FRANCE
Free decision-making at the end of life: Tactics of deterrence and politicians out of touch with citizens – a critical commentary

When it comes to self-determination with regard to the end of one's own life, quite a lot has happened in Switzerland's neighbouring countries in recent years. In Germany, a remarkable judgment by the Federal Constitutional Court in February this year lifted the ban on repeated and thus professional assistance in suicide, which had been in force since 2015. In Austria, the judiciary will soon deal with a constitutional complaint commissioned by DIGNITAS, which demands the right to a self-determined end to life. In Italy, through two court cases and on the base of a judgment by the Constitutional Court, it was possible to achieve that, under certain conditions, suicide assistance for seriously ill persons who suffer intolerably is no longer punishable.

In France, freedom is barely making any headway though. Some progress has been made in recent years concerning living wills, the discontinuation of life-supporting measures, and in palliative care. However, the country is still struggling to legally allow suicide assistance or voluntary euthanasia. Proposals for legislation by various organisations and activist groups have not yet achieved their goal.

A basic problem of the current political and public discourse in France is the frequent narrowing down of the subject to voluntary euthanasia (which is prohibited in Switzerland and Germany), to the medical field and to cases of seriously ill persons who are near the end of their lives. This comes as a bit of a surprise in a country committed to secularism and propagating freedom. In the political and public discourse, the personal freedom of citizens to end their own lives and the duty of the state to guarantee this right are hardly ever discussed.

A glance at French laws shows that the self-determined end of life, especially suicide, is still subject to many taboos. Those who want to end their lives seem to be fundamentally suspected of being either incapable of judgment or mentally ill. Although suicide is not prohibited, granting access to information about suicide methods is punishable; a person who is informed about another person's suicide intentions but does not “save” that person can be punished for failure to provide assistance, and persons who want to end their lives can be placed in psychiatric custody under the pretext of protecting their lives.

Upholding the taboo is highly problematic. It curtails self-determination and free decision-making of citizens in a paternalistic manner and prevents open-outcome counselling on questions concerning the end of one's own life. Suicide prevention at all costs, without examining individual needs and wishes. This makes an open debate on a truly self-determined end of life virtually impossible. The country, governed by politicians who are out of touch with its citizens, avoids the issue consistently and by all means. Issues related to end-of-life choices are delegated to bioethical bodies as a medical-moral problem – similar to Italy –, and France leans towards the model of voluntary euthanasia as practiced in Belgium since 2002; experiences from other countries, such as Canada and Switzerland, are ignored.

Ending one's own suffering and life and using professional help for this purpose is, however, primarily a question of human rights and freedoms, as confirmed by the European Court of Human Rights in 2011* and the German Federal Constitutional Court in February 2020**. This aspect is discussed far too rarely in France. Individuals and organisations that publicly stand up for this right and freedom, especially for suicide assistance, are viewed with suspicion by the authorities. At the end of 2019, house searches were carried out in France on more than 100 private individuals who had bought Nembutal (a trade name for sodium pentobarbital, the medication also used in professionally accompanied suicide assistance) on the Internet. Officially, this was part of an international police action to stop illegal medication trafficking from the USA. The premises of “Ultime Liberté”, a membership organization that has been working for many years to promote self-determination at the end of life, were also searched and various data and documents were confiscated.

The action is exemplary for the lack of freedom regarding the end of one’s own life, the unwillingness to deal with the topic and the tactics of deterrence by authorities. A large proportion of the private individuals affected by the searches were elderly people who want nothing more than to decide for themselves when their lives should end, and who want to do so in a safe manner. They know that they do not have this option in France and they are sensible not to expose themselves to the risk of a failed suicide attempt. The state with its prohibitions deprives them of their freedom of choice and thus encourages the illegal medication trafficking it claims to combat.

In view of the current situation, it will be some time before France at least draws level with other countries. It may be a long way through the courts, but in France too, it is probably the only way to enforce the right of the individual to decide the time and manner of their own end of life. This requires – as the example of Italy shows – courageous organisations, politicians and lawyers who are not afraid to take matters to the courts and, if necessary, all the way to the European Court of Human Rights. Surveys show that the citizens are on their side. Politicians and bioethical bodies would be well advised to base the drafting and evaluation of any legislation on international case law and the constitutional rights of citizens, and to draw on the practical experience of other countries where suicide assistance is permitted.

* 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

** 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)

Newsletter 2020-3-3-e