Germany’s Federal Constitutional Court
Euthanasia movements around the world have been given a boost by Germany’s Federal Constitutional Court. On Wednesday it handed down a long-awaited decision endorsing the legality of assisted suicide.
It ruled that a law banning suicide with professional assistance was unconstitutional, as it deprived terminally ill patients of “the right to a self-determined death”.
Judge Andreas Vosskuhle, of the Bundesverfassungsgericht, declared that this right included “the freedom to take one’s life and seek help doing so”.
Assisted suicide and euthanasia are deeply controversial in Germany because of its record of terrible human rights abuses under Hitler. The Nazi regime set up the Aktion T4 program of involuntary euthanasia under which hundreds of thousands of sick and disabled people were murdered legally. The government even promoted the cause of assisted suicide with movie melodramas like Ich Klage An (I Accuse).
The existing law, Paragraph 217 of Germany’s Criminal Code, was passed in 2015 to stop people from offering the kind of assisted suicide service that is legal in neighbouring Switzerland, whether it was remunerated or not. It still permitted assisted suicide for “altruistic motives”.
The government says it needs to study the ruling before redrafting the legislation. The court has conceded that some restrictions are still possible – as long as “sufficient space remains for the individual to exercise their right to a self-determined death and to pursue and carry out the decision to end their life on their own terms.”
The right-to-die movement, especially in western Europe, will be cock-a-hoop with this development. Portugal is on the brink of legalising euthanasia; the Spanish parliament is due to debate it later this year. Activists in countries like the United Kingdom and Sweden will use the court’s reasoning to push for change.
And this reasoning is even more radical than in the Netherlands and Belgium, where euthanasia has been legal since 2001 and 2002 respectively. As one observer summarised it, in Germany now “everyone has the right to suicide, regardless of age and illness.” Its highest court has not only decriminalised assised suicide; it has described suicide as a fundamental human right.
The decision as described in the court’s official press release (already translated into English) is an astonishing embrace of extreme libertarianism.
Suicide “must, in principle, be respected by state and society as an act of autonomous self-determination”. This notion, the court says, is consistent with the European Convention on Human Rights and decisions by the European Court of Human Rights. In fact, at the moment there is no consensus in Europe on this issue – but the Bundesverfassungsgericht’s decision will be a powerful influence on the judiciary in other countries.
We are not talking here about suicide as a last resort for unbearable pain. If that were the case, better palliative care would be the answer. But the court says that palliative care does not make suicide unnecessary because suicide is a right. “The right to a self-determined death is not limited to situations defined by external causes like serious or incurable illnesses, nor does it only apply in certain stages of life or illness. Rather, this right is guaranteed in all stages of a person’s existence.”
The implications of this are mind-boggling: patients with depression, patients with mental illness, prisoners serving a life sentence, people in the midst of romantic upheavals, teenagers who have failed exams, grandmothers who don’t want to burden their families, bankrupts, loners without families – all of them are eligible. How many Germans will end up dying every year?
Opponents of an unfettered right to suicide often argue that expressing your autonomy by destroying your autonomy is absurd. Wrong, says the court. “Rather, the self-determined act of ending one’s life is a direct, albeit final, expression of the pursuit of personal autonomy inherent in human dignity.”
Autonomy, in other words, is more important than life itself. “Where the protection of life runs counter to the protection of autonomy, it contradicts the central understanding of a community which places human dignity at the core of its order of values and thus commits itself to respecting and protecting the freedom of human personality as the highest value of its Constitution.”
What about the argument that legalised assisted suicide will promote it amongst vulnerable people? Too bad, says the court. “The aim of protecting third parties – e.g. by seeking to prevent suicide assistance from generating copycat behaviour and prompting others to follow suit – does not justify forcing the individual to accept that their right to suicide is effectively vitiated.”
However, no one can be forced to help someone commit suicide, the court says. And because most German doctors oppose it, there is obviously a legitimate need for commercial suicide-assistance services. The ruling opens the door for a ghoulish new industry of death doulas.
The government is entitled to create regulations to ensure the autonomy of people who want to die by suicide, the court says. But this does not include “requiring a diagnosis of incurable illness”. This is even more radical than legislation in Belgium and the Netherlands, where patients are supposed to be terminal. In Germany any reason will be sufficient: fear of illness or old age, romantic disappointments, professional failure, or just the feeling that life is no longer interesting.
The Bundesverfassungsgericht’s idea of liberty is familiar enough in the English-speaking world. Justice Anthony Kennedy, of the US Supreme Court, gave this its classic expression in 1992 in Planned Parenthood v Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” He used it to defend a woman’s right to abortion – she was free to declare that the unborn foetus growing within her was not a human life. Similar reflections have subsequently accompanied redefinitions of marriage, the legalisation of drugs, and gender self-identification.
Now the highest court in Europe’s cultural and economic powerhouse has decided that the highest, noblest, freest human choice is death. This is nihilism, pure and simple.
Isn’t it time to rethink this understanding of “liberty” if it leads us down this deep, dark rabbit hole?
Michael Cook is editor of MercatorNet