The term euthanasia derives from two Greek words: eù, meaning ‘good’, and thanatos, meaning ‘death’. It thus etymologically refers to a gentle and easy death. Thus broadly understood, euthanasia seems to date back to immemorial times. In ancient Greece it appears to have been an accepted practice, advocated by several philosophers. Evidence also exists of euthanasia-related practices in non-Western areas of the world. Eventually, Christianity strongly defended the sanctity of life, thereby condemning both suicide and euthanasia.
2
The current debate on euthanasia is fuelled by medical and technological advances enabling physicians to artificially prolong life—along with pain and suffering—to the extent that the patients themselves may believe that life is no longer a benefit. The question today is whether patients in critical physical condition, such as an irreversible coma or a persistent vegetative state, or terminally ill patients suffering from incurable illnesses such as cancer, AIDS, or motor neurone disease, to name just a few, may be put to death in order to ‘mercifully’ bring their unbearable pain and suffering to an end.
3
Euthanasia may take several forms according to what the physician or other persons in control of the patient's care actually do in order to cause death. Some common distinctions and terms are thus preliminarily needed for the clarification of different forms of euthanasia.
4
Eugenic euthanasia refers to the notorious Nazi programme code-named ‘Aktion T 4’ secretly conducted during World War II which was aimed at ‘selecting’, ie eliminating, the so-called Lebensunwertes Leben (life unworthy of life), namely the weak and handicapped from society with a view to purportedly improving the human species. Such practices, which may amount to an international crime (→ International Criminal Law) and in particular to → genocide, are not at issue in the current debates surrounding euthanasia.
5
Economic euthanasia consists of eliminating those who are incapable of taking care of themselves, in particular the sick, deformed, senile, and mentally deficient, so as to relieve families and society of their financial burden. Like eugenic euthanasia, no one today seriously advocates this practice, though euthanasia critics stress that this result may covertly follow in practice once other apparently more reasonable forms of euthanasia are legalized.
6
Passive euthanasia is generally defined as letting the patient die by an omission, eg by ceasing or not starting life-saving treatment, including withdrawal of the necessary treatments to maintain life, failure to treat severely deformed new-born babies, or to retrieve heart, kidney, or lung support. It is generally claimed that in passive euthanasia the disease itself is the principal cause of death. In contrast, active euthanasia is understood as deliberately killing the patient by way of an act, usually a lethal injection. In this case, the principal cause of death is claimed to be the physician's conduct. The distinction between acts and omissions is often upheld by criminal law, which punishes actions more severely than omissions, though it attracts criticism from both opponents and advocates of euthanasia. Opponents of euthanasia argue that remaining inactive is ultimately a particular way of acting, and as a consequence they condemn both passive and active euthanasia. Advocates of euthanasia stress that leaving patients in extreme pain and agony for days or longer is hardly less ethically acceptable or beneficial to them than ending their life with a lethal injection; consequently they approve of passive and active euthanasia likewise.
7
In voluntary euthanasia a person puts an end to the lives of competent patients at their request or will. It is worth noting that in the current euthanasia debate, the consent of patients is always regarded as fundamental, their autonomy and self-determination being the strongest argument in favour of euthanasia. Concerns, however, have been expressed about the extent to which the patient's view is really free from external pressures. As a result, the consent of patients, though necessary, is not generally regarded as sufficient and strict conditions as to its scrutiny are generally called for. Conversely, in non-voluntary euthanasia a person puts an end to the lives of competent patients without their request or will, provided that the patient cannot and did not previously—by way of a living will, for example—express consent. This is the typical case for persons affected by chronic vegetative states or who require life support, as well as of deeply incapacitated persons or babies. Here, it is the physician, either alone or in concert with the patient's relatives, who decides on behalf of the patient. In turn, involuntary euthanasia occurs when death is caused against the patient's wish, ie when patients are indeed able to express their consent and use this ability precisely to dissent. This form of euthanasia is universally condemned.
8
Physician-assisted suicide consists of assisting an incurable and terminally-ill patient in committing suicide when patients are not physically capable of doing so by themselves. Some hold that physician-assisted suicide must be kept distinct from voluntary euthanasia on the grounds that while killing is one thing, it is quite another thing to help someone commit suicide. Others contend that physician-assisted suicide is ultimately equivalent to voluntary euthanasia for the same reasons as there is no significant difference between passive and active euthanasia. Though assisted suicide is generally understood as suicide aided by a physician, it may also take the form of suicide assisted by a third person, normally a patient's relative.
9
Finally, by indirect euthanasia is meant the causing of death through the prescription of drugs such as painkillers prescribed in large doses that, even if only aimed at making pain bearable, have in fact the effect of knowingly accelerating death. Here, death is a ‘secondary effect’ of the fight against pain.
B. Comparative National Legislation
10
In most countries euthanasia is prohibited in all its forms by norms incriminating murder and murder-related practices, including assistance to suicide. These norms have been repeatedly but unsuccessfully challenged in several countries by patients invoking constitutionally entrenched rights, and only a right to refuse treatment—even life-saving or life-sustaining—has been generally recognized in national courts. However, in recent years a few States have introduced legislation authorizing controlled euthanasia. This legislation has not infrequently been challenged on the basis of constitutionally entrenched rights. It is also a fact that most statistical inquiries show that → public opinion is generally in favour of at least certain forms of euthanasia. Some further examination of this legislation is necessary for a discussion on euthanasia under international law.
1. Australia
11
The first place which legalized euthanasia—both passive and active, as well as assisted suicide—was the Northern Territory of Australia which passed the Rights of the Terminally Ill Act 1995, which entered into force on 1 July 1996. The law was soon overturned by the Euthanasia Laws Act which was passed in the House of Representatives on 9 December 1996 and in the Senate on 25 March 1997. It was only applied to four terminally ill persons. The law included a number of safeguards and only applied to competent patients who had attained the age of 18 years when no palliative care options were reasonably available. In such cases, doctors at the patient's request were authorized to prescribe a lethal substance that would either be given to the patient for self-administration or be administered to the patient. The physician could at any time and for any reason, refuse to give such assistance.
2. United States
12
In the United States some forms of physician-assisted suicide have become legal, backed by a referendum, in Oregon since 1997, when the Oregon Death with Dignity Act (OrRevStat 127, 800–995) was passed. The law permits terminally-ill adults of sound mind who are residents of Oregon, with a prognosis of less than six months to live, to get a prescription medication for the purpose of taking their own life. The physician's prescription is subject to a number of conditions, including an oral request—reiterated no less than 15 days after making the initial request—and a written request by the patient, a second medical opinion, the patient's ability to make and communicate care decisions, the verification that the patient's judgment is not impaired by a psychiatric or psychological disorder or depression, and the patient's capacity to make an informed decision. In these cases patients may obtain a lethal dose of barbiturates and can proceed to commit suicide. Doctors are neither obliged to prescribe the lethal drugs, nor allowed to directly administer them. Patients may at any time revoke their request.
13
The Oregon law has been repeatedly challenged, most recently in 2001 by an Attorney General's Interpretive Rule stating that assisting suicide was not a ‘legitimate medical purpose’ under the Controlled Substances Act 1970 (21 USC 801). The Interpretive Rule itself, though, was challenged in federal court and in 2006 the US Supreme Court in Gonzales v Oregon ((17 January 2006) 546 US 243), confirmed that the Interpretive Rule was invalid because it went beyond the Attorney General's authority under the Controlled Substances Act.
3. The Netherlands
14
In the Netherlands euthanasia was introduced with the Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding (Termination of Life on Request and Assisted Suicide (Review Procedures) Act; (2001) Stb 194, 8), adopted on 12 April 2001 and entered into force on 1 April 2002. It applies to both active and passive euthanasia, and to assisted suicide if a number of conditions are met. Previously, euthanasia and assisted suicide were formally prohibited in the Netherlands under Arts 293 and 294 Penal Code (Neth), though they had been in fact tolerated for more than 20 years. Arts 293 and 294 Penal Code (Neth) are still applicable when the conditions set out by the law are not complied with. Such conditions include the existence of an informed, voluntary, and well-considered request, lasting and unbearable suffering without prospect of improvement, absence of other foreseeable alternative solutions, consultation with another independent physician. The law does not apply to withholding or withdrawal of life-prolonging treatment, to alleviation of pain and symptoms with an unintended life-shortening effect, to medical interventions to terminate life without the patient's explicit request, and to neonates. Minors aged 12 or older are covered by the law but stricter conditions must be met. Physicians have a duty to report cases to a Review Committee.
4. Belgium
15
In Belgium the Loi relative à l'euthanasie (Euthanasia Act (22 June 2002) Moniteur Belge 28515) authorizing controlled euthanasia was passed on 28 May 2002 and entered into force on 20 September 2002. Unlike Dutch law, Belgian law does not apply to assisted suicide. Requirements to be met under Art. 3 include: a patient's attainment of the age of majority or being an emancipated minor; constant and unbearable physical or mental suffering resulting in serious and incurable disorder caused by illness or accident; a physician's verification of the patient's capacity to express a voluntary, repeated, and carefully considered request; existence of a written, dated, and signed request; and consultation with another independent physician. In case the patient is unconscious, a patient's proxy may request the ceasing of medical treatment if proof is given that this request derives from the patient's expressed will. A federal commission is in charge of reviewing the actual implementation of the law. In case the conditions laid down by the law are not fulfilled, Arts 393, 394, and 397 Penal Code (Belg) on voluntary homicide, premeditated homicide, and poisoning, as well as Arts 422 bis and 422 ter Penal Code (Belg) on assisted suicide apply.
5. Switzerland
16
Art. 114 Penal Code (Switz) prohibits voluntary euthanasia, but a lesser sentence compared to homicide-related offenses is provided. Art. 115 Penal Code (Switz) prohibits incitement to commit suicide or assistance to suicide for selfish reasons. This provision is generally considered a contrario to allow assisted suicide if the author is not driven by a selfish motive. Art. 115 Penal Code (Switz) is general in scope, ie not limited—as legislation in other countries permitting assisted-suicide—to ill persons.
C. International Law
17
International law tends to prohibit euthanasia-related practices, particularly by sanctioning the right to life in several → human rights treaties (→ Life, Right to, International Protection), both universal and regional. In addition, the United Nations Convention on the Rights of Persons with Disabilities of 24 January 2007 prohibits certain forms of euthanasia (→ Disabled People, Non-Discrimination of). Amongst non-legally binding instruments prohibiting euthanasia the Recommendation 1418 on the Protection of the Human Rights and Dignity of the Terminally Ill and the Dying adopted by the Parliamentary Assembly of the → Council of Europe (COE) on 25 June 1999 deserves consideration (see paras 23–24 below).
1. The Right to Life and the Right to Dignity in Human Rights Treaties
18
Euthanasia is considered by its opponents as a form of murder, or aiding and abetting suicide, and incompatible with the right to life. The human rights treaty norms sanctioning the right to life are generally construed as implying not only a negative obligation of contracting States to arbitrarily deprive people of their life, but also a positive obligation to ensure that a person's life is not arbitrarily deprived by private individuals. It is unquestioned that this positive obligation comprises a duty to criminalize murder and murder-related practices. The question is whether both obligations extend to euthanasia or at least to some of its forms. If they do, legislations authorizing controlled euthanasia may be at variance with human rights treaty norms laying down the right to life.
19
Euthanasia is also frequently considered incompatible with the right to dignity (→ Human Dignity, International Protection), a right which is deemed to be generally recognized in both international law and national constitutions, as well as with the right to non-discrimination (→ Equality of Individuals), which is invariably set out in human rights treaties.
20
There were actually a number of concerns raised about the Dutch law legalizing euthanasia in the → Human Rights Committee 's Concluding Observations of 27 August 2001, relating to the report submitted by the Netherlands under Art. 40 → International Covenant on Civil and Political Rights (1966). According to the Human Rights Committee the system provided by Dutch law may fail to detect and prevent situations where undue pressure could lead to the conditions laid down by the statute being circumvented and, over time, such a practice may lead to routinization and insensitivity to the strict application of the requirements in a way not anticipated. The Human Rights Committee also observed that out of more than 2,000 cases reported to the Dutch Review Committee a negative assessment was given only in three cases. Furthermore, the Human Rights Committee was concerned that the new law was applicable to minors who had reached the age of 12 years.
2. The UN Convention on the Rights of Persons with Disabilities
21
While traditional human rights treaties lay down the right to life and are silent on the specific question of euthanasia, the recent UN Convention on the Rights of Persons with Disabilities adopted on 24 January 2007 and entered into force 3 May 2008, contains a specific provision expressly dealing with a euthanasia-related practice. Its Art. 25 (f) provides that States Parties shall ‘prevent discriminatory denial of health care or health services or food and fluids on the basis of disability’. This provision may be combined with Art. 10, which deals in general and traditional terms with the right to life of disabled persons. The UN Convention on the Rights of Persons with Disabilities is aimed at prohibiting discrimination against disabled persons, apparently including forms of eugenic and economic euthanasia, but is silent on the point of whether or to what extent the patient's consent to euthanasia may be relevant.
22
More explicit formulations against euthanasia were actually proposed during the drafting process, in particular by the United States and the → Holy See. For example, at the fourth session of the Ad Hoc Committee on 25 August 2004, the United States proposed adding to the then Draft Art. 8 on the right to life the sentence ‘… and shall ensure that disability or perceived quality of life shall not serve as a basis for infringement of the right to life’ (United Nations ‘Daily Summary of Discussions Related to Article 8’ <Show URL> (1 February 2009)), a proposal which was endorsed by the Holy See. In turn, the Holy See proposed in 2005 the insertion in Draft Art. 21 on the right to health and rehabilitation a sentence clearly aimed at prohibiting euthanasia: ‘States Parties shall: … k) ter ensure that persons with disabilities not be denied medical, life-preserving treatment, as well as nutrition and hydration, necessary to preserve or sustain that person's life, regardless of method of administration or perceived quality of life’ (United Nations‘Contributions by Governments: Holy See’<Show URL> (2 February 2009)). However, these proposals found no place in the final text.
3. COE Parliamentary Assembly Recommendation 1418
23
Euthanasia has been widely debated at the COE. Besides Recommendation No 779 on the Rights of the Sick and Dying and Resolution No 613 on the Rights of the Sick and Dying (both of 29 January 1976), of particular importance is Recommendation No 1418 on the Protection of the Human Rights and Dignity of the Terminally Ill and the Dying adopted by the COE Parliamentary Assembly on 25 June 1999. This recommendation calls upon Member States to provide in domestic law the necessary legal and social protection against threats to fundamental rights of the terminally ill or dying persons, such as insufficient access to palliative care, artificial prolongation of the dying process by either using disproportionate medical measures or by continuing treatment without a patient's consent, insufficient care and support for relatives and friends, insufficient allocation of funds and resources, and social discrimination. It further recommends that the Committee of Ministers encourage Member States to respect and protect the dignity of terminally ill or dying persons by a number of measures, including recognition of the right to comprehensive palliative care as well as the right to self-determination, and by upholding the prohibition against intentionally taking the life of terminally ill or dying persons. This last commitment is expressly linked to the right to life under Art. 2 → European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) and to the explicit assumption that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person and cannot of itself constitute a legal justification to carry out actions intended to bring about death.
24
In 2001, 2003, and 2005 attempts were unsuccessfully made to overturn Recommendation 1418 by the Social, Health and Family Affairs Committee of the COE by proposing draft resolutions recommending legislation which would exempt from prosecution doctors who agree to help terminally-ill patients to terminate their life. Such proposals were invariably opposed by the Committee on Legal Affairs and Human Rights of the COE and by the majority of the Parliamentary Assembly.
D. Case-law of the European Commission and Court of Human Rights
25
The most significant international case-law on euthanasia comes from the European Commission of Human Rights and more importantly from the → European Court of Human Rights (ECtHR).
26
In a decision of 4 July 1983, in the R v the United Kingdom case, the European Commission on Human Rights rejected as manifestly ill-founded an application submitted by a member of a pro-euthanasia organization who had been convicted and sentenced to 18 months' imprisonment for aiding and abetting suicide and for conspiring to aid and abet suicide. Subsequently, in Widmer v Switzerland ((ECommHR App 20427/92) (unreported)), which was decided on 10 February 1993, the European Commission declared inadmissible an application submitted by a person who claimed that his 82-year-old father had been the victim of passive euthanasia at the hospital where he had died. An investigation made by the Swiss authorities had found that the measures taken at the hospital were appropriate, though unsuccessful, and the case was dismissed. The European Commission noted that the Swiss Penal Code punished attacks on life, particularly when death originates in negligence or faulty improvidence. This was sufficient to conclude that the defendant State had complied with the positive obligation to protect life. The European Commission expressly observed that the Swiss lawmaker could not be criticized for having abstained specifically from introducing a provision punishing passive euthanasia.
27
To date, the international leading case on euthanasia-related practices, more precisely on assisted suicide, is the judgment of 29 April 2002, in Pretty v the United Kingdom. The ECtHR rejected an application submitted by Mrs Pretty, a woman suffering from motor neurone disease and paralysed from the neck downwards who wished to be assisted in committing suicide by her husband without him incurring in criminal responsibility. In her view, a British law prohibiting aiding and abetting in suicide, the Suicide Act 1961 (9 and 10 Eliz 2 c 60 (Eng)) was incompatible with Arts 2, 3, 8, 9, and 14 ECHR. The Court denied that Art. 2 ECHR had been violated, stating that the right to life cannot be interpreted—‘without a distortion of language’—as implying a right to die and that it was, rather, for the State to protect individuals against intentional deprivations of life. The ECtHR also denied that Art. 3 ECHR had been violated, given that the applicant was not degradingly treated by anyone, nor was she denied adequate care from the State medical authorities. Most interestingly, the ECtHR found that Art. 8 (1) ECHR applied, stating that it was ‘not prepared to exclude’ that the applicant's ‘choice to avoid what she considers will be an undignified and distressing end of her life’ does ‘constitute and interference with her right to respect for private life’ (Pretty v the United Kingdom, para. 67; → Privacy, Right to, International Protection), although the ECtHR denied that the Suicide Act of 1961 (9 and 10 Eliz 2 c 60 [Eng]) was incompatible with Art. 8 (2) ECHR since it was aimed at protecting the rights and liberties of others, particularly those more vulnerable in society. The ECtHR also denied that Art. 9 ECHR had been violated, holding that the applicant's claim did not involve a form of manifestation of a religion or belief given that the term ‘practice’ does not cover each act which is motivated or influenced by a religion or a belief (→ Religion or Belief, Freedom of, International Protection). Finally, the ECtHR rejected the relevance of Art. 14 ECHR arguing that the alleged discrimination between healthy persons who can lawfully take their own life and persons like the applicant who could do so only by means of the help of someone else was reasonable and justified, precisely because it was designed to protect the rights of others.
28
Other decisions of the ECtHR worth mentioning, some of which did not reach the stage of examination of the merits, include the decision of 26 October 2000 in the Sanles Sanles v Spain case, the judgment of 7 December 2000 in the Zoon v The Netherlands case, the decision of 18 April 2002 in the Litovchenko v Russia case, and the judgment of 9 March 2004 in the Glass v the United Kingdom case.
29
A more recent case, Ada Rossi and Others v Italy, decided by the ECtHR on 16 December 2008, deserves special consideration. Following a road-traffic accident that occurred in 1992, an Italian national by the name of EE had fallen into a coma. Her condition had subsequently developed into a vegetative state spastic tetraplegia and loss of all higher cognitive function. In 1999, her father and guardian, had gone to court seeking authorization to discontinue his daughter's artificial nutrition and hydration on the basis of his daughter's personality and the ideas on life and dignity she had allegedly expressed before the accident. In 2008, after many decisions of different courts, the Milan Court of Appeal finally granted the authorization. A number of other Italian nationals and associations—precisely six Italian nationals represented by their guardians, six associations whose membership consisted of the relatives and friends of severely disabled persons and of doctors, psychologists, and lawyers who assisted the person concerned, as well as a human rights association—then lodged an application with the ECtHR claiming that the authorization granted to EE constituted a precedent which might affect them. They invoked Arts 2, 3, and 6 (1) ECHR, respectively the right to life, prohibition of inhuman or degrading treatment, and right to a fair trial. The ECtHR declared the applications inadmissible on the grounds that the applicants had no direct links with EE and could not be said to be victims, neither direct nor potential, of the alleged violations.
E. Conclusion
30
It seems that an unconditional proposition that euthanasia is prohibited under international law as inherently contrary to the right to life or to the right to dignity is not strictly accurate and that the question of the admissibility of euthanasia under current international law needs some qualifications.
31
First, the right to life understood as prohibiting certain forms of life deprivation which may relate to extreme forms of euthanasia, such as genocide, is definitely part of contemporary international law. On the other hand, the right to life as envisaged in human rights treaties is not absolute, as witnessed by the fact that the → death penalty—as well as several other forms of life deprivation, including those resulting from legitimate acts of war—is generally not considered per se incompatible with the right to life. The inference of an absolute prohibition of euthanasia is even more problematic on the basis of the right to dignity, if account is taken of the evanescent content of such a right and of the fact that it is invariably invoked also by euthanasia advocates to support the exact opposite inference. Nor can one be unmindful that even if a prohibition of euthanasia were thus established, it might extend to certain forms of euthanasia and not to others. In fact, the UN Human Rights Committee did express grave concerns about the Dutch law legalizing euthanasia, but it did not state that euthanasia per se is inherently incompatible either with the right to life as sanctioned by Art. 6 International Covenant on Civil and Political Rights or with its other provisions.
32
Secondly, the 2007 UN Convention for the Protection of Persons with Disabilities does prohibit at least some extreme forms of euthanasia. The Convention, however, has too recently entered into force, and its actual impact on international law as a whole appears at present limited, at least as regards euthanasia. It also exclusively deals with certain specific forms of euthanasia, leaving room for conjecture as far as other forms are concerned. Admittedly, the Convention contains a provision sanctioning the right to life, but this provision is drafted in general terms and lends itself to the same interpretative uncertainties of similar provisions found in other human rights instruments.
33
Thirdly, undoubtedly Recommendation 1418 of the COE prohibits euthanasia, as defined therein. This recommendation is not legally binding and a substantial minority in the Parliamentary Assembly is strongly inclined towards overturning it. However, challenges against it have failed hitherto.
34
Finally, the ECtHR did hold that a law prohibiting assisted suicide did not raise or was not incompatible with Arts 2, 3, 8, 9, and 14 ECHR, but it did not state that a law authorizing controlled euthanasia is a contrario inherently incompatible with one or more of those provisions. Indeed, the ECtHR acknowledged that Art. 8 ECHR applies to assisted suicide, and that a law prohibiting such a practice legitimately pursued the aim of protecting the rights of others, in particular of the most vulnerable people in society. The ECtHR pointed out that in the specific case under consideration the challenged law was a proportional measure to ensure the attainment of that legitimate aim, but it did not rule out that under other circumstances national measures against euthanasia may turn out to be incompatible with Art. 8 ECHR. In fact, once admitted that Art. 8 ECHR applies to euthanasia, the ECtHR's reasoning is essentially grounded in a balance between the right to respect for private life, on the one hand, and other fundamental rights, including the right to life, on the other. Nothing in Pretty suggests that a definite solution exists as to the compatibility of euthanasia per se with fundamental human rights, including the right to life and the right to dignity. It clearly depends on the development of comparative national legislation in the Member States of the COE, and the ensuing → margin of appreciation the ECtHR will be inclined to accord to national authorities in the future, on the form of euthanasia under consideration and most importantly on the circumstances of the concrete case. Elements such as the stage of the illness, the determination of the patient, family circumstances and medical conditions, the precise wording of the specific national law at issue, and its actual implementation, seem to be more relevant than abstract reasoning on arguments ethically pro and against euthanasia per se.
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