AUSTRIA 
Constitutional Court judgement: professional assistance in suicide to be further liberalised

Guest article by Heidemarie Hurtl, ÖGHL – Austrian Society for a Humane End of Life

At the beginning of 2022, the so-called “Sterbeverfügungsgesetz” (short for: “Federal Act on Establishing Advance Directives for Assistance in Suicide” / “Bundesgesetz über die Errichtung von Sterbeverfügungen”) came into force in Austria. The Act allows people residing in Austria to self-determinedly end their lives by assisted suicide under certain conditions. The hurdles that had to be overcome were initially very high – not least due to a lack of information and networks.

Much bureaucracy and few support options

Even after the procedures had become established, terminally ill people were usually able to set up an advance directive for assistance in suicide only with the help of committed family members or friends. Two certifying doctors have to be found – one of them trained in palliative care – as well as a notary public, and, finally, a pharmacy willing to dispense the lethal medication. Once the person finally has it in their hands, they are left alone with it, because the further procedure is not regulated by law.

In the process, there are numerous instances when an organisation such as the Austrian Society for a Humane End of Life (ÖGHL) could provide advice and assistance. However, the rigorous ban on advertising formulated in the law – de facto a prohibition to provide information – has severely restricted this possibility. Apart from neutral information, nothing of this sort was permitted so far, let alone any form of physical assistance.

ÖGHL takes legal action on behalf of those affected

In order to change this, to eliminate obvious injustices and to remove unnecessary hurdles, ÖGHL, with the support of DIGNITAS – To live with dignity – To die with dignity, filed a second application with the Austrian Constitutional Court (VfGH) in June 2023. The provisions formulated in the “Sterbeverfügungsgesetz” were challenged as unconstitutional on several points.

The court application was heard in autumn 2024. Representatives of the federal government, various professional associations, and ÖGHL were heard in detail. The statement by our Managing Director Dr Christina Kaneider, who as a palliative care physician was able to contribute her experience from clinical practice, was particularly forceful.

Satisfactory court judgement

After several months of deliberation, the Constitutional Court’s judgement shortly before Christmas was very favourable from ÖGHL's point of view. With these proceedings, we succeeded in having two key points of the law repealed, which will make access to professional suicide assistance and other end-of-life assistance options easier in future and will significantly expand our room for manoeuvre.

Firstly, the strict ban on advertising was dropped. Whereas previously, even promoting or offering suicide assistance was prohibited, from now on only (blatant) advertising is prohibited by law. “This means that ÖGHL can now actually offer suicide assistance and also talk about it”, says attorney-at-law Dr Wolfram Proksch, interpreting the judgement. ”Nothing stands in the way of providing factual information on the website, via newsletters or in brochures.” This means that ÖGHL is finally in a position to do meaningful work and support seriously suffering persons – far beyond the previous scope.

The second important change concerns the period of validity of an advance directive for assistance in suicide. It no longer has to be extended after one year, including the entire, complex procedure. This is a significant relief for people with a progressive illness who do not want to end their suffering immediately but would like to keep this option open at all times. This amendment will not come into force until June 2026, so the legislator has been granted a period for amendments. For ÖGHL as the applicant however, the repeal will take effect immediately in certain cases.

Misleading press headlines

In the media, the judgement, which is so important for Austria, was distorted in a bizarre way. “Assisted dying remains prohibited” was the headline in most of the daily newspapers along the lines of a press release by the Constitutional Court. Although this is legally correct, because the “Sterbeverfügungsgesetz” regulates the exceptions to the ban on assisting in suicide (similar to abortion), the press coverage caused confusion. It can be assumed that the wording was chosen out of consideration for the conservative forces in the country.

In its press release, the Constitutional Court also suggests that ÖGHL's applications were largely rejected. Indeed, the judges did not follow our arguments in some points. Section 77 of the Criminal Code (“Killing on demand”, meaning voluntary euthanasia) was not repealed. For this, the Constitutional Court referred to technical solutions which should allow people who are unable to move to open an infusion themselves. The Constitutional Court also did not repeal the ban on economic benefits which we had challenged, stating that appropriate remuneration is permitted anyway.

ÖGHL is preparing the next steps

We will now deal in-depth with the question of what exactly constitutes “appropriate remuneration” as well as with other subtleties: where is the boundary between offering and promoting? Where does factual information end and advertising begin? The courts have not yet ruled on this, so we have to use analogies as a guide and proceed with caution and care.

Overall, this judgement is an important step towards a self-determined end of life for people in Austria. “We are very pleased with the Constitutional Court’s decision,” commented Dr Christina Kaneider on the judgement. “Our main concerns have been taken into account, paving the way for meaningful association work for the benefit of those affected. From now on, this will also enable professional support.” We have already started to develop corresponding concepts.

Newsletter 2025-1-1-e