Dignity and the “right to die”

By Liam Gibson   |   28 February 2024

There are two arguments that the euthanasia lobby consistently uses to promote its cause. The first claims that it is cruel for the law to condemn the terminally ill to agonising pain when their suffering could easily be ended. This tactic has been successful because it exploits our compassion for the suffering of others and simultaneously plays on the fear that someday we too might be faced with such suffering. While this emotional appeal is effective in promoting the idea, when so-called assisted dying is introduced, intractable pain is not the chief reason that the terminally ill seek to end their lives.

Oregon was the first state in America to legalise assisted suicide, with the Death with Dignity Act coming into effect in 1998. Of the 23 people who received prescriptions for lethal drugs in its first year of operation, 15 died after taking them, 6 died from underlying illnesses, and 2 were still alive as of 1 January 1999. The decision to request assisted suicide, however, was not chiefly associated with intractable pain but rather with concerns about a loss of autonomy.¹

The number of people seeking a premature death has risen steadily since then, and in 2022, 431 people died under the Death with Dignity Act.² The three most frequently reported end-of-life concerns were the decreasing ability to participate in activities that made life enjoyable (at 89 per cent), loss of autonomy (at 86 per cent) and loss of dignity (at 62 per cent). Becoming a burden on family, friends and caregivers was fourth (at 46.4 per cent), while concern over adequate pain control was sixth, with only 31.3 per cent citing that as the reason for their decision.

Good palliative care can control pain. In 2019, a group of doctors opposed to the legalisation of “voluntary assistance in dying” in Western Australia noted that it was no coincidence that states with the worst access to palliative care were often the most supportive of euthanasia.³ Although fear of suffering has helped to build support among the general public, it is the second argument that has been influential with the courts. This is the radical libertarian view of autonomy, which claims that every individual has the right to decide to end his or her own life. 

It was by adopting this view that the judges in the European Court of Human Rights have gradually constructed a right to die.⁴ Having invoked Article 8, the right to private life, to permit abortion, the Court has used the same logic to create a legal environment in which the elderly, sick and disabled can lawfully be killed. In a grotesque distortion of human rights, the European Convention, which was explicitly intended to prevent any re-emergence of Nazi Germany’s euthanasia programme, is now being used to strike down laws prohibiting assisted suicide.

Case 2BvR 2347/15 

On 26 February 2020, Germany’s Federal Constitutional Court ruled that the section of the Criminal Code prohibiting commercial assisted suicide services was in breach of the Grundgesetz,⁵ the Basic Law, and therefore void.⁶ It found that the free development of personality guaranteed by Article 2(1), in conjunction with Article 1 declaring human dignity to be inviolable, recognised a right to commit suicide. While section 217 did not forbid assisted suicide completely, the court found that the law effectively made it unobtainable. Individuals whose doctors would not facilitate their suicide, it argued, would be unable to exercise the right to determine the time of their own death. It concluded, therefore, that it was unconstitutional to prevent businesses from offering the necessary assistance based on payment. It stated:

“The right to a self-determined death is not limited to situations defined by external causes like serious or incurable illnesses, nor does it only apply in certain stages of life or illness. Rather, this right is guaranteed in all stages of a person’s existence. Restricting the scope of protection to specific causes or motives would essentially amount to a substantive evaluation, and thereby predetermination, of the motives of the person seeking to end their own life, which is alien to the Basic Law’s notion of freedom.”⁷

The Grundgesetz makes human dignity the basis of “inviolable and inalienable human rights”. Yet the vision of dignity presented in case 2BvR 2347/15 equates it solely with a radical autonomy which permits the renunciation of the “inalienable” right to life. This stands in marked contrast with the court’s previous interpretation of human dignity. In the 2006 ruling on section 14.3 of the Aviation Security Act, which authorised the German military to shoot down hijacked airliners (and therefore kill their passengers), the court stated:

“Human life is the vital basis of human dignity as the essential constitutive principle, and as the supreme value, of the constitution…; 109, 279 (311)). All human beings possess this dignity as persons, irrespective of their qualities, their physical or mental state, their achievements and their social status…; 96, 375 (399)). It cannot be taken away from any human being. What can be violated, however, is the claim to respect which results from it… This applies irrespective, inter alia, of the probable duration of the individual human life (see BVerfGE 30, 173 [94] on the human being’s claim to respect of his or her dignity even after death).”⁸ (Emphasis added)

Of course, unlike hostages on a hijacked plane, the victims of assisted suicide consent to the taking of their lives. However, the court had previously held that consent does not absolve a violation of human dignity. Nor is it possible to claim that a culture of assisted suicide only affects the status of the individual involved and not human beings collectively. As with the right to liberty, the voluntary renunciation of the right to life means it ceases to be inalienable and the understanding of a human right once altered, is altered for everyone.

When the German Constitution was ratified in 1949, dignity was seen as the “pre-positive” absolute legal value adopted in perpetuity to act as the dam that would hold back the socio-political forces which overtook Germany during the Nazi era. Personal autonomy, however, presents a far less formidable obstacle to the abuse of state power than the concept of inviolable human dignity, invoked by the authors of the Grundgesetz.

And despite the court’s assertion that assisted suicide services are not required solely for the ill, infirm or disabled, its discussion is framed in terms of the compliance of the medical profession, palliative care, access to controlled drugs and so on. The underlying assumption is that assisted suicide is a medical issue. This ruling illustrates Anatole France’s ironic aphorism about the unequal impact of ostensibly equal laws: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”⁹ Just as the legalisation of infanticide would present a much greater danger to disabled children, the legalisation of assisted suicide inevitably has a disproportionate impact on the most vulnerable individuals.

Patient autonomy

Within the medical profession, human dignity is widely considered to be indistinguishable from patient autonomy. In practical terms, however, it amounts to ensuring the patient’s informed consent, that is, a completely voluntary decision based on a full understanding of the relevant data. British philosopher Onora O’Neill sums up the problem this way: 

“Some sociologists of medicine have suggested that the appeal of autonomy, understood as individual independence, in medical ethics is that it gives only the illusion of challenging professional authority, while in fact leaving that authority largely intact. The autonomous patient is not actually going to be allowed to determine his or her own treatment. He or she is only going [to] be allowed to accept or refuse treatment proposed by professionals: the cash value of what is termed ‘patient autonomy’ is a right to refuse treatment that is offered, a right that is costly to exercise where there are few or no other options of treatment.”¹⁰

The evidence indicates that autonomy is too susceptible to external influences to provide robust protection for vulnerable groups such as the profoundly disabled. In Geronticide: Killing the Elderly, Mike Brogden shows that, in practice, personal autonomy is not a decisive factor for Dutch physicians when they euthanise their patients. 

“This is supported by the finding that 1,000 people actually had their lives terminated without an explicit request. In many cases, it is the condition of the patient, not the request, which is the real ground for euthanasia…”¹¹

The example of the Netherlands, which went down this path decades before the rest of Europe, should serve as a warning to lawmakers in France, England, Scotland and the Irish Republic as they debate proposals to legalise assisted suicide in the name of personal freedom. 

“Paradoxically, the jurisprudential ‘legality’ of euthanasia that was fought for by advocates of voluntary euthanasia on the basis of the principle of autonomy and self-determination of patients, actually has increased the paternalistic power of the medical profession above its last limit, above the law.”¹²

The understanding of human dignity has undergone considerable change since the Grundgesetz and the Universal Declaration of Human Rights 75 years ago. The increasing emphasis placed on autonomy has allowed the inalienable aspect of human dignity to be continually marginalised. The medicalisation of society, that is, the growing dominance of medical technology in more and more areas of life, has also contributed to the promotion of autonomy. And yet for most patients, the significance of informed consent measures is questionable since doctors cannot be compelled to take any action they do not consider to be in a patient’s best interests, including the provision of life-sustaining hydration and nutrition. For the profoundly disabled and other incapacitated patients, the safeguard of personal autonomy offers virtually no protection when compared with a human rights obligation to respect intrinsic dignity and the right to life. 

Sadly, experience shows that those who argue for a right to “die with dignity” based on personal autonomy will ultimately destroy the very freedom they claim to promote.

Notes

1. Compared with a control group of patients who died from similar illnesses but did not receive prescriptions for lethal drugs, those requesting assisted suicide were much more likely to be concerned with loss of autonomy. The odds ratio was 7.3 (95 per cent confidence interval of 1.5 compared to 35.9). See Arthur E Chin et al, “Legalized physician-assisted suicide in Oregon — the first year’s experience”, NEJ Med, (1999) 340, 7, 577–83.

2. Oregon Health Authority, Public Health Division, Center for Health Statistics, Oregon Death with Dignity Act 2022 Data Summary, 8 March 2023.

3. Nathan Hondros “West Australians should not ponder euthanasia due to lack of care: End of life specialists”, WA Today, Perth, Australia, 28 August 2019.

4. Gregor Puppinck and Claire de La Hougue, “The right to assisted suicide in the case law of the European Court of Human Rights”, (2014) Int J Human Rights, 18, 7–8, 735–755. 

5. “The Parliamentary Council, meeting in public session at Bonn am Rhein on 23 May 1949, confirmed that the Basic Law for the Federal Republic of Germany, which was adopted by the Parliamentary Council on 8 May 1949, was ratified in the week of 16 to 22 May 1949…” https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html

6. “Criminalisation of assisted suicide services unconstitutional”, Press Release No 12/2020 26 February 2020. Judgment of 26 February 2020, 2 BvR 2347/15, 2 BvR 2527/16, 2 BvR 2354/16, 2 BvR 1593/16, 2 BvR 1261/16, 2 BvR 651/16.

7. Ibid. 1, a) bb).

8. Judgment of the First Senate of 15 February 2006, 1 BvR 357/05, 119.

9. Anatole France, The Red Lily cited by Andrew Sepielli, “The Law’s Majestic Equality” Law & Philosophy [2013] 32, 6, 673–700, p 673.

10. Onora O’Neill, Autonomy and Trust in Bioethics (CUP, 2004) p 26.

11. Mike Brogden, Geronticide: Killing the Elderly (Jessica Kingsley, 2001) p 170.

12. Jos M Welie, “The Medical Exception: Physicians, Euthanasia and the Dutch Criminal Law” (1992), 17 J Med & Phil 419, p 435.