After all, if we're saying that the laws create rights, then they're human rights. If they're human rights, then they have a universal application by virtue of our common humanity.
This is at the basis of a court case being heard by the European Court of Human Rights in respect to assisted suicide laws in Germany. More than three years ago the German Federal Institute charged with making decisions about applications for death inducing drugs refused an application. The gatekeeper role of this agency and, by default, the legality of any restrictions on a person's access to assisted suicide is now in question.
From the German DW website:
On Thursday, the European Court of Human Rights will decide whether the state may refuse to assist in a suicide. Germany's laws on assisted suicide draw a fine line between what's permitted, and what's not.
A simple fall changed Bettina Koch's life forever. The accident, in front of her own doorstep, left her completely paralyzed, reliant on a ventilator and constant nursing care.
It was a life Koch didn't want to live. Instead, she decided to commit suicide, at home, and so she requested an authorization from the Federal Institute for Drugs and Medical Devices for a lethal dose of medication. But the institute refused to grant her request.
On Thursday, the Strasbourg-based European Court of Human Rights (ECHR) will decide whether the institute infringed on Koch's right to respect for her private life by refusing her request, a right that is set forth in Article 8 of the European Convention of Human Rights. It is this article that Koch's husband, Ulrich, invoked when he lodged his complaint with the EHCR in December 2008.
This was more than three years after Koch succeeded in committing suicide - in Switzerland, assisted by an organization called Dignitas.
What's allowed, and what's not
In Germany, active assisted suicide is illegal. If a patient asks another person to assist him or her with committing suicide, the other person may not legally do so.
Patient's wishes are often not clear or specific enough
The same legal situation applies in all other European Union member states, except Belgium, the Netherlands and Luxembourg. In 2002, the Netherlands was the first country to allow doctors to actively assist with suicide, under certain conditions. A recent study by the university hospitals of Rotterdam and Amsterdam found that this legalization had not led to an increase in cases of euthanasia.
In Germany, forms of assisted suicide that don't fall in the category of active assisted suicide are legal. If doctors cease life-prolonging measures, for instance, according to a patient's written wishes - that's known as passive assisted suicide, and is not considered a criminal offense.
If a dying patient himself takes lethal drugs provided by someone else, that, too, is not illegal. However, a doctor could risk prosecution for violation of the German Pharmaceuticals Act.
A third form of assisted suicide, indirect assisted suicide, is also legal. This occurs when a doctor administers painkillers to a dying patient to ease his pain. Because painkillers slow breathing, this may lead to a respiratory arrest and death.
Oncologist Klaus Becker thinks that the legal forms of assisted suicide suffice. "As a doctor it's my duty to help my patients," he said. "It's not my duty to actively end a patient's life, even if I know he only has 10 days or two weeks to live."
Even so, in his 20 years on the job, Becker has experienced situations in which he would have wished a swifter death for his patient. "I can, of course, give painkillers to a patient who is in pain. By administering these drugs, I accept that a patient may die two or three days earlier than without the drugs."
The ECHR may redefine the extent to which the state can assist in a suicide
Hamburg-based lawyer Oliver Tolmein says while the laws on assisted suicide are really quite clear, one of the stumbling blocks is the so-called patient decree, by which a patient sets down a medical directive expressing his wishes as to how he wants to be cared for - or not - given a certain medical condition.
"The patient decree," explained Tolmein, "is meant to replace a declaration of will, if in a certain medical condition a patient is unable to declare his wishes."
But more often than not, says Tolmein, patient decrees are not clear or specific enough because a patient was not able to foresee the exact condition he would find himself in. "The decree may read something like, 'If I am unable to communicate, and that fact has been corroborated by two doctors, I do not wish any artificial measures to be taken to prolong my life,'" said Tolmein.
"What exactly does 'unable to communicate' mean? What if the patient can still bat his eyelids, is that 'able to communicate'?" he asked. "Also, the term 'artificial life-prolonging measures' is not clearly defined." He says when writing a decree, it's best to be as explicit as possible.
But Tolmein also sees room for improvement in other areas. He thinks the rights of patients to choose when to move from a senior citizen home to a hospice could be strengthened. Currently, health insurers often refuse to cover the costs of such a move. And in terms of medical care, he thinks doctors need much better training when learning to treat terminally ill patients.
Author: Kathrin Erdmann / ar
Editor: Martin Kuebler