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J U R I D I C U M
A Human Right to Die? The Legality of Euthanasia under the European Convention on Human Rights
Amanda Engström
VT 2020
RV600G Rättsvetenskaplig kandidatkurs med examensarbete, 30 högskolepoäng
Examinator: Adam Croon och Katalin Capannini-Kelemen Handledare: Joakim Nergelius
Summary This bachelor thesis examines whether there is a human right to die with assistance, so-called euthanasia, included in the European Convention on Human Rights (ECHR). It finds that a right to die is not expressly enumerated within the rights and freedoms set forth in the ECHR. Consequently, it investigates whether such a right derives from Article 2 or Article 8 of the Convention. This thesis further examines if there is a unanimity within the European Union regarding an individual’s possibility to decide over one’s death, by reviewing state practice of Sweden and the Netherlands. Eventually, it observes the main arguments in the legal debate concerning euthanasia and evaluates the possibility of establishing a common practice related to euthanasia within the Union.
With the use of a legal dogmatic method, this thesis identifies that Sweden prohibits active euthanasia and physician-assisted suicide due to the risk of abuses. However, acts of passive and indirect euthanasia are allowed as a last resort to alleviate suffering. Contrariwise, it finds that the Netherlands has decriminalised euthanasia and assisted suicide performed by doctors for the reason that a ban would generate an uncontrollable situation. It thus concludes that a consensus between the Union Member States is missing. As a consequence, this thesis analyses whether acts of euthanasia are legitimate or incompatible with Article 2 and Article 8 of the ECHR. It discovers that Article 2 is not be interpreted to contain a right to die and neither that such a right is enshrined in Article 8. Nevertheless, it finds that the European Court of Human Rights (ECtHR) has hesitated to determine whether the legality of euthanasia contravene with the Convention by referring to the margin of appreciation left to the Member States in matters related to moral questions.
When analysing the euthanasia debate, this thesis detects that the primary arguments are divided into two opposing principles, namely the assurance of personal autonomy against the protection of the human dignity of all individuals. By taking into consideration the reasoning for and against the lawfulness of euthanasia as well as the discretion given to the Member States, it finally concludes that it is impossible to institute a universal standard regarding euthanasia within the European Union at the present time. Nevertheless, it stresses that an examination of the pending application in Mortier v Belgium before the ECtHR could change the existing situation.
i Table of Contents
1. Introduction 1
1.1. Background 1 1.2. Purpose and Research Questions 2
1.3. Method and Material 2 1.4. Delimitations 3
2. Definitions 5
2.1. Euthanasia 5
2.2. The Beginning and End of Life 6 2.3. The Right to Life and Respect for Privacy 7 2.4. Margin of Appreciation 8 3. National Regulations of Euthanasia 10
3.1. Sweden 10 3.2. The Netherlands 11 4. The European Convention on Human Rights 14
4.1. A Right to Die under Article 2? 14 4.2. A Right to Die under Article 8? 16
5. The Reasoning Behind National Rules of Euthanasia 18
5.1. The Lawfulness of Euthanasia Reasoned in the Netherlands 18
5.2. The Current Situation in Sweden Concerning Euthanasia 19
6. Criticism and Arguments in Favour of a Legalisation of Euthanasia 22
7. Final Analysis: A Consistent Practice? 26
8. Conclusion 30
9. Table of Authorities 31
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1. Introduction Modern medicine provides for an increased possibility to cure diseases and prolong life, but also to hasten death by withdrawing life-sustaining treatments.1 With the extension of medical technology follows the question of who holds the right to decide over one’s body in matters related to life and death. Is such a choice assigned to you, your relatives, or the authorities in the state you live? The rapid development of technology increases the need to enact laws covering moral issues.2 However, are those matters to be answered nationally or internationally?
1.1. Background Euthanasia primarily raises concerns in terms of the enjoyment of the right to life, which is one of the most fundamental principles that has been established. It is a basis for the enjoyment of other rights and freedoms protected by several human rights instruments,3 of which the European Convention on Human Rights (ECHR) is not an exception.4 The right to life forms part of customary international law,5 and all forms of derogations are prohibited.6 Nonetheless, some restrictions may be justified, like the enforcement of death penalty and acts of force that are absolutely necessary. Euthanasia is not enumerated as a ground for justification,7 although it is executed in various states that have ratified the ECHR.8 The lawfulness of euthanasia has induced an expansion of disputes due to different moral beliefs and cultural norms that prevail in society.9 Numerous cases have been brought before the European Court of Human Rights (ECtHR) as a consequence of obscurities regarding the
1 Torbjörn Tännsjö, ‘Moral Dimensions’ (2015) BMJ 331, 689. 2 Richard Åkerman, ‘Är det min eller är det jag? Äganderätt till kroppen’ (2003) Häfte 7 SvJT 637, 651. 3 See Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended by Protocol Nos. 11 and 14) (adopted 4 November 1950, entered into force 3 September 1953) ETS 5, art 2 (ECHR); Charter of Fundamental Rights of the European Union [2012] OJ C 326/391, art 2; International Covenant of Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 6 (ICCPR); Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 3; Convention on the Rights of Persons with Disabilities: Resolution adopted by the General Assembly (adopted 24 January 2007, entered into force 8 May 2008) A/RES/61/106, art 10 (CRPD); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 6 (CRC); American Convention on Human Rights: “Pact of San Jose, Costa Rica” (adopted 22 November 1969, entered into force 18 July 1978), art 4 (ACHR); African Charter on Human and People’s Rights: (Banjul Charter) (adopted 27 June 1981, entered into force 21 October 1986) CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art 4 (ACHPR). 4 ECHR (n 3) art 2. 5 Niels Petersen, ‘Life, Right to, International Protection’ (October 2012) in Max Planck Encyclopedia of Public International Law (MPEPIL) (online edn) accessed 28 April 2020, para A 1-2. 6 See McCann and Others v the United Kingdom, App no 18984/91 (ECtHR, 27 September 1995) (McCann v the UK); UN Human Rights Committee, ‘General Comment 36: Article 6: Right to Life’ (3 September 2019) UN Doc CCPR/C/GC/36, para 2. 7 ECHR (n 3) art 2. 8 Statens Medicinsk-Etiska Råd, ‘Dödshjälp: En Kunskapssammanställning’ [The Swedish National Council on Medical Ethics, ‘Euthanasia: A State of Knowledge Report’ (own translation)] (2017) 5, 47 (SMER). 9 The Parliamentary Assembly of the Council of Europe, ‘Assistance to Patients at End of Life’ (9 February 2005) Doc. 10455, paras 3, 48 (Doc. 10455).
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legality of euthanasia under the ECHR.10 A clarification of the legal situation is thus needed in order to settle the controversies related to euthanasia within the European Union.11
1.2. Purpose and Research Questions The main purpose of this thesis is to investigate if there is a human right to die with assistance, so-called euthanasia, included in the ECHR. A review of national laws of two Members States of the European Union (EU) will be issued in order to examine whether there is a unanimity within the Union regarding individuals’ possibility to control one’s cessation of life. Additionally, this thesis will analyse whether a right to die should be incorporated into the ECHR, taking into consideration the legal debates on the matter. In order to reach the present purpose, the following questions have to be answered:
● Is it a right to die included in the right to life or in the right to respect for private and family life of the ECHR? ● How do Sweden and the Netherlands regulate euthanasia? And what are their motives for such a regulation? ● What are the main arguments in favour of respectively against decriminalisation of euthanasia? ● Is it possible to establish a universal standard related to euthanasia within the European Union?
1.3. Method and Material This thesis aims to examine if it is a human right to decide over one’s death within the ECHR by using a traditional legal dogmatic method. The purpose behind the method is to find the applicable law on a legal issue by using the generally accepted sources of law and interpret these sources on the problem in order to perceive a legal solution.12 Within this thesis, a comparative analysis will be conducted to examine state practices regarding euthanasia of two Member States of the European Union. A comparative method forms part of the legal dogmatic method, meaning that a clarification of the applicable legal sources in these countries will be identified as well.13 EU law and the judgments of the ECHR are superior to national sources of law, which means that national findings are examined in the light of the legal sources of the Union.14 Generally accepted sources of law derive from the Rule of Recognition in the national legal system of each state. The Rule of Recognition implies that sources become legally binding when legal professionals within a state, systematically and collectively evaluate these sources as judicial authoritative.15 Usually, sources of law are
10 See for example Pretty v the United Kingdom, App no 2346/02 (ECtHR, 29 April 2002) (Pretty v the UK); Haas v Switzerland, App no 31322/07 (ECtHR, 20 January 2011) (Haas v Switzerland); Lambert and Others v France, App no 46043/14 (ECtHR, 5 June 2015) (Lambert v France); Mortier v Belgium (communicated case), App no 78017/17 (ECtHR, January 2019) (Mortier v Belgium). 11 Doc. 10455 (n 9) para 48. 12 Jan Kleineman, ‘Rättsdogmatisk metod’ in Maria Nääv and Mauro Zamboni (red.), Juridisk Metodlära [Jan Kleineman, ‘Legal Dogmatic Method’ in Maria Nääv and Mauro Zamboni (eds), Legal Methodology (own translation)] (Studentlitteratur 2019) 21. 13 ibid 41. 14 Regarding the superiority of EU-law see Judgment of 15 July 1964, Flaminio Costa v E.N.E.L, C-6/64, ECLI:EU:C:1964:66, 593-594. For the binding force of ECtHR-judgments in Member States see ECHR (n 3) art 46. 15 Christian Dahlman, ‘Begreppet Rättskälla’ in Christian Dahlman and Lena Wahlberg, Juridiska Grundbegrepp - En Vänbok till David Reidhav [Christian Dahlman, ‘The Definition of a Legal Source’ in
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divided into primary sources and secondary sources.16 Primary sources of public international law are defined in Article 38 of the Statute of the International Court of Justice and comprise international conventions, customary international law, general principles of law, judicial decisions and doctrines of the most highly qualified publicists in the various states.17 These sources are binding on states.18 In turn, secondary sources like journals, dictionaries, and commentaries are non-binding materials but function as guidance when interpreting law.19
In this thesis, primary sources as the ECHR and case law from the ECtHR will be examined. General principles of EU law, like the principle of the margin of appreciation, the principle of proportionality, and the principle of personal autonomy, will also be dealt with. National legislation like the Swedish Criminal Code20 and the Dutch law on Termination of Life on Request and Assisted Suicide (Review Procedures) Act,21 as well as national case law from the highest judicial authorities, will be analysed. Additionally, several national decisions from lower courts will be used, even though it is debatable whether such case law serves as sources of law.22 In this thesis, decisions of lower courts will be treated as legal sources due to their historical significance with regard to euthanasia. In Sweden, preparatory works are considered valuable sources of law as they contain information about the intentions behind the laws. Preparatory works to Swedish laws will thus be examined for deeper comprehension.23 In order to understand and discuss the legal findings, secondary sources as books and journals regarding the States’ legal systems and recommendations from the Parliamentary Assembly of the Council of Europe will be used. When investigating Member States’ margin of appreciation under the right to life and the right to respect for private and family life, some international critique from the United Nations Human Rights Committee (HRC) will be reviewed. State responses to the HRC will also be studied, even though the Committee addresses human rights violations within the United Nations International Covenant on Civil and Political Rights.24 Furthermore, publications of four philosophers will be examined to address the main arguments within the euthanasia debate.
1.4. Delimitations Due to the limited scope, this bachelor thesis has been limited to cover acts of active voluntary and non-voluntary euthanasia, passive euthanasia, indirect euthanasia, assisted suicide and physician-assisted suicide, as they are considered legal in various countries within
Christian Dahlman and Lena Wahlberg, Basic Legal Concepts - A Friend’s Book to David Reidhav (own translation)] (Studentlitteratur 2019) 61-64. 16 Hoffman Marci and Rumsey Mary, International and Foreign Legal Research: A Course Book (2nd edn, BRILL 2012) 9-10. 17 Statute of the International Court of Justice (18 April 1946) art 38. Note that national decisions are not defined as primary sources in some jurisdictions. 18 Hoffman and Rumsey (n 16) 10. 19 ibid 14-15. 20 Brottsbalk (1962:700) [The Swedish Criminal Code (1962:700)] (Swedish Criminal Code). 21 Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding [Termination of Life on Request and Assisted Suicide (Review Procedures) Act] (adopted 12 April 2001, entered into force 1 April 2002) (Termination of Life Act). 22 Dahlman (n 15) 69-70. 23 Victoria Enkvist, Religionsfrihetens Rättsliga Ramar [Victoria Enkvist, Legal Framework of the Freedom of Religion (own translation] (Iustus 2013) 21. 24 United Nations Human Rights Office of the High Commissioner, ‘Human Rights Committee’
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the European Union.25 This thesis examines euthanasia requested by individuals suffering from physical and physiological diseases exclusively. As euthanasia involves death with the assistance of another person,26 acts of suicide will not be developed. Nevertheless, acts of suicide will be mentioned since they are occasionally associated with individuals’ desires to be subjected to euthanasia.27 The execution of abortions is neither investigated thoroughly but introduced to define when the right to life begins. In addition to abortions, this thesis will not cover acts of euthanasia that are enforced on individuals under the age of 18 years.28
The focus of this thesis is to investigate if euthanasia constitutes an unlawful act under the right to life and the right to respect for private and family life of the ECHR.29 Other human rights instruments will merely be cited to demonstrate the importance of these rights and to define when these provisions are applicable. The ECHR does not expressively contain a right to die. The right to life will thus be analysed in order to explore if it forms an opposite right. As Article 8 of the Convention has been found to protect personal autonomy,30 this provision has been relied on in numerous cases of euthanasia brought before the ECtHR.31 Accordingly, an examination of whether euthanasia could be protected under the right to respect for private and family life has to be issued. Furthermore, this thesis examines national norms regarding euthanasia in two Member States of the Union, as the Member States are considered to enjoy broad discretion when dealing with moral and ethical questions.32 In order to investigate the extensive material properly, two countries were a proportionate number. Other human rights provisions related to euthanasia are not included due to deficient case law from the ECtHR on this issue. However, the principles of self-determination and human dignity are mentioned, as they compose essential values in the legalisation debate.33 This thesis highlights the main arguments in the euthanasia debate as identified within the processed material, meaning that less common arguments have been excluded. Publications of four philosophers have been examined to understand the reasoning in the debate. These scholars were selected as their works address the issue of euthanasia and present the different views of the leading arguments within the debate.34
25 John Griffiths, Heleen Weyers and Maurice Adams, Euthanasia and the Law in Europe (Hart Publishing 2008) 2-3; Carlo Focarelli, ‘Euthanasia’ (October 2013) in Max Planck Encyclopedia of Public International Law (MPEPIL) (online edn) accessed 29 April 2020, paras 6-9. 26 Focarelli (n 25) para 3. 27 See for example Haas v Switzerland (n 10) [7]. 28 Note that the Netherlands allows euthanasia to be executed on minors under certain circumstances. For more information see Griffiths, Weyers and Adams (n 25) 105-106. 29 The right to life is enshrined in Article 2 of the ECHR and the right to respect for private and family life is protected under Article 8 of the ECHR (n 3). 30 Pretty v the UK (n 10) [61]. 31 See for example Pretty v the UK (n 10); Lambert v France (n 10); Haas v Switzerland (n 10). 32 See Lambert v France (n 10) [144]-[145]. 33 The Parliamentary Assembly of the Council of Europe, ‘Euthanasia’ (10 September 2003) Doc. 9898, paras 50, 55 (Doc. 9898). 34 See for example Ronald Dworkin,‘Euthanasia, Morality, and Law: Transcript’ (1998) 31 Loyola of Los Angeles Law Review 1147, 1147-1149; Peter Singer, Practical Ethics (2nd edn, CUP 1993) 175-217; Tännsjö (n 1) 689-691.
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2. Definitions In order to understand the content of this thesis, an explanation of what is included in the designation ‘euthanasia’ is needed. A clarification of when life begins and ceases pursuant to the ECHR and national legislation also needs to be introduced as euthanasia is linked with the end of life. In several cases related to the termination of life by request brought before the ECtHR,35 the applicants’ have relied on the right to life and the right to respect for private and family life (the right to private life) prescribed in the ECHR. A description of Member States’ obligations under these provisions is thus necessary in order to understand the reasoning of the Court in the presented cases of this thesis. For the same reason, the extent of the principle of the margin of appreciation needs to be defined.
2.1. Euthanasia The term ‘euthanasia’ has a wide meaning and refers to actions that generate a gentle and easy death of those who suffer from incurable disorders36 due to illness or accidents.37 Euthanasia is primarily performed on requests of individuals suffering from illnesses like cancer or motor neuron diseases. However, in a few countries, euthanasia is also granted to persons diagnosed with physiological disorders and dementia.38 The most recognised forms of euthanasia are classified as active euthanasia, passive euthanasia, indirect euthanasia, voluntary euthanasia, non-voluntary euthanasia, involuntary euthanasia, and assisted suicide.39 Active euthanasia refers to an intentional act of ending someone’s life,40 like the injection of a lethal dose of drugs, whereas passive euthanasia involves an act of omission as ceasing or refraining from initiate a medical treatment. Indirect euthanasia occurs when a patient passes away after being prescribed a large dose of medicine such as painkillers, which is not intended to kill but knowingly hastens death.41 These forms of euthanasia can either be voluntary, non-voluntary, or involuntary.42
Voluntary euthanasia means that a patient makes a request of dying by giving his or her consent, while non-voluntary euthanasia covers situations where relatives or doctors decide on behalf of the patient. Non-voluntary euthanasia may be actualised when a patient cannot give his or her consent due to coma or diseases where life-sustaining treatment is essential to prolong life. Involuntary euthanasia is universally prohibited, as it covers acts that cause death against the will of another person.43 As a result, involuntary euthanasia will not be examined in this thesis. Assisted suicide is frequently included in the notion of euthanasia and is described as an act where a third party intentionally assists a person to commit suicide when he is incapable of doing so by himself. Assisted suicide is defined as physician-assisted suicide if the assistant is a medical doctor.44
35 See for example Pretty v the UK (n 10); Lambert v France (n 10); Haas v Switzerland (n 10). 36 Oxford English Dictionary (2nd edn, 1989) ‘Euthanasia’, part 3. 37 SMER (n 8) 159-160. 38 ibid 15. Note that euthanasia due to mental disorders is allowed within the Netherlands, Belgium, and Switzerland, but not in Oregon and Washington. 39 Note that there have been other forms of euthanasia that are irrelevant in today’s debates, like ‘eugenic euthanasia’ and ‘economic euthanasia’. For further information see Focarelli (n 25) paras 4-5. 40 Penney Lewis, Assisted Dying and Legal Change (OUP 2007) 5. 41 Focarelli (n 25) paras 2-3. 42 Ani B. Satz, ‘The Case Against Assisted Suicide: For the Right to End-Of-Life Care: Reexamined’ (2002) John Hopkins University Press 1380, 1384. 43 Focarelli (n 25) paras 2-3. 44 Satz (n 42) 1384-1385.
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The aforementioned forms of euthanasia may constitute normal medical practice in various countries when performed by a doctor.45 In both Sweden and the Netherlands, a doctor may withdraw or abstain from initiating life-prolonging treatments with or without the consent of the patient. Doctors are able to make such decisions if the treatment causes more suffering than relief for the patient,46 and is regarded as medically insignificant.47 In Sweden, a doctor is required to consult other healthcare professionals before implementing his resolution,48 whereas a Dutch doctor should consider the prevailing medical standards.49 It is also possible for a patient to request ceasing or withholding from a life-sustaining treatment if the patient is fully aware of the consequences.50 Additionally, a healthcare professional is allowed to administer medication to the patient to ease suffering, even though it hastens death. A provision of medicine with a life-shortening effect is only admissible if there is no intention to kill.51 In cases when these acts cause the death of the patient, the passing will be regarded as a natural death.52
In this thesis, the general term euthanasia will be applied to cover voluntary and non-voluntary active euthanasia. The same designation will describe withholding and withdrawal of life-prolonging treatments (passive euthanasia), as well as the prescription of medical substances that shorten life (indirect euthanasia). Lastly, the phrase euthanasia will include assisted suicide and physician-assisted suicide. A distinction will be made for comprehension when relevant.
2.2. The Beginning and End of Life The right to life is safeguarded in various human rights treaties,53 but a reference when life actually arises is missing in the majority of instruments.54 A few human rights conventions refer to the inherent right to life,55 or that the right shall be respected ‘from the moment of conception’.56 In Vo v France,57 the ECtHR analysed whether an unborn child was granted protection under the right to life. The Court found that the provision does not directly cover an unborn child due to the legality of abortions but that the right may apply to an unborn child under certain circumstances. Moreover, the ECtHR announced that matters related to the beginning of life fall within Member States’ margin of appreciation, due to the lack of a
45 Griffiths, Weyers and Adams (n 25) 2. 46 Socialstyrelsen, ‘Socialstyrelsens Föreskrifter om Ändring i Föreskrifterna och Allmänna Råden (SOSFS 2011:7) om Livsuppehållande Behandling’ [The Swedish National Board of Health and Welfare, ‘The Swedish National Board of Health and Welfare’s Regulation of an Amendment in the Regulation and General Advice (SOSFS 2011:7) of Life-Sustaining Treatment (own translation)] (2017) HSLF-FS2017:26, ch 3 art 2-3 (SOSFS); Griffiths, Weyers and Adams (n 25) 59-60. 47 SMER (n 8) 64; Griffiths, Weyers and Adams (n 25) 59-60. 48 SOSFS (n 46) ch 3 art 2. 49 Griffiths, Weyers and Adams (n 25) 61. 50 SOSFS (n 46) ch 4 art 1; Griffiths, Weyers and Adams (n 25) 57-58. Note that a refusal of treatment made in writing when the patient was competent is absolute according to Dutch medical guidelines. 51 SMER (n 8) 67-69; Griffiths, Weyers and Adams (n 25) 65-66. 52 Griffiths, Weyers and Adams (n 25) 56. 53 See ECHR (n 3) art 2; Charter of the Fundamental Rights of the European Union (n 3) art 2; Universal Declaration on Human Rights (n 3) art 3; ICCPR (n 3) art 6; CRPD (n 3) art 10; CRC (n 3) art 6; ACHR (n 3) art 4; ACHPR (n 3) art 4. 54 Petersen (n 5) para B 8. 55 CRPD (n 3) art 10; CRC (n 3) art 6. 56 ACHR (n 3) art 4. 57 Vo v France [GC] App no 53924/00 (ECtHR, 8 July 2004) (Vo v France).
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universal consensus on the matter.58 Even though it is for national legislators to define when life begins, a unified clarification is missing in both Sweden and the Netherlands.59 By investigating legislation concerning abortion in both countries, some comprehension can be obtained. Within Sweden, an abortion can be lawfully realised until 18 weeks of gestation,60 whereas the Netherlands approve abortions until the 24th week.61 When that time has passed, an abortion may only be justified under fixed circumstances as the foetus can be viable outside the mother’s body.62
As with the question of when life begins, there is neither an international unanimity on when the moment of death occurs.63 In medicine, death historically appears with a permanent cessation of heartbeat. However, with the improvement of life-support techniques, death may also be declared when the brain no longer regulates the vital functions of the body.64 Consequently, national legislators have freedom in determining whether death occurs with the cessation of the heart functioning or the discontinuation of the brain control of vital functions. 65According to Dutch and Swedish legislation, death occurs when the entire function of the brain has ceased irreversibly.66
2.3. The Right to Life and Respect for Privacy Euthanasia raises issues under the right to life-provision enshrined in Article 2 of the ECHR. The provision demands state parties to protect the right through law.67 State parties are not required to incorporate the wording of the provision into national law68 but are forced to refrain from intentionally taking the lives of others. Additionally, the provision imposes a positive obligation on Member States to ensure the right to everyone within its jurisdiction by preventing criminal acts that may risk the lives of others.69 Although the right to life is regarded as an absolute right, it can be limited if death occurs as a consequence of a lawful act of war70 or as a result of the use of force that was absolutely necessary.71
58 Vo v France (n 57) [80]-[82]. 59 Carl Edvard Sturkell, ‘Lagstiftning om Livets Början’ in Statens Medicinsk-Etiska Råd, Etiska Vägmärken 10:Om Livets Början - En Debattskrift [Carl Edvard Sturkell, ‘Legislation of The Beginning of Life’ in The Swedish National Council on Medical Ethics, Ethical Signs 10: About the beginning of Life - A Written Debate (own translation)] (2000) 73. 60 Abortlag (1974:595) [The Swedish Abortion Law (1974:595) (own translation)] para 1. 61 The Government of Netherlands, ‘What is the time limit for having an abortion?’
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In several cases brought before the ECtHR, the right to private life-provision has been invoked in issues related to euthanasia.72 The right to private life, being present in Article 8 of the ECHR, obliges state parties to abstain from arbitrary interferences in individuals’ personal spheres.73 Article 8 also requires Member States to uphold everyone’s right to private life by preventing interventions of other individuals, which means that a positive obligation derives from the right. A state may, however, restrict the right if it is necessary in a democratic society due to a legitimate aim74 and if prescribed for by law.75 In order to limit a positive obligation, Member States are required to examine the interest of the individual and whether essential values are at issue. State parties also have to consider the possible controversies between social reality and law, as well as the impact of the interference on the state itself.76 When releasing their obligations under the right to private life, states enjoy a wide margin of appreciation.77
2.4. Margin of Appreciation The doctrine of the margin of appreciation has developed through the jurisprudence of the ECtHR and gives state parties discretion in how to realise and apply the rights protected in the ECHR. The doctrine aims to safeguard human rights on the national level because national authorities are regarded as more qualified than international courts to assess local needs. The extent of states’ appreciation depends on the right in question and the circumstances in each case.78A wide discretion is left to states when balancing conflicting interests between private parties and the public. Member States are also left a broad margin of appreciation when dealing with issues where a common practice within the Union is missing, as in matters relating to moral and ethical concerns.79
In terms of moral questions, the ECtHR has stipulated that the requirements vary depending on time and place as a result of the rapid changes of opinions in the matter. State parties are thus in a better position to assess the specific content of these questions and the necessity of a limitation or a punishment proposed to meet them.80 The Court has especially declared that a broad discretion is left to the Member States when managing questions that touch upon the nature of human life. However, Member States’ freedom is not unlimited,81 as it is in the functioning of the Court to evaluate whether national decisions are compatible with the Convention in the light of the discretion left to the states.82 In order to examine whether a national decision is consistent with states’ obligations under the ECHR, the Court has to apply
72 See for example Pretty v the UK (n 10); Haas v Switzerland (n 10). 73 ECHR (n 3) art 8. Note that the term ‘private life’ has a broad meaning and includes aspects of an individual’s integrity, like identification, as well as the right to enter relationships with others. It further guarantees personal autonomy. See Pretty v the UK (n 10) [61]. 74 ECHR (n 3) art 8(2). The provision stipulates that an interference may be legitimate if it is in the interest of national security, public safety, or the financial well-being of the nation. It may also be appropriate for the avoidance of disorder or crime, or for safeguarding health, morals, rights, or the freedom of others. 75 ECHR (n 3) art 8(2). 76 Hämäläinen v Finland [GC], App no 37359/09 (ECtHR, 16 July 2014) [66]. 77 Evans v the United Kingdom [GC], App no 6339/05 (ECtHR, 10 April 2007) [77] (Evans v the UK). 78 Council of Europe, Protocol No. 15 Amending the Convention on the Protection of Human Rights and Fundamental Freedoms: Explanatory Report (2013) CETS 213, para 9 (Protocol 15). 79 Evans v the UK (n 77) [77]. 80 Handyside v the United Kingdom, App no 5493/72 (ECtHR, 7 December 1976) [48]. 81 Open Door and Dublin Well Woman v Ireland, App nos 14234/88 and 14235/88 (ECtHR, 29 October 1992) [68] (Open Door v Ireland). 82 Protocol 15 (n 78) para 9.
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a proportionality test.83 The reason for the proportionality test is to examine whether there is a proper relationship between a particular aim to be achieved and the measures used to reach that objective. There are four parts included in the test, where the first one requires that an act pursues a legitimate aim. Thereafter, the Court assesses if the performed action is efficient to achieve this specific aim (suitability ) and whether it impaired the right as little as possible (necessity ). Finally, the limitation of the enjoyment of the right is weighed against the interest of achieving the pursued aim.84
83 Open Door v Ireland (n 81) [68]-[69]. 84 Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (OUP 2012) 8.
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3. National Regulations of Euthanasia In most countries around the world, euthanasia and assisted suicide are prohibited since they are recognised as murder-related practice.85 However, a few countries, such as the Netherlands authorise euthanasia and assisted suicide performed by doctors.86 Other countries outlaw euthanasia but decriminalise physician-assisted suicide.87 In turn, Sweden criminalise active euthanasia and physician-assisted suicide88 but has not enacted rules concerning assisted suicide.89
3.1. Sweden According to the Swedish Instrument of Government, everyone shall be protected from any physical violence by the public institutions.90A person that deprives another’s life shall be sentenced for murder for a minimum of ten years and a maximum of eighteen years, or to life imprisonment.91 If the act that led to the crime is considered to be less severe, imprisonment for homicide may be imposed instead.92A person aiding the crime can also be held responsible,93 as well as a person that causes the death of another by an act of negligence.94 The penalties apply regardless of the victim’s consent when the offence constitutes serious assaults or murder.95 Nevertheless, the penalty of the offence may be reduced if the act derives from a strong human sympathy,96 as in the case of mercy killings.97
In 1979, the Supreme Court of Sweden dealt with the question of euthanasia and assisted suicide for the first time when a woman named Berit Hedeby was accused of intentional deprivation of another person’s life. Ms. Hedeby had by request of the victim, a man almost fully paralysed due to sickness of multiple sclerosis, injected him with a high dose of insulin, and fed him with barbituric pills. The drugs were prescribed by a doctor that Ms. Hedeby had been in contact with on several occasions. The question for the Supreme Court to examine was whether the act of Ms. Hedeby constituted an illegal termination of life by request (active euthanasia) or could be regarded as assisted suicide, which was not unlawful under Swedish Criminal Law. During its investigation, the Supreme Court found that the distinction between
85 Lewis (n 40) 6-8. 86 SMER (n 8) 51-56. 87 For example Canada, Colombia and several states of America. Note that Switzerland criminalises euthanasia and assisted suicide, but may reduce the penalty imposed if the actor acted in sympathy. SMER (n 8) 48-60. 88 SOU 1993:40, Fri- och Rättighetsfrågor: Delbetänkande [SOU 1993:40, Freedom and Rights Issues: An Interim Report (own translation)] (1993) 200 (SOU 1993:40); SMER (n 8) 70. 89 Högsta Domstolen [The Supreme Court of Sweden], case no B 2553-19 (3 April 2020) [20]-[23] (Case 2553-19). 90 Kungörelse (1974:152) om beslutad ny regeringsform [The Instrument of Government (1974:152)] ch 2 art 6 (Swedish Instrument of Government). Note that this case concerns criminal liability when assisting an offence, and not euthanasia. 91 Swedish Criminal Code (n 20) ch 3 art 1. 92 ibid ch 3 art 2. The act of homicide lead to imprisonment for a minimum of six years and a maximum of ten years. 93 ibid ch 23 art 4. 94 ibid ch 3 art 7. 95 Prop. 1993/94:130, Ändringar i Brottsbalken m.m.: (Ansvarsfrihetsgrunder m.m.) [Prop. 1993/94:130, Amendments in the Swedish Criminal Code: (Discharges etc.) (own translation)] 37. There is a possibility to be exempted from criminal liability if the offence was made with the consent of the victim. However, this provision does not apply to serious crimes like murder, see Swedish Criminal Code (n 20) ch 24 ar. 7. 96 Swedish Criminal Code (n 20) ch 29 art 3(4). 97 NJA 1979 p 802 (The Supreme Court of Sweden) 810 (NJA 1979 p 802).
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euthanasia and assisted suicide depends on whether the accused acted independently in the act of the killing or not. The Supreme Court held that Ms. Hedeby could not evade from criminal liability since she generated the death by feeding and injecting the victim, even though he swallowed the pills by himself. As the victim had asked Ms. Hedeby for help and consented to the treatment, Ms. Hedeby was sentenced to imprisonment for homicide instead of murder. Additionally, the doctor who prescribed the medication to Ms. Hedeby was held responsible for aiding the crime and lost his medical license.98
The reasoning in the lawsuit of Ms. Hedeby is precedent concerning the prohibition of euthanasia within Sweden,99 and no other position regarding assisted suicide has been introduced. Suicide was decriminalised in Sweden in 1856.100 Accordingly, assisted suicide is not regarded as a crime under Swedish law as long as the person who intends to commit suicide is capable of making a qualified and thoughtful decision. An assistant who provides an instrument that the victim uses to realise the suicide is not liable for the death if the victim meets the requirements for independence.101 That means that assisting in the death of a person in a permanent vegetative state gives rise to a penalty, although the offence was committed in order to end the victim’s suffering. The penalty imposed may, however, be reduced since the killing can be regarded as an act of mercy.102 According to the Swedish Patient Act, doctors and healthcare professionals are required to carry out their work in accordance with proven experiences and diligent healthcare.103 A suicide assisted by a healthcare professional may, therefore, be considered contrary to his or her obligations under Swedish medical laws and eventually lead to the loss of his or her medical license or to a prosecution of misconduct.104 An amendment of the Swedish Criminal Code concerning suicide has been presented by the Government. The proposed provision criminalises acts of extortion that conduce another individual to commit suicide,105 but the provision does not specify whether assisted suicide will be covered by the amendment.106
3.2. The Netherlands In 2002, the Netherlands became the first country in the world to legalise euthanasia in a statute with the realisation of The Termination of Life by Request and Assisted Suicide (Review Procedures) Act (the Termination of Life Act). Nevertheless, euthanasia had been performed in the Country since the 1980s, and the Termination of Life Act rather became a codification of practice, which led to an amendment of the Dutch Criminal Code.107 During the 1970s, euthanasia became a matter of debate within the Country due to the changing social values regarding abortions and also by the improvement in medical technology. From now on, doctors were able to prolong life even if recovery was unattainable, which gave rise
98 NJA 1979 p 802 (n 97) 813-817. 99 See for example SOU 1993:40 (n 88) 200. 100 SOU 2019:32, Straffrättsligt skydd för barn som bevittnar brott mellan närstående samt mot uppmaning och annan psykisk påverkan att begå självmord [SOU 2019:32, Criminal Protection of Children who Witness Crime between Relatives and Protection against Acts of Extortion to Commit Suicide (own translation)] (2019) 223 (SOU 2019:32). 101 Case 2553-19 (n 89) [20]-[23]. 102 Svea Hovrätt [Svea Court of Appeal], case no B 2447-03 (28 May 2013). 103 Patientsäkerhetslag (2010:659) [The Swedish Patient Safety Act (2010:659) (own translation)] ch 6 art 1. 104 SMER (n 8) 70-71. 105 SOU 2019:32 (n 100) 41-43. 106 ibid 236. 107 Griffiths, Weyers and Adams (n 25) 29-32.
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to ethical questions.108 In 1973, the question about euthanasia was examined for one of the first times in the Postma case .109 The case concerned Ms. Postma, a doctor, who ended her paralysed mother’s life with an injection of morphine by a proposal of her mother. When investigating the case, the District Court of Leeuwarden found that a death caused after being given medicine for pain relief may be accepted under specified conditions.110 However, Ms. Postma was sentenced to one week imprisonment and one year of probation since the injection was instantly lethal and could not be seen as a reasonable means to reduce her mother’s pain.111
Another case of importance regarding the legal development of euthanasia in the Netherlands is the Wertheim case112 from 1981. Within this case, the District Court of Rotterdam examined if Ms. Wertheim had committed an act of murder or assisted in suicide. Ms. Wertheim intentionally fed a sick woman with sedative-tablets and alcohol in order to help her die. As a result of the sick woman’s desire to die, the District Court found that Ms. Wertheim had acted in duress and could not be convicted for murder. However, assisted suicide was illegal during the time of the judgment, and Ms. Wertheim was sentenced to one year of probation.113 The judgments of the Postma and the Wertheim cases led to the adoption of a national policy regarding prosecutions of euthanasia and assisted suicide.114 The national policy enumerated several criteria115 that a prosecutor had to examine in order to make a decision about prosecution. This action was the beginning of the legal development of euthanasia in Dutch law and amounted to the legitimation of euthanasia through the national case Schoonheim .116 In the Schoonheim case, the Dutch Supreme Court ruled that a doctor who is facing a situation of conflicts of duties, like the duty to respect life and the obligation to alleviate pain, does not breach the Dutch Criminal Code by carrying out an act of euthanasia. The Supreme Court relied on the justification ground in Article 40 of the Dutch Criminal Code,117 which stipulates that a person is innocent to an offence when committed under the duress of an irresistible force.118 In its judgment, the Supreme Court interpreted Article 40 to include the justification of a choice between two conflicting duties and freed the doctor from criminal responsibility as he had terminated the life of the patient in order to end her suffering.119
108 John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands (Amsterdam University Press 1998) 46. 109 Postma case, Rechtbank Leeuwarden (The District Court of Leeuwarden) 21 February 1973, reported in Nederlandse Jurisprudentie no 183:558. 110 The conditions referred to were: that the patient is incurable ill, in the terminal phase of his illness and experiences unbearable suffering. The patient should also have been expressed his wish to die and the treatment. Lastly, the treatment must be executed by a doctor. See Griffiths, Bood and Weyers (n 108) 52-53 111 Griffiths, Bood and Weyers (n 108) 52-53. 112 Wertheim case, Rechtbank Rotterdam (The District Court of Rotterdam) 1 December 1981, reported in Nederlandse Jurisprudentie no 63:223. 113 Griffiths, Bood and Weyers (n 108) 58-59. The sedative substance used in the killing was Vesparax-tablets. 114 ibid 61. 115 Prosecutors were required to investigate if there had been a voluntary and deliberate request of dying due to unbearable suffering and an involvement of a doctor who had deliberated with another professional. See Griffiths, Weyers and Adams (n 25) 30. 116 Schoonheim case, Hoge Raad (The Dutch Supreme Court) 27 November 1984, reported in Nederlandse Jurisprudentie no 106:451; Griffiths, Weyers and Adams (n 25) 30-31. 117 Griffiths, Weyers and Adams (n 25) 77. 118 Wetboek van Strafrecht [Criminal Code of the Kingdom of Netherlands] (entered into force 3 March 1881, amended 2012) art 40 (Dutch Criminal Code). 119 Griffiths, Weyers and Adams (n 25) 77.
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After the amendment of the Dutch Criminal Code, the termination of a person’s life by request is no longer prohibited if committed by a doctor who complies with the obligations of due care set out in Article 2 of the Termination of Life Act.120 The same assertion applies to a physician who intentionally assists in the suicide of another person.121 The Termination of Life Act declares that the requirements of due care comprise that the medical doctor is convinced that the desire of the patient was voluntary and deliberated and that the patient’s suffering was unbearable with no prospects of improvement.122 Whether the suffering is unbearable is defined by the individual concerned with regard to his perspectives and personality, rather than his medical condition. However, the patient’s alleged amount of suffering must be logical to a doctor and be consistent without the possibility to be cured.123 Furthermore, the patient has to be convinced that there are no other plausible solutions, even though the physician has informed the patient about his prospects. Prior to the action of euthanasia, the responsible doctor is required to consult another doctor who is going to meet the patient and give his own opinion about the fulfilment of the due care criteria. During the execution, the doctor must be observant and act in accordance with medical care.124 Lastly, the performing doctor has to notify the municipal pathologist that the patient did not die a ‘natural death’, as incorrect documentation of the cause of death is a criminal offence under Dutch law. As indicated, the act of euthanasia within the Netherlands can only be lawfully justified if committed by a medical doctor that complies with the due care criteria.125 Nevertheless, a patient has no right to euthanasia under Dutch law, meaning that a medical doctor has no obligation to perform euthanasia or assist a suicide requested by a patient. A physician is thus required to ensure accessibility of euthanasia to patients’ asking for it, by inform his patient about the procedure and to collaborate in the referral of the patient to another doctor.126
120 Dutch Criminal Code (n 118) art 293. 121 ibid art 294. 122 Termination of the Life Act (n 21) art 2(1). 123 Griffiths, Weyers and Adams (n 25) 89-91. 124 Termination of the Life Act (n 21) art 2(1). 125 Griffiths, Weyers and Adams (n 25) 82-83. 126 Griffiths, Bood and Weyers (n 108) 107-108.
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4. The European Convention on Human Rights As previously mentioned, several treaties safeguard the right to life127 and the right to private life.128 No derogation from the right to life is allowed, but some restrictions may be legitimate. 129 Apart from the death penalty, the ECHR enumerates a list of limitations that may be justified if absolutely necessary.130 The right to private life within the ECHR may also be restricted under certain conditions.131 However, none of the justification grounds refer to euthanasia or assisted suicide.132 Could that indicate that euthanasia is unlawful under the ECHR?
4.1. A Right to Die under Article 2? In the case Pretty v the United Kingdom (Pretty v the UK),133 the question of whether assisted suicide violates the right to life arose. The applicant, a woman with an unimpaired intellect who suffered from an incurable illness that made her completely paralysed, wished to commit suicide with assistance by her husband. Since assisted suicide was a criminal offence in national law, the applicant sought for immunity of her husband to help her die.134 The applicant’s request was dismissed by the British Director of Public Prosecutions and later by national courts.135As a result, the applicant submitted an application to the ECtHR,136 stating that the right to life comprises the right to end one’s life. The applicant further argued that states’ obligations to safeguard individuals from deprivation of life do not include protection from themselves.137 The ECtHR held that the right to life is an essential provision, as it entails the other rights and freedoms within the ECHR. It also found that Article 2 cannot be interpreted to grant the right to die since a state’s obligation under the provision is to protect life. Consequently, an individual is not empowered to choose death rather than life. As a result, the ECtHR declared that the State had not violated the right to life by denying the applicant to commit suicide with the assistance of her husband.138 According to the ECtHR, the right to life-provision imposes an obligation for states to form adequate procedures, ensuring that a decision to end one’s life is an independent choice by the individual concerned. Accordingly, Article 2 of the Convention protects individuals from perpetrating suicide if the decision is made due to constraint or incomprehension.139 To promote its reasoning in the judgment of Pretty v the UK, the ECtHR referred to a recommendation founded by the Parliamentary Assembly of the Council of Europe (the Parliamentary Assembly).140
127 See ECHR (n 3) art 2; Charter of the Fundamental Rights of the European Union (n 3) art 2; Universal Declaration on Human Rights (n 3) art 3; ICCPR (n 3) art 6; CRPD (n 3) art 10; CRC (n 3) art 6; ACHR (n 3) art 4; ACHPR (n 3) art 4. 128 See for example ECHR (n 3) art 8; ICCPR (n 3) art 17. 129 See ECHR (n 3) art 2(2) and art 15(2); ICCPR (n 3) art 6(2). 130 ECHR (n 3) art 2. 131 See text to (n 74); (n 75). 132 ECHR (n 3) art 2. 133 Pretty v the UK (n 10). 134 ibid [3]-[8]. 135 ibid [10]-[14]. 136 ibid [1]. 137 ibid [35]. 138 ibid [37]-[42]. 139 Haas v Switzerland (n 10) [58]. 140 Pretty v the UK (n 10) [37]-[42]. The ECtHR referred to The Parliamentary Assembly of the Council of Europe, ‘Protection of the Human Rights and Dignity of the Terminally Ill and the Dying’ (25 June 1999) REC 1418 (Recommendation 1418).
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In Recommendation 1418, the Parliamentary Assembly encouraged the Member States to respect and protect the dignity of incurably ill and dying individuals. Every state shall prevent acts that intentionally causes deaths of sick persons by ensuring that a wish to die may never authorise or justify an act of assisting in a death.141 Nevertheless, the Parliamentary Assembly declared that each patient should be ensured to obtain adequate pain-relief, although it may hasten death. All states should also refrain from providing life-prolonging treatment against the will of the patient.142 It further emphasised that the rapid development of medical technology could constitute threats to the rights of terminally ill patients. When providing a patient with life-sustaining treatment, doctors should evaluate the treatment with the suffering. 143 In the case Lambert and Others v France (Lambert v France),144 the ECtHR examined a doctor’s decision to withdraw nutrition and reduce the hydration of a patient in a vegetative state. The patient’s parents, sister, and half-brother145 claimed that such a decision violated the patient’s right to life,146 while the Government held that the treatment only sustained the life of the patient artificially, which did not correspond to his expressed wishes. The decision of the doctor was made in conjunction with the patient’s eight siblings and his wife.147 The ECtHR declared that the question before it concerned a withdrawal of medical treatment and not euthanasia,148 as national law did not allow intentional deprivation of life. However, French doctors were authorised to discontinue medical treatment if nothing more could be done to change the condition of the patient.149 Accordingly, the Court found that French law legalised decisions held by doctors similar to the one in the present case.150 The ECtHR also identified that the national proceedings leading to the resolution had been examined meticulously.151 The national judgment was thus consistent with states’ obligations under Article 2 of the Convention. As a result, the Court declared that the French Government did not breach the right to life.152 Does the aforementioned case law imply that a legalisation of euthanasia breaches states’ obligations under Article 2?
In Pretty v the UK, the applicant argued that an omission to recognise the right to die within Article 2 of the ECHR entails that the Member States allowing euthanasia violate their obligations to ensure the right to life.153 The ECtHR was cautious in its judgment154 and stressed that it was not for the Court to assess whether a national law that enables euthanasia contravene with states’ obligation to protect the right to life.155 It further stated that conflicting interests between personal freedom and the public must be resolved in light of the circumstances in each case. Although a law in a Member State allowing euthanasia would be
141 Recommendation 1418 (n 140) para 9 (c) (2-3). 142 ibid paras 8-9. 143 The Parliamentary Assembly of the Council of Europe, ‘Rights of the Sick and Dying’ (28 January 1976) REC 779, paras 1-6. 144 Lambert v France (n 10). 145 ibid [10]-[15]. 146 ibid [80]. 147 ibid [20]-[22]. 148 ibid [141]. 149 ibid [120]-[121]. 150 ibid [160]. 151 ibid [168]. 152 ibid [181]. 153 Pretty v the UK (n 10) [41]. 154 Guide to Article 2 (n 63) 20. 155 A similar standpoint has been taken in several judgments of the ECtHR. For instance, the ECtHR stated in the case of McCann v the UK, that it is not for the Convention institutions to investigate the compatibility of the ECHR in national laws. See McCann v the UK (n 6) [153].
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found compatible with the right to life, the applicant in the present case could not rely on that provision since the British Government does not believe that acts of euthanasia are in conformity with Article 2 of the ECHR.156 A similar conclusion was reached in Lambert v France when the Court held that complicated legal and ethical issues regarding the end of life correspond to states’ margin of appreciation. Member States enjoy discretion in determining whether or not to permit cessation of medical treatment and the adjustment governing such withdrawal. Moreover, states are authorised to evaluate the protection of a patient’s right to life and his right to personal autonomy.157 Nevertheless, the ECtHR concluded that such an appreciation is not limitless, as Member States are required to act in accordance with the principle of proportionality.158
The Parliamentary Assembly has stressed a need for the Court to analyse if euthanasia is incompatible with the right to life,159 but the ECtHR has so far hesitated to clarify the legal matter. However, a question regarding Member States’ obligations to protect individuals from euthanasia under Article 2 has been presented in a pending application before the Court. The application was submitted to the ECtHR by the son of a mother suffering from chronic depression. As a doctor terminated his mother’s life without the knowledge of her relatives, the applicant claimed that the State had failed to protect his mother’s life.160 Whether the ECtHR will address the issue and eventually determine if euthanasia is contrary to the protection of the right to life, remains thus to be seen.
4.2. A Right to Die under Article 8? The applicants’ in Pretty v the UK and in Lambert v France further relied on Article 8 of the ECHR.161 Ms. Pretty claimed that the Government’s refusal to grant her husband immunity, as well as the prohibition of assisted suicide in national law, infringed her right to private life.162 The ECtHR stressed that the term ‘private life’ has a wide distinction, which covers an individual’s physical and physiological identity. It also encompasses the right of an individual to carry out harmful and dangerous activities affecting the person concerned.163 By referring to a judgment of the Supreme Court of Canada,164 the ECtHR stipulated that national law interfered with the applicant’s right to decide over her body. For that reason, the Court proceeded to investigate the grounds of justification. As the prohibition of assisted suicide was prescribed by law to protect life and the right of others, the necessity requirement was examined exclusively.165 The Court found that the safety and health of the public prevail over the principle of personal autonomy, as a result of the apparent risk of abuse when an act of severe damage is involved. Moreover, it held that the rejection of immunity was proportionate since an exemption would be contrary to the Rule of Law.166
156 Pretty v the UK (n 10) [41]. 157 Lambert v France (n 10) [144]-[148]. 158 ibid [148]. See also the referred judgment of A, B and C v Ireland [GC], App no 25579/05 (ECtHR, 16 December 2010) [238]. 159 Doc. 9898 (n 33) ch II paras 7-8. 160 Mortier v Belgium (n 10). 161 See Pretty v the UK (n 10) [58]-[59]; Lambert v France (n 10) [80]. 162 Pretty v the UK (n 10) [58]. 163 ibid [61]-[62]. 164 See Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 (Supreme Court of Canada). 165 Pretty v the UK (n 10) [66]-[70]. 166 ibid [74]-[78].
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Another investigation concerning the right to private life was conducted in Haas v Switzerland.167 The applicant in that case, Mr. Haas, was suffering from a physiological disease and demanded Swiss authorities to prescribe him a lethal substance in order to end his life. As Mr. Haas’s request was dismissed,168 he claimed that his right under Article 8 of the ECHR had been violated since he was prevented from deciding the method and time of his own death.169 The ECtHR found that Article 8 comprises the right to determine when and how to end one’s life, as long as the individual is capable of making an independent and thoughtful decision.170 However, the Court declared that there had been no violation of the right, due to the need for preventive measures in countries that tolerate assisted suicide.171 A similar complaint was raised by the applicant in Koch v Germany,172 where the applicant claimed that the rejection of his wife’s request for a lethal substance of medication infringed their right to private life.173 The applicant’s wife was totally paralysed after an accident and had a strong desire to die in her home with the help of her husband.174 The Cologne Administrative Court dismissed the applicant’s application and stated that his right had not been violated, as the case concerned his wife. Moreover, the National Court held that a refusal of the substance was necessary due to the protection of health and life, as well as the protection of others.175 When examining the issue, the ECtHR found that the applicant was affected by the decision of the National Court and thus that the judgment interfered with Article 8 of the ECHR.176 Consequently, the ECtHR obliged national courts to review the merits of the applicant’s complaint and left the substance of the case unanswered.177
As with lawfulness of euthanasia under the right to life, it seems that the ECtHR has left the question of legality under the right to private life unresolved. Although it is evident that national preventions of euthanasia inflicts with individuals’ freedom under Article 8,178 states’ limitations of these rights are justified due to the risk of abuses.179 The Parliamentary Assembly has raised concerns that legislators ignore questions related to euthanasia, despite the fact that euthanasia is widely executed in Member States that prohibit it. Without clarifying issues related to the termination of life by request, potential abuses are impossible for states to control.180 In order to preserve the respect of the Rule of Law, the diversity between law and practice needs to be harmonised.181 The Parliamentary Assembly acknowledges, however, that it is impossible to institute a universal standard for all Member States to follow, due to their variety of moral, cultural, and religious values.182
167 Haas v Switzerland (n 10). 168 ibid [7]. 169 ibid [32]. 170 ibid [51]. 171 ibid [57]-[61]. 172 Koch v Germany, App no 497/09 (ECtHR, 19 July 2012) (Koch v Germany). 173 ibid [27]. Note that the applicant’s wife terminated her life before the application was lodged to the ECtHR. 174 ibid [8]-[9]. 175 ibid [16]-[18]. 176 ibid [50]-[54]. 177 ibid [71]-[72]. 178 See text to (n 165); (n 169); (n 176). 179 See text to (n 166); (n 171). 180 Doc. 9898 (n 33) ch II para 62. 181 ibid 1. 182 Doc. 10455 (n 9) ch 8 paras 48-49.
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5. The Reasoning Behind National Rules of Euthanasia Although both Sweden and the Netherlands are Member States of the European Union183 and state parties to the ECHR,184 their regulations of euthanasia differ.185 So, how are the national regulations of euthanasia reasoned in these Member States?
5.1. The Lawfulness of Euthanasia Reasoned in the Netherlands The debates in the Netherlands that eventually led to the adoption of the Termination of Life Act related to the principle of autonomy, the principle of beneficence, and the right to life. In support of the lawfulness of euthanasia, the Health Council of the Netherlands held that a modern legal system has to respect individuals’ self-determination. A state is not entitled to assure legal rights if an individual refuses such protection. Even though national courts cannot disregard a punishment of acts of murder established in the Dutch Criminal Code, an act of euthanasia executed by a doctor can be justified as a decision of conflicting duties. Another argument in favour of the decriminalisation of euthanasia was founded on the principle of beneficence, which imposes an obligation on doctors to relieve suffering. It is in the interest of the patient concerned to decide on his treatment, and an act contrary to that decision constitutes oppression.186 A duty to live is not incorporated in the right to life,187 and the provision does not bind a state to restrict individuals’ autonomy.188 The opponents against the legalisation of euthanasia have relied on the slippery-slope argument, dealing with the risk of routinely acting. The allowance of euthanasia would induce that morally unacceptable forms of euthanasia eventually will be legalised as time passes.189 As a response, the Health Council of the Netherlands announced that a prohibition of euthanasia would entail an uncontrollable situation. Euthanasia has been performed before the Termination of Life Act entered into force, which indicates that national doctors are prepared to conduct acts of euthanasia behind closed doors. Without a control-mechanism, doctors may act inconsistently and arbitrarily.190
The Netherlands has received several concluding observations directed to the lawfulness of euthanasia by the HRC.191 In 2001 the Committee raised concerns that the due care criteria in the Termination of Life Act may fail to identify and prevent situations of abuse, like deaths followed from undue pressure conducted by third parties. It also held that a control mechanism to avert termination of lives when the statutory criteria are not satisfied was missing. The Netherlands was thus demanded to examine the Termination of Law Act further
183 Europeiska Unionen, ‘EU:s 27 Medlemsländer’ [European Union, ‘Member States of the European Union’ (own translation)]
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and keep its application under strict observation.192 Eight years later, the HRC still raised concerns regarding the Termination of Life Act and urged the State to evaluate the Act in accordance with the right to life provision.193 Nevertheless, the Committee did not denounce that the Termination of Life Act violates the right to life194 or the right to private life.195
In reply to the HRC, the Dutch Government presented the outcome after many years of debate regarding euthanasia,196 namely a highly developed system of control including a consultation procedure prior to the performance of euthanasia as well as a review afterwards.197 The Dutch Government introduced the founding of an education for medical practitioners to improve the quality of independent assessments regarding the termination of life issues.198 The Government further emphasised the implementation of a Review Committee, whose role is to evaluate whether physicians met the due care requirements when an act of euthanasia is completed. If the criteria are not fulfilled, a criminal proceeding or a medical disciplinary matter will be raised.199A failure to comply with the due care criteria constitutes a crime of murder or assisted homicide.200 Nevertheless, an evaluation study accomplished by a large number of researchers’ marked that reported cases of euthanasia made by the executed doctor nearly constantly met the criteria of due care.201 The Dutch Government made sure to point out that a patient without a severe physical or psychological illness who requests euthanasia will not be assisted,202 and that termination of life without a request of the patient is a criminal offence that will be reported to the Dutch Public Prosecution Service.203 According to Dutch authorities, the Termination of Life Act does not conflict with the right to life ensured in international human rights conventions, as the provisions entail respect for life. The enforcement of a request of dying, made by an individual who suffers from an incurable illness, is thus compatible with the provision.204
5.2. The Current Situation in Sweden Concerning Euthanasia The opinion of the Swedish Government has long been that a legalisation of euthanasia would endanger the public trust in the healthcare system. Although a patient should be ensured autonomy regarding his care, such freedom cannot be limitless. Healthcare professionals are required to protect life, and a decriminalisation of euthanasia would create discomfort for patients who wish to live despite an incurable illness. A legalisation in favour of euthanasia
192 CCPR/CO/72/NET (n 191) para 5(a)-(d). 193 CCPR/C/NLD/CO/4 (n 191) para 7. 194 Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, OUP 2013) 213. 195 Note that neither of the observations made by the UN Human Rights Committee mentions a violation, see CCPR/CO/72/NET (n 191) and CCPR/C/NLD/CO/4 (n 191). 196 UN Human Rights Committee, ‘Comments by the Government of the Netherlands on the Concluding Observation of the Human Rights Committee (CCPR/CO/72/NET)’ (16 December 2004) UN Doc CCPR/CO/72/NET/Add.3, paras 1-9 (CCPR/CO/72/NET/Add.3). 197 Griffiths, Weyers and Adams (n 25) 49. 198 CCPR/CO/72/NET/Add.3 (n 196) paras 10-12. 199 ibid paras 16-18. 200 Dutch Criminal Code (n 188) art 293-294. 201 UN Human Rights Committee, ‘Replies to the List of Issues (CCPR/C/NLD/Q/4) to be Taken up in Connection with the Consideration of the 4th Periodic Report of the Netherlands (CCPR/C/NET/4; CCPR/C/NET/4/Add.1; CCPR/C/NET/4/Add.2)’ (5 May 2009) UN Doc CCPR/C/NLD/Q/4/Add.1, para 44 (c). 202 CCPR/CO/72/NET/Add.3 (n 196) para 30. 203 ibid para 40. 204 Netherlands Ministry of Foreign Affairs, ‘Euthanasia: Q and A The Termination of Life on Request and Assisted Suicide (Review Procedures) Act in practice’ (2011) AVT12/BZ104985, 19.
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could also constitute abuses, where patients become victims of euthanasia despite a lack of consent205 or due to oppression. Individuals suffering from various disabilities may call for euthanasia as they are afraid of being a burden for relatives or society as a whole.206 Deficiencies in the healthcare system cannot justify acts of euthanasia executed in order to reduce suffering. Instead, palliative care should undergo developments and improvements.207 However, a debate concerning the legalisation of euthanasia has emerged in Sweden during recent years. Several national political parties have suggested the Swedish Government to investigate the possibility to legalise euthanasia within the Country.208 According to the Swedish Green Party (Miljöpartiet de gröna), an individual’s autonomy must be respected in matters related to his life.209 A similar statement was made by Ann-Sofie Livenhagen, a representative from the Moderate Party in Sweden (Moderaterna ). Livenhagen argued that nationals should have the ability to decide over their own deaths, without going to another country for help. It is in the State’s responsibility to uphold the dignity of its nationals.210A number of representatives of The Liberals of Sweden (Liberalerna ) also voted for an investigation of the legalisation of euthanasia. In their view, the majority of Swedish nationals are positive to the enactment of such a law, whereas doctors are more concerned. The representatives held that the controversies had to be analysed in a research and proposed that acts of euthanasia should be performed solely by a doctor with a certain education.211
Despite an increased demand for an investigation for a possible decriminalisation of euthanasia within Sweden,212 the Swedish Government has declined to examine the issue.213 However, the Government appointed a researcher in 2019 to examine criminal liability for individuals inciting another person to commit suicide.214 As a result of the conducted investigation, an amendment of the Swedish Criminal Code is expected to enter into force during 2021, which criminalises acts of extortion that conduce another individual to commit suicide.215 In the view of the assigned investigators’, an incitement of suicide violates the right to life protected as a fundamental value in national law.216 The proposed amendment consists of a comparison between other countries217 with similar legislations in force. In some of these
205 Dir. 1997:147, Vård i Livets Slutskede [Terms of Reference of a Commission of Inquiry 1997:147, Palliative Care (own translation)] (11 December 1997), Dödshjälp [Euthanasia] (Directive 1997:147). 206 Riksdagens Protokoll 2015/16:68, § 21 Svar på Interpellation 2015/16:372 om Utredning om Dödshjälp [The Swedish Parliaments Protocol 2015/16:68, No 21 Answer to Interpellation 2015/16:372 on the Investigation of Euthanasia (own translation)] (23 February 2016) 118. 207 Directiv 1997:147 (n 205) Euthanasia. 208 See Motion 2018/19:290, Självbestämmande i livets slutskede - Utred Förutsättningarna för Aktiv Dödshjälp [Private Member’s Motion 2018/19:290, ‘Autonomy at the End of Life - Investigate the Prerequisites of Active Euthanasia (own translation)] (9 November 2018) (Motion 2018/19:290); Motion 2019/20:2094, Utredning om Dödshjälp [Private Member’s Motion 2019/20:2094, Investigation of Euthanasia (own translation)] (2 October 2019) (Motion 2019/20:2094); Motion 2019/20:1639, Aktiv Dödshjälp [Private Member’s Motion 2019/20:1639, Active Euthanasia (own translation)] (2 October 2019) (Motion 2019/20:1639). 209 Motion 2018/19:290 (n 208). Note that the Swedish Green Party decided to promote an investigation for legalising euthanasia in Sweden during a party conference in 2015. 210 Motion 2019/20:1639 (n 208). 211 Motion 2019/20:2094 (n 208). 212 See text to (n 208); (n 209); (n 210); (n 211). 213 SMER (n 8) 79. 214 SOU 2019:32 (n 100) 3. 215 ibid 41-43. 216 SOU 2019:32 (n 100) 228. See further Swedish Instrument of Government (n 90) ch 2 art 6. 217 A comparison between Norway, Great Britain, Portugal, France, the United States of America, New Zealand and Australia is conducted. SOU 2019:32 (n 100) 156-163.
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States, assisted suicide is included in the notion of extorted suicide. The assigned investigators do not mention whether the legislation covers assisted suicide. Instead, they refer to a future assessment of the judicial authorities,218 which could indicate that assisted suicide eventually will be criminalised within national law.219
218 SOU 2019:32 (n 100) 236. 219 See text to (n 101).
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6. Criticism and Arguments in Favour of a Legalisation of Euthanasia The debate concerning the legalisation of euthanasia is mainly divided into two opposing values, namely safeguarding individuals’ self-determination against the protection of human dignity.220 Opponents argue that a decriminalisation of euthanasia could endanger human dignity, as some lives are considered to be more valuable and worth living than others. Vulnerable groups like the elderly, persons with disabilities, or individuals with chronic- and mental diseases are likely to be subjected to negative consequences. For instance, society might decrease resources to maintain a good quality of the lives of sick and disabled individuals.221 Requesting euthanasia could stem from inadequate palliative care, absence of medical treatment, or insufficient distribution of resources to sick patients.222 It is argued that people with incurable illnesses are rarely calling for euthanasia if they are given proper healthcare.223 Instead, it is rather healthy people that demand decriminalisation, as they assume a life in severe illness is unworthy and that dying would be preferable to continuing life with a great need of medical care.224 On the contrary, an argument in favour of a legalisation underlines that an individual’s dignity is guaranteed if his decisions concerning life and death are respected.225
According to Ronald Dworkin,226 each individual has a right to make life-defining decisions for oneself if they are made without pressure from society,227 which comprises the power to be killed by request.228 Dworkin argues that violating an individual’s self-determination by rejecting a demand for death is as bad as a government imposing a decision of death on one individual.229 A similar opinion was held by Peter Singer,230 as he claims that legalising euthanasia would be legitimate in order to protect individuals’ freedom and autonomy.231 Palliative care cannot always reduce unbearable suffering,232 and it is solely for the person concerned to assess the extent of his suffering.233 However, Dworkin and Singer agree that individuals’ self-determination cannot be unrestricted, as it is in the interest of the state to prevent people from making irrational decisions that they may later regret.234 Dworkin also admits a need for states to intervene when there is a collective interest in life to be preserved, like monitoring that doctors do not act immorally.235 He further emphasises three groups of serious mistakes that should never be justified. These mistakes include decisions based on
220 Doc. 9898 (n 33) paras 50, 55. 221 SMER (n 8) 160-161. 222 Doc. 9898 (n 33) para 50; Recommendation 1418 (n 140) para 7. 223 Singer (n 34) 197. 224 SMER (n 8) 157. 225 Doc. 9898 (n 33) para 55. 226 Ronald Dworkin (1931 - 2013) was an American professor in jurisprudence and philosopher of legal positivism. He believed that moral values were necessary in legal decision-making and that constitutional rights were based on equality and respect of all people. For more information see Simon Blackburn, ‘Dworkin, Ronald’ The Oxford Dictionary of Philosophy (3rd edn, OUP 2016). 227 Dworkin (n 34) 1149. 228 Frances Myrna Kamm, Bioethical Prescriptions: To Create, End, Choose, and Improve Lives (OUP 2013) 42. 229 Dworkin (n 34) 1150-1151. 230 Peter Singer (1946- ) is an Australian moral philosopher with a strong utilitaristic approach. For more information see Ted Honderich, ‘Singer, Peter A’ The Oxford Companion to Philosophy (2nd edn, OUP 2005). 231 Singer (n 34) 199. 232 Tännsjö (n 1) 691. 233 Doc. 9898 (n 33) para 58. 234 Singer (n 34) 200; Dworkin (n 34) 151-152. 235 Dworkin (n 34) 151-152.
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misinformation since no diagnosis could be completely certain. Conclusions reached by the incompetence of the individual concerned is also covered. The third mistake contains decisions made by vulnerable people who perceive that they are a burden for others. To decriminalise euthanasia, legal procedures that prove that the choice to request a termination of life is reasonable, rational, stable, and competent should be established.236 Singer additionally stresses a need for the patient to announce a reasonable ground, such as being in an extremely distressing situation or suffering from an incurable illness, in order for euthanasia to be executed.237
Another argument against decriminalisation of euthanasia is the impossibility of defining when a patient suffers ‘unbearably’, as well as to assure that a patient is capable of making a permanent and independent decision to end his life.238 These complexities are remarked by Martha Nussbaum,239 who claims that society underestimates elderly people. She argues that relatives may manipulate or press aging people to end their lives and that it is necessary to establish sufficient safeguards to avoid abuses.240 Likewise, Singer denounces a risk with decriminalised euthanasia without consent, as it would scare people who might become subjected to such treatment. He states that elderly people might fear to experience euthanasia if becoming senile. To reduce such fear, Singer encourages the establishment of a procedure where individuals can register their refusal for termination of life.241 Additionally, Nussbaum stresses a need for methods to deter temporarily depressed individuals from requesting death, 242 since numerous individuals withdrew from their appointment of euthanasia when treated for pain and depression.243
Although it is necessary with a procedure to avoid abuses in relation to euthanasia, Singer believes that a legalisation of euthanasia is favorable. In his view, there has to be a balance between the limited number of unwanted deaths and the suffering felt by terminally ill patients, as prolonged life cannot be superior to all other circumstances.244 Singer set forth different utilitaristic arguments in favour of decriminalising the termination of life by request. He presents that the availability of euthanasia would ease people’s fear of what will happen if they become ill and subjected to unbearable suffering. By requesting euthanasia, an individual waives his right to life, and that decision should be inviolable due to respect for everyone’s autonomy.245 Singer further argues that allowing a patient to die with a withdrawal of medical treatment is not morally different from helping a patient to end his life. In certain circumstances, euthanasia might be the only moral option to relieve suffering, as a cessation of medical treatment can prolong the pain.246 This objection is supported by Dworkin and
236 Dworkin (n 34) 1157-1159. 237 Singer (n 34) 199-200. 238 SMER (n 8) 158-159. 239 Martha Nussbaum (1947 - ) is an American classical and moral philosopher with a liberal approach. For more information see Simon Blackburn, ‘Nussbaum, Martha’ The Oxford Dictionary of Philosophy (3rd edn, OUP 2016). 240 Martha Nussbaum, ‘Human Dignity and Political Entitlements’ in Adam Schulman (eds), Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics (U.S Government Printing Office 2008) 373. 241 Singer (n 34) 191-193. 242 Nussbaum (n 240) 373. 243 Pretty v the UK (n 10) [30]. 244 Singer (n 34) 196-97. 245 ibid 191-195. 246 ibid 209-211.
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other philosophers,247 as they consider that there is no difference between unplugging a respirator and prescribe lethal medication in order for a patient to kill oneself by request.248
Deontologists oppose a legalisation of euthanasia due to the conflict with the sanctity of life. To terminate another person’s life constitutes the illegal act of murder, regardless of the possible consent of the individual concerned. A call for euthanasia could never be justified since doctors intentionally and actively end patients’ lives.249 That argument is frequently compared with a refusal to voluntarily make oneself a slave, as it is unacceptable to treat people like possessions.250 In addition, legalising euthanasia would be contrary to the ambition to combat the death penalty,251 and inconsistent with medical ethics. Healthcare professionals’ primary function is to preserve life, not to terminate life.252 Acts of euthanasia might lead to a negative impact on healthcare professionals,253 as well as on patients. It is likely that doctors may cease medical treatment or terminate the life of a patient without his consent, due to their opinion when a life is worth living.254 Unlawful killings may also be excused since these acts are defined as euthanasia.255 If available, more people might request a termination of life, which could result in a permissive attitude of euthanasia. It is thus likely that more people are granted access to euthanasia even though they are not supposed to be included in its scope.256 However, the argument that decriminalising euthanasia eventually would result in a lenient attitude to other forms of killing is rejected by Singer. He argues that the frequency of murder has not increased within the Netherlands in comparison with other states, despite the authorisation of euthanasia.257 Singer further asserts that there is limited historical evidence to suggest that a tolerant attitude towards killing amount to milder restrictions against acts of killing.258 It is neither convincingly to compare death penalty with acts of euthanasia, as death penalty is executed against the will of the person.259
Deontologists advocate that a cessation of medical treatment or a prescription of painkillers with a fatal outcome can be morally acceptable since the intention behind the act is to relieve pain and not to kill the patient. It is thus required that the disadvantages are proportionate to the advantages, namely that there was no other way to alleviate the patient’s suffering.260 The Swedish utilitarian philosopher Torbjörn Tännsjö261opposes that reasoning and argues that deontologists disregard the perspective of individuals. Patients are more eager to know that their death occurs in conformity with their wishes than whether the act of the doctor is
247 Dworkin submitted a brief regarding assisted suicide to the U.S. Supreme Court together with Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon and Judith Jarvis Thomson. For more information see Ronald Dworkin and others, ‘Assisted Suicide: The Philosophers’ Brief’ (New York Review of Books 1997). 248 Kamm (n 228) 44-46. 249 Tännsjö (n 1) 689. 250 SMER (n 8) 153. 251 Doc. 9898 (n 33) para 50. 252 SMER (n 8) 153-154. 253 ibid 162. 254 ibid 157-58. 255 Singer (n 34) 196-9. 256 SMER (n 8) 160-161. 257 Singer (n 34) 196-197. 258 ibid 216-217. 259 Doc. 9898 (n 33) para 59. 260 Tännsjö (n 1) 689. 261 Torbjörn Tännsjö (1946 - ) is a Swedish professor in practical philosophy with a utilitaristic approach. For more information see Stockholm University, ‘The Institution of Philosophy: Torbjörn Tännsjö’
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regarded as euthanasia or normal medical practice. In addition, Tännsjö believes that a legalisation of euthanasia would entail that decisions concerning life and death are investigated more thoroughly,262 which could prevent abuses.263 As a basis for his claim, he demonstrates that causes of death are clarified to a greater extent in countries allowing acts of euthanasia than states criminalising it.264 A similar claim was raised by the Parliamentary Assembly when demonstrating that a legalisation could reduce the incidence of euthanasia, as it enables authorities to supervise how cessations of lives are carried out.265
262 Tännsjö (n 1) 690-691. 263 Doc. 9898 (n 33) para 61. 264 Tännsjö (n 1) 690. 265 Doc. 9898 (n 33) para 62.
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7. Final Analysis: A Consistent Practice? The extent of the right to life in matters related to the termination of life by request seems to be interpreted differently depending on the meaning of ‘respect for life’.266 It appears that Swedish authorities have made a restrictive interpretation, as they require healthcare professionals to assure life even if such protection is contrary to the wishes of the patient.267 On the contrary, Dutch authorities believe that a modern legal system has to respect patients’ freedom to decide on their treatments in order to avoid oppression. A state is not enforced to safeguard legal rights of an individual who rejects such protection.268 It is likely that the distinction between states within the European Union devolves upon the ECtHR’s declination to clarify the substance of the right.269 Although Article 2 of the ECHR is judged not to comprise a right to die, the Court has merely stipulated that the provision obliges state parties to establish a procedure to protect individuals from making decisions to end their lives due to coercion or incomprehension. Article 2 has further been declared to impose a duty on states to prevent criminal acts that may risk the lives of others.270 Whether acts of euthanasia contravene the right to life has thus been left unanswered by the Court on the ground that states enjoy a broad margin of appreciation when dealing with ethical issues.271 A similar approach has been taken by the Court with regard to Article 8 of the Convention. The right to private life contains a right to decide over one’s body, as well as the method and time to end one’s life.272 Nevertheless, the ECtHR has expressed a need for states to institute preventive measures when managing questions of euthanasia.273 Advocates for the legalisation of euthanasia also profess that states are required to introduce legal methods to prevent abuses.274 However, no suggestions regarding the composition and administration of such procedures have been presented. Nor is it possible to discern the requirements in the judgments of the ECtHR, as the Court assesses the proportionality between the objective and the measures used to achieve that objective by taking into consideration the circumstances in each case.275 How is it even possible to introduce a legal procedure sufficient enough without any guidance?
As the Dutch Government received several concerns when adopting the Termination of Life Act, the Government initiated a policy to monitor the execution of euthanasia within the State. In order to carry out euthanasia, a doctor is nowadays required to satisfy the due care criteria. 276 This means that the doctor must assure that the patient made a thoughtful and independent decision to end his life as a result of unbearable suffering. Moreover, the responsible doctor is obliged to consult another doctor before performing euthanasia.277 Although the application of the due care criteria may be considered as clear, several obscurities can be raised. For instance, how should the term ‘unbearable’ be assessed?278 According to Dutch practice, it is
266 See text to (n 204); (n 205). 267 See text to (n 205). 268 See text to (n 186). 269 See text to (n 154); (n 155); (n 157). 270 See text to (n 69); (n 138); (n 139). 271 See text to (n 79); (n 80); (n 81); (n 154); (n 155); (n 157). 272 See text to (n 165); (n 170); (n 176). 273 See text to (n 171). 274 See text to (n 190); (n 197); (n 236); (n 241); (n 242). 275 See text to (n 78); (n 156). 276 See text to (n 191); (n 192); (n 193); (n 196); (n 197); (n 198); (n 199); (n 200). 277 See text to (n 122); (n 124); (n 125). 278 See text to (n 238).
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the concerned patient who determines when his suffering is unbearable.279 This method is promoted by Singer and Tännsjö, as they believe that the affected individual is best suited to assess the extent of his own suffering.280 In the light of the aforementioned, how come that a doctor dares to support the patient regarding unbearable suffering when he can be held criminally liable for the execution?281 Presumably, the responsible doctor has confidence that the second doctor would discourage executing euthanasia if the extent of the patient’s suffering is obscure. However, is it likely that the consultation of the second doctor is independent, or is it a possibility that he is affected by the opinion of the responsible doctor? Dutch authorities have founded an education for medical practitioners to reduce such a risk,282 but whether the training is sufficient to diminish the potential abuses is yet to be clarified. The evaluation study set out by Dutch researchers indicates that doctors almost constantly fulfil the due care criteria. Accordingly, it is likely that the fear of being held criminally liable prevent abuses.283
Another interesting aspect mentioned in the euthanasia debate concerns the acts that constitute normal medical practice. In Sweden and the Netherlands, a cessation of medical treatment that aims to prolong life is lawful, even without the consent of the patient.284 Why is euthanasia unreasonable within Sweden,285 when a withdrawal of life-sustaining treatment is accepted? And how can a discontinuation of medical treatment in the absence of a permission be legal286 when euthanasia performed without consent is illegal in the Netherlands?287 A prerequisite to withdraw life-prolonging treatment is that the medical care causes more suffering than relief for the patient and thus is medically futile.288 According to Dworkin, Singer, and Tännsjö, there is no difference between disconnecting a respirator and aiding a patient who desires to die due to unbearable suffering.289 Although that argument may be reasonable, the Swedish and Dutch authorities seem to defend their governance by presenting the deontology perspective. The principal ground to justify the withdrawal of medical treatment appears to be that it is the last resort in order to reduce the pain of the patient,290 whereas euthanasia may be executed when there are still available resources left to the patient.291 However, if human life is inviolable, has not the perimeter for what should be allowed already been passed with the legality to withhold life-sustaining treatment?
The ECtHR has emphasised that the right to life is a fundamental right, as it is a prerequisite to enjoy the other rights and freedoms set out in the Convention. In the view of the Court, an individual is not authorised to choose death rather than life.292 However, the Court’s opinion seems to be different from practice, as the Parliamentary Assembly has stressed that termination of lives by requests is performed within the Member States regardless of a
279 See text to (n 123). 280 See text to (n 232); (n 233). 281 See text to (n 120); (n 199); (n 200). 282 See text to (n 124); (n 197); (n 198). 283 See text to (n 200); (n 201); (n 202); (n 203). 284 See text to (n 45); (n 46); (n 47). 285 See text to (n 98); (n 99). 286 See text to (n 45); (n 46); (n 47) 287 See text to (n 203). 288 See text to (n 46); (n 47). 289 See text to (n 246); (n 247); (n 248); (n 262). 290 See text to (n 46); (n 51); (n 149); (n 150). 291 See text to (n 110); (n 117); (n 119); (n 123); (n 124); (n 186); (n 204); (n 206); (n 207). 292 See text to (n 138).
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prohibition. The Parliamentary Assembly calls for a harmonisation between law and practice within the Member States, in order to reduce the risk of abuses.293 Consequently, should a right to die be incorporated within the ECHR? Minimising misconduct is one of the main arguments used to justify euthanasia.294 According to Dutch authorities, the allowance of euthanasia led to a control-mechanism that prevents doctors from making arbitrary decisions. 295 Tännsjö also presumes that a legalisation of euthanasia would induce that life and death-decisions are examined in detail, as the causes of death are much more transparent within the Netherlands than in other countries.296 There is neither an indication that the frequency of murder within the Netherlands has increased compared to other states.297 This argument is supported by the Parliamentary Assembly, as it believes that a legalisation could reduce acts of euthanasia.298 Conversely, the Swedish Government and opponents to a decriminalisation of euthanasia stress that the allowance of termination of life by request could endanger human dignity and the trust of the healthcare system, as some lives may be considered more valuable than others. It is likely that vulnerable groups are treated as burdens for society and that their resources to promote a life in good quality diminishes. Vulnerable groups may thus be subjected to euthanasia as a result of coercion.299 As a solution, Singer proposes to establish a procedure where individuals can register their refusal of being subjected to euthanasia.300 Accordingly, the question of how to operate such a procedure in practice once again arises.
Is it possible to export the Dutch euthanasia system to other states? An analysis of that question is too extensive to carry out within the scope of this thesis. However, some implications can be illustrated when comparing Sweden with the Netherlands. Acts of euthanasia can only be justified under Dutch law if executed by a doctor who fulfils the due care criteria. The Dutch system is thus leaving a wide discretion to healthcare professionals, a norm that existed already before the adoption of the Termination of Life Act. Dutch nationals seem to be confident that doctors carry out well-founded decisions and that they consider the wishes of their patients.301 Similarly, Swedish healthcare professionals enjoy freedom when making decisions related to a patient’s treatment even though this may hasten death.302 Swedish citizens appear to be positive to a decriminalisation of euthanasia if such acts are carried out by doctors with a specific education.303 Accordingly, it seems that Swedish nationals also have great trust in the medical profession and that they are confident in allowing doctors to perform euthanasia. Swedish nationals may, therefore, have such a reliance in the medical authorities that is essential for a legalisation of euthanasia to be implemented within the State. The Dutch system further contains a prerequisite when a termination of life by request can be executed without criminal liability, namely the criterion that the individual concerned is able to make an independent and thoughtful decision. As a result, the perception and autonomy of individuals have a significant impact on the legality of
293 See text to (n 180); (n 181). 294 See text to (n 180); (190); (n 262). 295 See text to (n 190); (n 197). 296 See text to (n 262); (n 264). 297 See text to (n 257). 298 See text to (n 265). 299 See text to (n 205); (n 206); (n 221); (n 236); (n 241); (n 252); (n 253); (n 256). 300 See text to (n 241). 301 See text to (n 46); (n 47); (n 49); (n 107); (n 120); (n 123); (n 186); (n 199); (n 200). 302 See text to (n 46); (n 47); (n 50); (n 51); (n 205). 303 See text to (n 211).
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euthanasia.304 Swedish medical laws ensure patients’ freedom to decide over one’s care, for instance, by allowing a patient to withhold medical treatment if he is fully aware of the consequences. However, the autonomy of the patient cannot be unlimited, due to the obligation for healthcare professionals to carry out their work in accordance with diligent care. As a result, Swedish doctors are obliged to protect life when facing conflicted duties related to a patient’s self-determination and the respect for life.305 In comparison, the Netherlands justifies that a doctor terminates a patient’s life after a request to alleviate pain, instead of preserving his life.306 In order for Sweden to implement the Dutch system, a change in the perception regarding the value considered most beneficial when conflicting duties arises is necessary. It is also crucial to openly discuss the opinions about euthanasia within Sweden in order to implement a similar procedure as the Dutch one.307
What can other states learn from the Dutch euthanasia system? The Dutch system demonstrates various safeguards and forms of control necessary to implement in order to legalise euthanasia. Nevertheless, the Dutch system also contains deficiencies,308 which indicates that it takes time to develop a secure and reliable procedure to reduce abuses related to euthanasia. Although the Dutch system is not yet completely efficient, it could inspire other states to initiate discussions related to euthanasia. Due to the diversity of states’ cultural, moral and religious norms, it seems impossible to organise a general standard regarding euthanasia within the European Union. Hence, it is probably more favourable to leave the question of whether euthanasia should be decriminalised or criminalised to each state.309 However, it is important to keep discussing issues related to life and death, both internationally and nationally due to the rapid developments in medical technology.310 I, therefore, propose that the Swedish Government pursues an investigation regarding the lawfulness of euthanasia to clarify controversies, as it currently appears that passive euthanasia, indirect euthanasia as well as assisted suicide is legal, whereas active euthanasia and physician-assisted suicide are prohibited.311
304 See text to (n 122); (n 123); (n 199); (n 200). 305 See text to (n 46); (n 50); (n 103); (n 205). 306 See text to (n 117); (n 118); (n 119). 307 See text to (n 108); (n 117); (n 118); (n 119); (n 181); (n 205); (n 293). 308 See text to (n 191); (n 192); (n 193). 309 See text to (n 80); (n 81); (n 156); (n 157); (n 182). 310 See text to (n 1); (n 143). 311 See text to (n 45); (n 46); (n 47); (n 50); (n 51); (n 98); (n 99); (n 101); (n 104); (n 106); (n 216); (n 218); (n 219).
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8. Conclusion Euthanasia is a widely debated topic, and the allowance of a termination of life by request is interpreted differently throughout the world. A unanimity within the European Union is missing due to the Member States’ margin of appreciation when dealing with ethical issues. Sweden distinguishes between active euthanasia, physician-assisted suicide, and assisted suicide. Active euthanasia and physician-assisted suicide are illegal under the Swedish Criminal Code and Swedish medical laws, whereas assisted suicide is admissible if the individual concerned is able to make independent decisions. Contrary to Sweden, the Netherlands legalises active euthanasia and assisted suicide if executed by a doctor who meets the due care requirements prescribed in the Termination of Life Act. In both countries, passive- and indirect euthanasia constitutes normal medical practice. This means that a doctor can withdraw or withhold a life-sustaining treatment as well as administer medication that hastens death without being held criminally liable. The diversity between the Member States stems from the opinion of the ECtHR that national authorities are more competent than an international court to assess local needs. However, Member States’ discretion is not limitless, as there is no right to die incorporated within the ECHR.
A right to die is not included in Article 2 of the Convention since the provision obliges state parties to protect life. Accordingly, an individual is not enabled to choose death rather than life by relying on the right to life-provision. A right to die is neither enshrined in Article 8 of the ECHR. The ECtHR has stated that the right to private life encompasses a right to determine the time and method for ending one’s life, as individuals enjoy the freedom to make decisions concerning their bodies. Nevertheless, states are required to establish measures to prevent abuses in situations where severe damages may occur. As a result, the assurance of safety and health of the public prevails over the principle of personal autonomy. Whether national laws that decriminalise euthanasia infringe Article 2 and Article 8 is so far left unanswered by the Court. Until a clarification comes, the discussion on whether human dignity is guaranteed by respecting individuals’ self-determination in questions related to life and death, or whether human dignity contains a prevention that some lives are considered more valuable than others, will continue. Currently, it is impossible to establish a universal standard within the Union that deals with issues of euthanasia, due to the different moral, cultural, and religious beliefs of the Member States and the margin of appreciation left by the ECtHR. It is, therefore, more advantageous to leave the question of whether euthanasia should be legalised or prohibited to each state. However, a new approach may emerge if the Court examines the merits of the pending application of Mortier v Belgium or will initiate adequate discussions related to euthanasia.
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9. Table of Authorities
Regulations I. International:
African Charter on Human and People’s Rights: (Banjul Charter) (adopted 27 June 1981, entered into force 21 October 1986) CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)
American Convention on Human Rights: “Pact of San Jose, Costa Rica” (adopted 22 November 1969, entered into force 18 July 1978)
Charter of Fundamental Rights of the European Union [2012] OJ C 326/391
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended by Protocol Nos. 11 and 14) (adopted 4 November 1950, entered into force 3 September 1953) ETS 5
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
Convention on the Rights of Persons with Disabilities: Resolution adopted by the General Assembly (adopted 24 January 2007, entered into force 8 May 2008) A/RES/61/106
International Covenant of Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)
II. National - Sweden:
Kungörelse (1974:152) om beslutad ny regeringsform [The Instrument of Government (1974:152)]
Abortlag (1974:595) [The Swedish Abortion Law (1974:595) (own translation)]
Brottsbalk (1962:700) [The Swedish Criminal Code (1962:700)]
Lag (1987:269) om Kriterier för Bestämmande av Människans Död [Act (1987:269) on Criteria for Determining Human Death (own translation)]
Patientsäkerhetslag (2010:659) [The Swedish Patient Safety Act (2010:659) (own translation)]
III. National - The Netherlands:
Wetboek van Strafrecht [Criminal Code of the Kingdom of Netherlands] (entered into force 3 March 1881, amended 2012)
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Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding [Termination of Life on Request and Assisted Suicide (Review Procedures) Act] (adopted 12 April 2001, entered into force 1 April 2002)
Case Law I. European Court of Human Rights:
A, B and C v Ireland [GC], App no 25579/05 (ECtHR, 16 December 2010)
Evans v the United Kingdom [GC], App no 6339/05 (ECtHR, 10 April 2007)
Haas v Switzerland, App no 31322/07 (ECtHR, 20 January 2011)
Handyside v the United Kingdom, App no 5493/72 (ECtHR, 7 December 1976)
Hämäläinen v Finland [GC], App no 37359/09 (ECtHR, 16 July 2014)
Koch v Germany, App no 497/09 (ECtHR, 19 July 2012)
Lambert and Others v France, App no 46043/14 (ECtHR, 5 June 2015)
McCann and Others v the United Kingdom, App no 18984/91 (ECtHR, 27 September 1995)
Mortier v Belgium (communicated case), App no 78017/17 (ECtHR, January 2019)
Open Door and Dublin Well Woman v Ireland, App nos 14234/88 and 14235/88 (ECtHR, 29 October 1992)
Pretty v the United Kingdom, App no 2346/02 (ECtHR, 29 April 2002)
Vo v France [GC], App no 53924/00 (ECtHR, 8 July 2004)
II. The Court of Justice of the European Union:
Judgment of 15 July 1964, Flaminio Costa v E.N.E.L, Case-6/64, ECLI:EU:C:1964:66
III. National - Sweden:
NJA 1979 p 802 (The Supreme Court of Sweden)
Högsta Domstolen [The Supreme Court of Sweden], case no B 2553-19 (3 April 2020)
Svea Hovrätt [Svea Court of Appeal], case no B 2447-03 (28 May 2013)
IV. National - The Netherlands:
Postma case, Rechtbank Leeuwarden (The District Court of Leeuwarden) 21 February 1973, reported in Nederlandse Jurisprudentie no 183:558
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Schoonheim case, Hoge Raad (The Dutch Supreme Court) 27 November 1984, reported in Nederlandse Jurisprudentie no 106:451
Wertheim case, Rechtbank Rotterdam (The District Court of Rotterdam) 1 December 1981, reported in Nederlandse Jurisprudentie no 63:223
V. National - Canada:
Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 (The Supreme Court of Canada)
UN Documents UN Human Rights Committee, ‘General Comment 36: Article 6: Right to Life’ (3 September 2019) UN Doc CCPR/C/GC/36
UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Netherlands’ (27 August 2001) UN Doc CCPR/CO/72/NET
UN Human Rights Committee ‘Concluding Observations of the Human Rights Committee: Netherlands’ (25 August 2009) UN Doc CCPR/C/NLD/CO/4
UN Human Rights Committee, ‘Comments by the Government of the Netherlands on the Concluding Observation of the Human Rights Committee (CCPR/CO/72/NET)’ (16 December 2004) UN Doc CCPR/CO/72/NET/Add.3
UN Human Rights Committee, ‘Replies to the List of Issues (CCPR/C/NLD/Q/4) to be Taken up in Connection with the Consideration of the 4th Periodic Report of the Netherlands (CCPR/C/NET/4; CCPR/C/NET/4/Add.1; CCPR/C/NET/4/Add.2)’ (5 May 2009) UN Doc CCPR/C/NLD/Q/4/Add.1
The Council of Europe Council of Europe, The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights (Human Rights Handbooks; No. 8, 2006)
Council of Europe, Protocol No. 15 Amending the Convention on the Protection of Human Rights and Fundamental Freedoms: Explanatory Report (2013) CETS 213
The Parliamentary Assembly of the Council of Europe, ‘Rights of the Sick and Dying’ (28 January 1976) REC 779
The Parliamentary Assembly of the Council of Europe, ‘Protection of the Human Rights and Dignity of the Terminally Ill and the Dying’ (25 June 1999) REC 1418
The Parliamentary Assembly of the Council of Europe, ‘Euthanasia’ (10 September 2003) Doc. 9898
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The Parliamentary Assembly of the Council of Europe, ‘Assistance to Patients at End of Life’ (9 February 2005) Doc. 10455
National Legal Materials I. Sweden:
Socialstyrelsen, ‘Socialstyrelsens Föreskrifter om Ändring i Föreskrifterna och Allmänna Råden (SOSFS 2011:7) om Livsuppehållande Behandling’ [The Swedish National Board of Health and Welfare, ‘The Swedish National Board of Health and Welfare’s Regulation of an Amendment in the Regulation and General Advice (SOSFS 2011:7) of Life-Sustaining Treatment (own translation)] (2017) HSLF-FS2017:26
Prop. 1993/94:130, Ändringar i Brottsbalken m.m.: (Ansvarsfrihetsgrunder m.m.) [Prop. 1993/94:130, Amendments in the Swedish Criminal Code: (Discharges etc.) (own translation)]
SOU 1993:40, Fri- och Rättighetsfrågor: Delbetänkande [SOU 1993:40, Freedom and Rights Issues: An Interim Report (own translation)] (1993)
SOU 2019:32, Straffrättsligt skydd för barn som bevittnar brott mellan närstående samt mot uppmaning och annan psykisk påverkan att begå självmord [SOU 2019:32, Criminal Protection of Children who Witness Crime between Relatives and Protection against Acts of Extortion to Commit Suicide (own translation)] (2019)
Dir. 1997:147, Vård i Livets Slutskede [Terms of Reference of a Commission of Inquiry 1997:147, Palliative Care (own translation)] (11 December 1997)
Riksdagens Protokoll 2015/16:68, § 21 Svar på Interpellation 2015/16:372 om Utredning om Dödshjälp [The Swedish Parliaments Protocol 2015/16:68, No 21 Answer to Interpellation 2015/16:372 on the Investigation of Euthanasia (own translation)] (23 February 2016)
Motion 2018/19:290, Självbestämmande i livets slutskede - Utred Förutsättningarna för Aktiv Dödshjälp [Private Member’s Motion 2018/19:290, ‘Autonomy at the End of Life - Investigate the Prerequisites of Active Euthanasia (own translation)] (9 November 2018)
Motion 2019/20:1639, Aktiv Dödshjälp [Private Member’s Motion 2019/20:1639, Active Euthanasia (own translation)] (2 October 2019)
Motion 2019/20:2094, Utredning om Dödshjälp [Private Member’s Motion 2019/20:2094, Investigation of Euthanasia (own translation)] (2 October 2019)
II. The Netherlands:
The Health Council of the Netherlands, ‘Brain Death Protocol’ (2006)
Netherlands Ministry of Foreign Affairs, ‘Euthanasia: Q and A The Termination of Life on Request and Assisted Suicide (Review Procedures) Act in practice’ (2011) AVT12/BZ104985
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Books Dahlman C, ‘Begreppet Rättskälla’ in Dahlman C and Wahlberg L, Juridiska Grundbegrepp - En Vänbok till David Reidhav [Dahlman C, ‘The Definition of a Legal Source’ in Dahlman C and Wahlberg L, Basic Legal Concepts - A Friend’s Book to David Reidhav (own translation)] (Studentlitteratur 2019)
Enkvist V, Religionsfrihetens Rättsliga Ramar [Enkvist V, Legal Framework of the Freedom of Religion (own translation] (Iustus 2013)
Griffiths J, Bood A and Weyers H, Euthanasia and Law in the Netherlands (Amsterdam University Press 1998)
Griffiths J, Weyers H and Adams M, Euthanasia and the Law in Europe (Hart Publishing 2008)
Hoffman M and Rumsey M, International and Foreign Legal Research: A Course Book (2nd edn, BRILL 2012)
Joseph S and Castan M, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, OUP 2013)
Kamm FM, Bioethical Prescriptions: To Create, End, Choose, and Improve Lives (OUP 2013)
Klatt M and Meister M, The Constitutional Structure of Proportionality (OUP 2012)
Kleineman J, ‘Rättsdogmatisk metod’ in Nääv M and Zamboni M (red.), Juridisk Metodlära [Kleineman J, ‘Legal Dogmatic Method’ in Nääv M and Zamboni M (eds), Legal Methodology (own translation)] (Studentlitteratur 2019)
Lewis P, Assisted Dying and Legal Change (OUP 2007)
Nussbaum M, ‘Human Dignity and Political Entitlements’ in Schulman A (eds), Human Dignity and Bioethics: Essays Commissioned by the President’s Council on Bioethics (U.S Government Printing Office 2008)
Singer P, Practical Ethics (2nd edn, CUP 1993)
Sturkell CE, ‘Lagstiftning om Livets Början’ in Statens Medicinsk-Etiska Råd, Etiska Vägmärken 10:Om Livets Början - En Debattskrift [Sturkell CE, ‘Legislation of The Beginning of Life’ in The Swedish National Council on Medical Ethics, Ethical Signs 10: About the beginning of Life - A Written Debate (own translation)] (2000)
Articles Dworkin R,‘Euthanasia, Morality, and Law: Transcript’ (1998) 31 Loyola of Los Angeles Law Review 1147
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Satz AB, ‘The Case Against Assisted Suicide: For the Right to End-Of-Life Care: Reexamined’ (2002) John Hopkins University Press 1380
Tännsjö T, ‘Moral Dimensions’ (2015) BMJ 331
Åkerman R, ‘Är det min eller är det jag? Äganderätt till kroppen’ (2003) Häfte 7 SvJT 637
Encyclopedias Blackburn S, ‘Dworkin, Ronald’ The Oxford Dictionary of Philosophy (3rd edn, OUP 2016)
Blackburn S, ‘Nussbaum, Martha’ The Oxford Dictionary of Philosophy (3rd edn, OUP 2016)
Focarelli C, ‘Euthanasia’ (October 2013) in Max Planck Encyclopedia of Public International Law (MPEPIL ) (online edn) accessed 29 April 2020
Honderich T, ‘Singer, Peter A’ The Oxford Companion to Philosophy (2nd edn, OUP 2005)
Oxford English Dictionary (2nd edn, 1989)
Oxford World Encyclopedia (1st edn, 2004)
Petersen N, ‘Life, Right to, International Protection’ (October 2012) in Max Planck Encyclopedia of Public International Law (MPEPIL ) (online edn) accessed 28 April 2020
Electronic Sources United Nations Human Rights Office of the High Commissioner, ‘Human Rights Committee’
Council of Europe, ‘Chart of Signatures and Ratifications of Treaty 005: Convention for the Protection of Human Rights and Fundamental Freedoms’
Europeiska Unionen, ‘EU:s 27 Medlemsländer’ [European Union, ‘Member States of the European Union’ (own translation)]
Stockholm University, ‘the Institution of Philosophy: Torbjörn Tännsjö’
The Government of Netherlands, ‘What is the time limit for having an abortion?’
Miscellaneous Dworkin R and others, ‘Assisted Suicide: The Philosophers’ Brief’ (New York Review of Books 1997)
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Statens Medicinsk-Etiska Råd, ‘Dödshjälp: En Kunskapssammanställning’ [The Swedish National Council on Medical Ethics, ‘Euthanasia: A State of Knowledge Report’ (own translation)] (2017)
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