SOUTH KOREA 
The first step for the last human right

Guest article by Da Hye Choi*

On December 28, 2023, the Korea Association of Right to Die (KARD)** and a group of lawyers jointly filed a constitutional complaint regarding Physician-Assisted Dying (PAD), i.e. physicians prescribing end-of-life medication which patients ingest themselves. The timing of submitting a constitutional complaint on PAD at the end of the year held significant meaning, intending to emphasize the significance of the end of life.

Past end-of-life landmark cases

Currently, in South Korea, only two end-of-life choice options, namely withdrawing life-sustaining treatment and palliative care, are legally permitted. Before the legalization of these, there were two crucial incidents known as the Boramae Hospital and Mrs. Kim cases. In 2004, a patient suffering from brain swelling after brain surgery, developing respiration difficulty, faced a situation where the spouse demanded discharge for economic reasons despite medical recommendations. The doctors, pressured by the demand, removed the artificial respirator, resulting in the patient's death due to respiratory failure. The court applied charges of murder to the spouse for arbitrary killing and to the doctors for assisting in the killing.

While this case involved discharge against medical recommendations, it is distinct from cases where discharge is warranted due to no prospect of recovery. Even though the patient had potential for recovery, the discharge was carried out against medical advice and treatment, leading to a change in the medical practice that had tolerated discharges with no prospects of recovery. The fear of legal consequences has made healthcare professionals reluctant to terminate life-sustaining treatments, even for patients with no chance of survival.

The next significant case occurred in 2009, involving the family of Mrs. Kim, an individual in a persistent vegetative state with artificial respiration. The Supreme Court ruled that, considering the essential nature of the patient's medical contract, the patient has the right to decide on medical treatment, including discontinuation of life-sustaining measures. This case paved the way for the 2016 law allowing the termination of life-sustaining treatments and the 2018 law concerning end-of-life decisions for patients in hospice and the dying process. These laws enabled the creation of advance directives or life-sustaining plans for the dying process and allowed discontinuation of life-sustaining treatments through agreement by at least two family members when the patient's wishes are unknown.

As of 2022, there is a proposed amendment to the law on end-of-life decisions. A major change concerns the withdrawal of life-sustaining treatment: the law intends to give this option also to patients whose death is not imminent and whose estimated life expectancy is less than 6 months. The amendment also introduces the concept of ”assisted dignified death”, allowing terminally ill patients to seek assistance from a doctor to end their lives. However, this bill has not been discussed in the National Assembly as of 2023 and it is in danger of being discarded.

As of last year, approximately 20% of all deaths in South Korea resulted from the discontinuation of life-sustaining treatments, with 60% of such decisions made by family members. The current lack of infrastructure for hospice palliative care contributes to the low utilization rate of hospice care, accounting for only 6% of all deaths.

The current constitutional complaint

On December 28, 2023, our association KARD, together with a group of lawyers, filed a constitutional complaint to urge legislative action and to trigger public debate on PAD. The complaint was brought forward by Myung-sik Lee (63), who wishes for PAD, and his daughter, seeking permission to support him for PAD. The Constitutional Court accepted the case for a formal judgment. Similar constitutional complaints were rejected in 2017 and 2018, with the court stating the need for societal consensus.

The purpose of this constitutional complaint is to advocate for legislation on PAD. The absence of laws allowing PAD infringes on the basic rights of those who desire it and their families, and the lack of proactive measures by the state violates the spirit of the constitution.

Mr. Lee, a patient with spinal cord atrophy, suffers severe pain day and night due to lower limb paralysis. Despite joining a Swiss organization for PAD, practical barriers prevent him from travelling such long distance. Moving alone is impossible, and if accompanied by his daughter, she could be penalized under Korean legal system for the crime of assisting in suicide.

These types of constitutional complaints usually take 1-2 years to reach a conclusion of the court, but with the request for a public hearing, it is anticipated that public attention will be raised. Additionally, a movie related to PAD was aired on February 7, and a drama featuring a famous actor addressing the same topic will be broadcast this year.

In anticipation of the upcoming discussion in South Korea, aligning with the filing of the constitutional complaint and the broadcast of related movies and dramas, significant expectations are set. According to a 2023 survey, 80% of Koreans hold the opinion that PAD should be allowed. However, Korea is currently in an unresolved state concerning various issues that need to be addressed for the acceptance of PAD, including the expansion of the overall healthcare system, insurance problems, and the establishment of infrastructure for hospice palliative care. In these circumstances, it is time to contemplate how to expand patient’s rights to choose, and the Korea Association of Right to Die will actively engage in various activities this year to promote societal consensus.

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* Da Hye Choi is the president of Korea Association of Right to Die (KARD)

** Established in 2022, the Korea Right to Die Association (KARD) currently has over 220 members and is the only Korean member organization affiliated with the World Federation of Right to Die Societies (WFRtDS). The association is recruiting members to support the legalization of Physician-Assisted Dying in South Korea and continue its activities.

Newsletter 2024-1-2-e