffered during the Hillsborough disaster. The hospital, with the consent of Bland’s parents, sought a declaration to enable it to lawfully discontinue Bland’s treatment. The High Court granted the application and allowed the hospital to turn off Bland’s life support machine.

 

Canada

Carter v. Canada (Attorney General), 2015 SCC 5

in 2015, the Supreme Court of Canada held that Canadians have a right to physician-assisted suicide. The court found that its criminalization was invalid on the basis that it was in breach of the right to life, liberty and security, as set out in section 7 of the Canadian Charter of Rights and Freedoms

The court held that a prohibition on physician-assisted suicide could deprive an individual of their life by forcing them to prematurely take their own life, fearing that they would later be incapable of doing so when their suffering was intolerable. It was also held that the prohibition stripped people the right to make decisions concerning their bodily integrity and medical care and thus infringes on their liberty. It also leaves them to endure intolerable suffering, which impinges on their security. It was held that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error, making absolute prohibition unjustifiable.

In order to legally obtain assistance to euthanise, patients must be a consenting adult, be suffering a 'grievous and irremediable condition' that causes 'endless suffering', be that physical or psychological. 

 

Updated 10 March 2015


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