Freedom to Die: Germany’s Controversial High Court Decision on the Parameters of Personal Autonomy

By: Laura Stickney

            In February, Germany’s Federal Constitutional Court overturned the country’s ban on professionally assisted suicide.[1] Notably, the Court invalidated the criminal statute on all grounds, including when the subject is not terminally ill or undergoing incurable pain.[2] The decision has reignited an ongoing debate across Germany’s political spectrum and has even raised alarming holocaust memories among some Germans.[3] The issue is now in the hands of the legislature to better define the boundaries of citizens’ personal autonomy while protecting the public and the mentally unhealthy.

            In 2015, Germany passed Paragraph 217 of its Criminal Code to criminalize commercial endeavors that assist individuals with committing suicide. The paragraph provided three years’ imprisonment for “anyone who intends to promote the suicide of another, [or] who gives him or her the business opportunity to do so.”[4] Emphasizing the “business” portion of the preceding paragraph, it adds that “any person who does not act in a commercial manner . . . shall remain unpunished.”[5] Activists groups opposed to the legislation argued that it was not effective in stopping ill patients from seeking assisted suicide, they were just traveling to Switzerland or the Netherlands to do so.[6] The groups further argued that patients who were not capable of traveling were forced to seek assistance from family members.[7] Medical professionals opposed to the anti-assisted suicide legislation added that they believed Christian groups across Germany, namely the Protestant and Catholic churches, exerted considerable influence over the passing of Paragraph 217 despite Germany being a secular country. [8]

            However, Germany is hardly the only secular country to have a ban on assisted suicide. In the United States, only 10 of 50 state jurisdictions allow for assisted suicide.[9] All of these American jurisdictions allowing for assisted suicide, or “death with dignity,” require the individual to be a “mentally competent adult state resident who ha[s] a terminal illness with a confirmed prognosis of having 6 or fewer months [to live].”[10] The process behind American Death with Dignity Act is also no small feat, obliging “two physicians confirm[ing] the patient’s residency, diagnosis, prognosis, mental competence, and voluntariness of the request. Two waiting periods, the first between the oral requests, the second between receiving and filling the prescription, are required.”[11] This demonstrates the already comparable liberality of Germany’s statute, that did not mandate these extra processes.

            Nevertheless, the Constitutional Court invalidated Paragraph 217 because it infringed on rights that it found fundamental to citizens’ personal autonomy. In its ruling, the Court found that the German Constitution includes an unfettered right to a self-determined death.[12] In finding this right to be nearly absolute, the Court determined that services to assist in exercising this right could not constitutionally be restricted and cannot be limited to those that are seriously or incurably ill.[13] Thus, the right for self-termination is “guaranteed in all stages of a person’s life.”[14] However, the Court did say in its decision that some restrictions may be placed by the legislature for the purpose of protecting public health – the Court did not specify what these restrictions could look like.[15] Despite the ruling, however, doctors may not be required against their will to provide assistance in a patient’s suicide – but the patient may seek the assistance elsewhere.[16] It is now the job of the German legislature to determine the best course of action moving forward, and could likely take up to two years to properly draft a replacement law for Paragraph 217.[17]

            Unsurprisingly, many groups in Germany are uncomfortable with the Court’s decision and its complete lack of restrictions or legislative direction. Opponents of the decision argue “that expressing your autonomy by destroying your autonomy is absurd.”[18] They also point out the dangers to several demographics that may be tempted to take advantage of the unbound decision – “patients with depression [or other] mental illness, prisoners serving a life sentence, people in the midst of romantic upheavals, teenagers who have failed exams, grandmothers who don’t want to burden their families, bankrupts, loners without families.”[19] Under this new decision, all of these groups of people would be unquestionably allowed to seek commercial assistance in ending their own lives.[20] In response to these concerns, the Court states that “[t]he aim of protecting third parties – e.g. by seeking to prevent suicide assistance from generating copycat behavior and prompting others to follow suit – does not justify forcing the individual to accept that their right to suicide is effectively vitiated.”[21]

Many also find the decision troubling when accounting for Germany’s dark past. During the Holocaust, the Nazis exterminated over 200,000 mentally and physically disabled people under the guise of both voluntary and involuntary euthanasia.[22] With this in mind, many Germans are not yet comfortable with the German government’s endorsement of the commercialization of death.[23] Many also fear that elderly or disabled people may feel pressured into making the decision to seek suicide assistance to lessen financial and time burdens on their families.[24] Overall, opponents of the decision argue that it does more harm than good, as it benefits a few terminally ill people while putting thousands of others in danger.[25] The German legislature must now effectively balance the Court’s decision of personal autonomy and freedom with protecting the public.

#BlogPost #InternationalLaw #Germany #AssistedSuicide #LauraStickney

[1] Cassandra Maas, Germany Constitutional Court Overturns Ban on Professionally Assisted Suicide, Jurist (Feb. 26, 2020), https://www.jurist.org/news/2020/02/germany-constitutional-court-overturns-ban-on-professionally-assisted-suicide/.

[2] Id.

[3] See Michael Cook, Germany’s Top Court Endorses Right to Assisted Suicide, BioEdge (Feb. 29, 2020), https://www.bioedge.org/bioethics/germanys-high-court-endorses-a-right-to-assisted-suicide/13343.

[4] Germ. Crim. Code Para. 217.

[5] Id. (emphasis added).

[6] Germany’s Top Court Paves the Way for Assisted Suicide, DW (Feb. 27, 2020), https://www.dw.com/en/germanys-top-court-paves-the-way-for-assisted-suicide/a-52531371.

[7] Id.

[8] Id.

[9] See Death With Dignity, https://www.deathwithdignity.org/learn/death-with-dignity-acts/.

[10] Id.

[11] Id.

[12] German Court Repeals Ban on Assisted Suicide Services, The Guardian (Feb. 26, 2020), https://www.theguardian.com/society/2020/feb/26/german-court-repeals-ban-assisted-suicide-services.

[13] Stephen Delahunty, Germany’s Top Court Scraps Ban on Assisted Suicide, Sparking Dismay From Church Groups, Daily Mail (Feb. 26, 2020), https://www.dailymail.co.uk/news/article-8046785/Germanys-court-scraps-ban-assisted-suicide-sparking-dismay-church-groups.html.

[14] Id.

[15] Id.

[16] Germany Overturns Ban on Professionally Assisted Suicide, BBC (Feb. 26, 2020), https://www.bbc.com/news/world-europe-51643306.

[17] See Cook, supra note 3.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Delahunty, supra note 13.

[23] Id.

[24] BBC, supra note 16.

[25] Id.