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PROSPECTS of EUTHANASIA LEGAL REGULATION in UKRAINE 10.36740/Wlek202010135

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PROSPECTS of EUTHANASIA LEGAL REGULATION in UKRAINE 10.36740/Wlek202010135 © Aluna Publishing Wiadomości Lekarskie, VOLUME LXXIII, ISSUE 10, OCTOBER 2020 REVIEW ARTICLE PROSPECTS OF EUTHANASIA LEGAL REGULATION IN UKRAINE 10.36740/WLek202010135 Tetіana A. Pavlenko¹, Tetіana Ye. Dunaieva², Marina Yu. Valuiska3 ¹Н. S. SCOVORODA KHARKIV NATIONAL PEDAGOGICAL UNIVERSITY, KHARKIV, UKRAINE ² АCADEMICIAN STASHIS SCIENTIFIC RESEARCH INSTITUTE FOR THE STUDY OF CRIME PROBLEMS, NATIONAL ACADEMY OF LAW SCIENCES OF UKRAINE, KHARKIV, UKRAINE 3YAROSLAV MUDRYI NATIONAL LAW UNIVERSITY, KHARKІV, UKRAINE ABSTRACT The aim of this article is to explore the ways of euthanasia regulation and to propose the most effective one. Materials and methods: The authors of the article used the methods of analysis and synthesis, a comparative legal method. The scientific literature is evaluated and analyzed along with the experience of European countries, data of Ukrainian and international organizations and the results of scientific researches. Conclusions: the understanding of euthanasia should be reviewed in terms of the possibility in exceptional cases of its executing for terminally ill person. This is an inherent human right. However, it is established that the right to dispose of his life belongs exclusively to the bearer of this right and it cannot be delegated. KEY WORDS: euthanasia, death with dignity, right to die, patients’ rights, terminally ill patients, palliative care, compassion Wiad Lek. 2020;73(10):2289-2294 INTRODUCTION scientific methods. The use of comparative analysis method In modern theory of criminal law there is a hot debate not made it possible to investigate, analyze and identify the only on understanding of the euthanasia concept, but also problem of euthanasia regulation in foreign countries. The on its typologization: voluntary and coercive – depending dialectical method contributed to the study of the nature on the consent of the individual; active and passive – de- and features of euthanasia. The dogmatic method was used pending on the nature of the behavior (action or inactivity). in the analysis of the legislation provisions on the liability The problem of euthanasia is a problem of choice (moral for euthanasia execution. choice of society, professional and ethical choice of doctor, personal choice of the individual). This choice can and should be made on the basis of biological ethics. However, REVIEW ethical standards are not endowed with an effective imple- The study examined international legal acts and decisions mentation mechanism. The very right is a measure of social of the European Court of Human Rights in the Cases of compromise and a mechanism for ensuring public safety. “Pretty v. The United Kingdom” [1], “Sanles Sanles v. Spain” The right of the patient to freely manage his life includes [2], “Gross v. Spain Switzerland” [3], “Afiri and Biddarri the right to terminate his life (i.e., to commit suicide) and v. France” [4]. the right to terminate life with the help of others. Having analyzed the provisions of the Convention for the Protection of Human Rights and Fundamental Free- doms, adopted on 4 November 1950, and the practices MATERIALS AND METHODS of their application, we have concluded that the problem The study analyzed the experience of European and other of euthanasia has not been resolved at that time in inter- countries. In addition, in this study we used data from national law. The European Court of Human Rights has Ukrainian and international organizations, findings of scien- sought to clarify this in the Case of “Pretty v. The United tists and decisions of the European Court of Human Rights. Kingdom” (29 April 2002) where he noted that Art. 2 of The legislation of Ukraine, international acts, legislation the Convention cannot be construed as conferring the of the European and other countries, decisions of the Euro- right to die or to receive assistance from another person pean Court of Human Rights, materials from the Unified in causing his own death. However, the ECtHR did not State Register of Judgments were used. Methodological recognize that euthanasia was a violation of the right to basis of this research was the set of general and special life and declined to comment on the legalization of eu- 2289 Tetіana A. Pavlenko et al. thanasia in a number of European countries, indirectly cent death”. This problem provokes eternal debate among recognizing each country’s ability to regulate euthanasia philosophers, sociologists, lawyers and doctors. There are at the national law level [3]. In the case of “Sanles Sanles two diametrically opposite points of view regarding the v. Spain” (26 October 2000) on granting the right to a possibility of a persons to terminate their lives freely (it is decent life and a decent death, as well as non-interference clear that suicide is not covered): on the one side there are with one’s own personal life by prohibiting suicide assisted supporters of the “right to a decent death”, on the other – by a doctor, decided on the inadmissibility of the claims the opponents of premature death. made [1]. This ECtHR position was revised in case “Gross Oddly enough, some doctors are among the supporters v. Switzerland” (30 September 2014), in which the Court of legally authorized euthanasia. For example, accord- held by a majority vote that there had been a violation of ing to a survey commissioned by the Royal College of Art. 8 of the European Convention. However, in the case of Medicine (UK) in 2006 and 2014, when asked whether “Afiri and Biddarri v. France” (23 January 2018) on refusal respondents (college members, GPs) support changes to to provide life support for a 14-year-old girl who was in a the law to grant permission to help endure life of the sick vegetative state after a severe cardiovascular deficiency, the person, the following answers was given: the majority of ECtHR found the parents’ claims unjustified, noting that respondents (3858 persons – 58%) said no, 2168 persons the current national legislation of France complies with (32%) answered yes, 10% answered yes, but not by doctors. Art. 2 of the Convention [4]. Particularly interesting is the fact that among those doctors According to the Venice Declaration on Terminal Status, who answered “no”, the majority were representatives of adopted by the 35th World Medical Assembly (WMA) in palliative practice (85%, 415 responses) [8]. October 1983, a physician in the course of treatment is There are also supporters of euthanasia among lawyers. obliged to alleviate the patient’s suffering whenever possible They often justify their position by referring to natural, acting in his best interests. It is considered that doctor does inalienable, constitutional subjective rights, fundamental not continue the suffering of the dying person, stopping at rights and human freedoms. The constitutional establish- his request, and if the patient is unconscious – at the request ment of the right to life logically means the legal fixation of relatives, treatment that can only delay the onset of the of the human right to death. The right to life belongs to inevitable end. However, refusal of treatment, according to the category of personal human rights, that is why it is the 1983 Declaration, does not relieve the physician of the implemented individually and independently, regardless obligation to assist the dying person by prescribing drugs of the others’ will. for the relief of suffering [5]. Peter Singer, an advocate of euthanasia, notes that the The Doctor’s Declaration of Euthanasia and Suicide, most important aspect of the right to life is the ability to adopted in October 2019 in Tbilisi at the 70th WMA, choose to continue living or not. A person values the​​ right states that euthanasia as an act of deliberately depriving a to live only when he wants to live [9, p. 218-219]. patient of his life, even at the request of the patient him- Philip Nitschke argues that anyone, including the ter- self or on his relatives’ request, is unethical. This does not minally ill persons and people with depression, should be exclude the need for the doctor to respect the patient’s eligible for help to terminate their lives [10]. Contrary to desire not to interfere with the natural process of dying in that according to Richard Huxtable, who while raising the the terminal phase of the disease. The WMA reaffirms its urgent issue of depression and “dying assistance” notes that strong commitment to the principles of medical ethics and discussing the possibility of such assistance demonstrates the highest respect for human life. Therefore, the WMA is a slippery path and raises even more questions about es- firmly against euthanasia and physician-assisted suicide. tablishment of the limits of such “help”, especially since it However, a doctor who respects a patient’s fundamental concerns depressed persons [11]. right to refuse medical treatment, does not act unethically A.F. Connie believed that voluntary active euthanasia in refusing unwanted help even if respect for such a desire could only be used in exceptional circumstances if the leads to the death of the patient [6]. following conditions were met: a) the patient’s conscious Thus, both the Venice and Madrid declarations of the and persistent request; b) the impossibility of alleviating WMA allow for a passive form of euthanasia, namely, when the patient’s suffering by known means; c) the unques- the doctor does not use any measures to prolong the life tionable demonstration of the impossibility of saving the of the patient but only uses painkillers. life established and approved by the College of Doctors with obligatory unanimity; d) prior notification to the prosecutor’s office and presence of the prosecutor’s office DISCUSSION staff [12, p. 10]. The current stage of Ukrainian society development is char- Sarah Elizabeth Mathieson, being a supporter of leg- acterized by two opposing tendencies: the commitment to islative euthanasia, stresses that this will not cause us to the democratic standard based on the rule of law – on the “indulge” euthanasia for any reason, nor does it oblige one hand, and the existence of legal illiteracy, old miscon- society to accept involuntary euthanasia the day after such ceptions and remaining legal nihilism – on the other.
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