INSIDE DIGNITAS
Who does life belong to?
About worldwide paternalism in assisted dying legislation

By Ludwig A. Minelli, attorney-at-law, Forch-Zurich; Founder and Secretary General of “DIGNITAS – To live with dignity – To die with dignity”

A few weeks ago, the Legislative Council on the Australian island of Tasmania unanimously voted in favour of an End-of-Life Choices (Voluntary Assisted Dying) Bill[1]. After Victoria and Western Australia, Tasmania is on its way to becoming the third state in Australia with such a law.

The laws of the Australian states are based on the Death with Dignity Act of the US State of Oregon, which has been in force since 27 October 1997. Since then, a growing number of other US states such as California and Colorado have passed similar laws or are in the process of preparing them.

However, as an eligibility criterion for assisted dying, most of these states require that one or more doctors certify that a person who wishes to end his or her life has a terminal illness and has only a few more months to live, usually six or twelve. A medical prognosis is therefore required in advance with regard to the remaining lifetime.

As the American writer Mark Twain (1835-1910) noted, it is difficult to make predictions – particularly about the future... While it is true that there is experience regarding life expectancy for certain diagnoses, no doctor can predict with certainty whether a patient will actually continue to live for another six months or more, or less[2].

Laws concerning the right to self-determination over the end of one's life, if based on the criterion of short life expectancy and thus on an uncertain parameter, breathe the spirit of paternalism and a patronising attitude. In the USA in particular, the religious-dogmatic rejection of personal decisions to end one's life also plays a role.

Such laws are clearly discriminating against individuals who suffer from an illness which is severely debilitating but leads to death slowly. In particular, these are patients suffering from chronic neurological diseases such as amyotrophic lateral sclerosis (progressive muscular atrophy with corresponding deficits), multiple sclerosis and Huntington's chorea, or a severe psychiatric illness.

These discriminatory and narrow eligibility criteria are a fundamental contradiction to the fact that an individual’s personal decision on the time and manner of his or her own end in life is a human right. This was confirmed by the European Court of Human Rights in 2011, in a case brought by DIGNITAS[3].

The narrow criteria also mean that severely suffering individuals continue to recur to unaccompanied ”do-it-yourself” suicide methods, with a high risk of failure[4] and with serious consequences for themselves and for third parties[5]; or, that they continue to turn to DIGNITAS, which involves having to travel abroad.

Behind the idea of making access to assisted dying dependent on a medical prognosis is the idea that a person’s life belongs to the state. The United States Supreme Court, in its decision of 25 June 1990 in the CRUZAN case against the Director of the Missouri Department of Health, stated, inter alia: “We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death.” In that case, a woman who had been seriously injured in a car accident should have been allowed to die in accordance with her previous wish, as witnessed by relatives, by removing her feeding tube; she had been in persistent vegetative state for more than seven years and had no prospect of regaining consciousness.

The enlightened view is that states are formed by the will of the people living in them. If the idea of property is used to describe the relationship between the people and the state, then the state belongs to all its citizens, not the other way round. It is well known that in many modern states, citizens wish to have extensive freedom of choice and self-determination, also regarding the end of their own lives. Obviously, the power circles of conservative politicians, medical and religious associations and lobbyists still know how to disregard this.

As much as the progress made by a growing number of countries with assisted dying laws is to be welcomed, it is wrong for them to assume that ending one's own life prematurely and self-determinedly requires “state permission” in the form of eligibility criteria defined by some sovereign body. The only acceptable view is the one expressed by the German Federal Constitutional Court on 26 February 2020 as follows[6]:

“In particular, the self-determined preservation of one's own personality presupposes that people may dispose of themselves according to their own standards and are not forced into forms of life that are inextricably opposed to their own self-image and identity. [...] The right to self-determined dying as an expression of personal freedom is not restricted to situations defined by others. In particular, the right to dispose of one's own life, which touches the innermost area of individual self-determination, is not limited to serious or incurable states of illness or certain phases of life and illness.”

It is therefore the task of free citizens to further develop the laws on assisted dying towards more personal freedom, since in many countries these are only seemingly progressive, and thus to overcome the remnants of paternalism and ultimately the outdated sovereign-subject relation.

***

[1] https://www.parliament.tas.gov.au/bills/pdf/30_of_2020.pdf?fbclid=IwAR1uzskZcIo-LuKp96PfnCMcm6Beebbk_ZQkzm1qa99374hvXh4fQqGPqJA

[2]This all the more so because medicine is not an exact science even in the view of those involved, as was recently stated by Prof. Dr. Reto Stocker, Head of the Institute for Anaesthesiology and Intensive Care Medicine at the Hirslanden Clinic in the programme ”Standpunkte Sonntagszeitung” of Swiss television on 8 November 2020. https://www.srf.ch/play/tv/sonntagszeitung-standpunkte/video/in-wuerde-leben-in-wuerde-sterben-staffel-2020-folge-1?urn=urn:srf:video:1b7f53f0-64c9-4a0e-bcf6-d6f87e816a43, minute 13:48; in German)

[3] Judgment by the European Court of Human Rights of 20 January 2011, application no. 31322/07, HAAS vs Switzerland; http://hudoc.echr.coe.int/eng?i=001-102939

[4] https://www.parlament.ch/de/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20011105 (in German)

[5] http://www.dignitas.ch/images/stories/pdf/studie-ph-der-preis-der-verzweiflung-aufsatz.pdf (in German)

[6] Judgment by the German Constitutional Court of 26 February 2020 - 2 BvR 2347/15 -, Rn. 1-343 http://www.bverfg.de/e/rs20200226_2bvr234715.html (in German); key findings of the judgment available in English in the court’s press release: https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-012.html

Newsletter 2020-4-2-e