“Euthanasia” is a word of Greek origin and translates as “good death”. Nowadays this expression is used to define the power of a doctor to, if requested, end the life of an incurable patient in order to cease the pain. This practice is far from being accepted by various countries, of which a majority considers this practice illegal and an offense since it is translated as a wilful homicide.
However, when faced with an emerging societal demand, the issue on the legalization of euthanasia must be contemplated. As has been the case with some countries, such as the Netherlands (legalization in 2001) and Belgium (legalization in 2002). Indeed, we may observe that there is a willingness for individuals to have the chance to dispose of their bodies and to choose their means of dying. This need is related to the struggle for individual freedom, calling into question the social control of certain legitimate individual practices by the existence of specific laws.
Over all, this societal demand appears in a context where a patient’s life is shortened, in a medically supervised environment, despite the illegality of this action. It is therefore necessary, in such circumstances, for the Law to provide an answer. Indeed, isn’t the law supposed to be used as a dynamic instrument to effectively delineate these practices and societal demands?
As previously highlighted, most of the European countries still punish euthanasia and at the same time, each country has its own legislation concerning end-of-life patients. For instance, in France, the Leonetti law (2005) allows for patients to be under a deep and continuous sedation. This method consists in transitioning the near-to-death patient into a “deep sleep”, in addition to the cessation of treatment, leading to dehydration and malnutrition and eventually the death of the patient. Therefore, technically speaking, this method cannot be medically described as putting an end to the patient’s life. In many other countries, patients have the option to reject medical treatments and are, at the same time, prohibited from going after the medical institution. Thus, we may observe that, for some health-related aspects, the opinion of the patient is taken into consideration. Nevertheless, the patient is still unable to ask to be put to death, through the administration of a drug, to end his pain.
Isn’t it contradictory to allow methods that technically do not cause death, but which nevertheless result in death, without giving the option for a patient to die in a strictly defined and regulated medical setting? This question becomes even more relevant, when in countries where euthanasia is legal, it is regulated by very strict laws that, as opposed to the aforementioned suppression of medical therapies, allow to verify the technique and the context in which this process takes place and therefore ensure that the will of the patient has been respected.
At the heart of this legal debate, the opponents to the legalisation of euthanasia relate to the prohibition to kill while appealing to the right to live, a fundamental right protected by Article 2 of the European Convention on Human Rights. In the contrary, the defendants of euthanasia appeal to the right to respect the private life, protected by Article 8 of the same Convention, including the right to choose in what way we want to die. Furthermore, they also appeal to the prohibition to be subjected to inhuman and degrading treatments, as state by Article 3 of the Convention, defining the process of dying in pain as a demeaning method.
Confronted to the contradictions between these essential rights, and to the absence of a general agreement among the councils of the European countries, the European Court of Human Rights has adopted a conciliatory approach, it is neither in favour nor against the right to euthanasia, therefore leaving the European countries with a margin of appreciation as to how they want to regulate this controversy. This position underlines the sensibility of this topic, highlighting the current inability for the Court to give a binding answer. This attitude is often used by the Strasbourg jurisdiction when ethical issues arise that are subject to important controversies, this is particularly the case with abortion.
For what concerns the UN Human Rights Committee, they appear to have adopted a similar approach to the Court. In their report entitled “General Comment No.36” they introduce a new concept where the right to life, comprised in Article 6 of the International Covenant on Civil and Political Rights, doesn’t impede the legality of euthanasia, insinuating that such a right should be put in place, by the European countries, under strict surveillance. Even so, the Human Rights Committee leaves an exploitable margin for the implementation of euthanasia to these countries.
This lack of consensus among the European countries produces a context where patients wishing to end their lives have the opportunity to travel to other countries, where euthanasia is legal, to fulfil their wish. It often happens that suffering patients travel to Switzerland to benefit from a medically assisted suicide. We could characterise this phenomenon as “mortuary tourism”. This illustrates how these countries cannot impede patients from fulfilling their personal wishes. It therefore becomes hypocritical to keep avoiding the need to implement a legal framework concerning the administration of lethal substances to ease off pain. Not being able to forbid an individual’s choice, the last possibility that these countries have is to take into consideration the existing practices and make them as respectful as possible of the fundamental rights.
Traduzione di: Flaminia Sabbatucci
- Cour eur. D.H., arrêt Haas c. Suisse du 20 janvier 2001 (http://www/echr.coe.int)
- Cour eur. D.H., arrêt Lambert et autres c. France, du 5 juin 2015 (http://www.echr.coe.int)
- Y.H LELEU, G. GENICOT, « L’euthanasie en Belgique et aux Pays-bas », Rev. trim. dr. h., 2004, pp. 6 à 18.