In a controversial verdict announced in February, judges in Karlsruhe declared Section 217 I of the German Criminal Code to be unconstitutional. Facilitating suicide as a recurring pursuit had previously been a punishable offence under this provision.
But according to the Federal Constitutional Court, a self-determined death falls within the scope of the general right of personality. This includes the freedom to take one’s own life and to seek help from third parties or accept offers of help in order to do so. Moreover, this freedom is not restricted to specific circumstances, such as an incurable disease, but applies at all times. To impose a restriction would be equivalent to assessing the motives for suicide, which is incompatible with the ideal of freedom enshrined in German Basic Law. The concept of quality of life is individual and cannot be evaluated on the basis of religious precepts, overall values or objective reason.
However, Section 217 I imposes restrictions on this freedom, rendering it virtually impossible to accept commercially provided assistance. The criminalisation of certain forms of suicide assistance that threaten autonomy should not prevent access to any assistance of this nature. Furthermore, Section 217 I of the Criminal Code unduly infringes upon the rights of those who wish to provide suicide assistance.
Active euthanasia remains illegal
Reactions to the verdict were mixed. Many were pleased at the decision and understood it to mean that euthanasia is now finally permitted. But this is not the case. As it stands, the provision has been declared unconstitutional and may no longer be applied. It also means that the commercial promotion of assistance to suicide will not be prosecuted for the time being. However, whenever a provision is declared unconstitutional, legislators are called upon to amend it.
The Constitutional Court judges expressly acknowledge the possibility of legally regulating assisted suicide. Various meas- ures were discussed, such as the introduction of mandatory counselling and waiting periods or an advisory solution si- milar to those for abortions. It should also be noted that this discussion only concerns what is referred to as passive euthanasia. Active euthanasia is and remains banned in Germany.
Critics fear that the verdict may lead to increased pressure on elderly and sick people who require time-consuming and costly care, to the point where they may feel obliged to end their own lives in order to relieve the burden on those supporting them. For medical professionals, the verdict is also an appeal to legislators to create legal certainty for all stakeholders, especially doctors. In addition, they consider it their main duty to preserve life and protect health. Physicians should not be forced to provide suicide assistance under any circumstances.
Now that Section 217 I of the Criminal Code has been declared unconstitutional, one can only hope that legislators do not act too hastily in their desire to continue to prevent commercially organised assisted suicide as far as possible. A very difficult balance needs to be achieved that would guarantee the right to a self-determined death on the one hand while also ensuring that neither the seriously ill and those in need of care nor medical professionals are put under undue pressure.
About the Author:
Dr. Béatrice Schütte studied law in Hamburg and Bordeaux. She completed her doctorate at the University of Aarhus in 2014. Her main areas of research are comparative law, liability law, private international law and EU law. She also loves foreign languages.