Active euthanasia – the killing of a patient at his request – is not subject to debate in Germany. It is regarded as manslaughter, based on article 216 of the German Criminal code, and can lead to up to five years imprisonment.
Assisted suicide has never been illegal in Germany, however, physicians are prohibited to do so, according to their guidelines. In 2015, a new article was added to the Criminal Code. This article 217 prohibits assisted suicide when it is done by an organisation that has the intention to organise repeatedly assisted suicide, as a profession. It can lead to up three years of imprisonment. Individual assistance stays not punishable.
Terminating treatment for incurable patients, with the focus on suppressing pain and not ending the life is allowed in Germany.
In the so-called Kempten-case, the judges decided that in the case of a terminally ill patient who is no longer able to make a decision, the interruption of medical treatment or measure may also be permissible if the requirements of the guidelines for euthanasia passed by the German Medical Association are not met because the process of dying has not yet started. The presumed will of the patient is decisive. (BGHSt)
Bundesverwaltungsgericht 3 C 19.15 (2017)
In 2017, the Federal Administrative Court of Germany decided that article 2.1 (the general right to personality), combined with article 2.2 (the right to life) and in connection with article 1.1 (protection of human dignity) of the Constitution of Germany comprises the right of a severe and incurably ill patient to decide how and at what time his or her life shall end, provided that he or she is in a position to make up his or her own mind in that respect and act accordingly. The Court found, even though it was generally not possible to allow purchasing a narcotic substance for the purpose of suicide, there had to be exceptions. If a severe and incurably ill patient, due to his or her unbearable suffering, freely and seriously decides to wish an end to his or her life, and if there was no reasonable alternative available – such as to end treatment accompanied by palliative care, such a patient should not be barred from accessing prescribe narcotics for a dignified and painless suicide. (Read more here.)
On Wednesday February 26, the Federal Constitutional Court (Bundesverfassungsgericht) in Karlsruhe declared the German ban on assisted suicide (that exists since 2015) unconstitutional. This is a great victory for the people who brought this ban to court, among others: seriously ill patients and doctors.
The court declared that the general right of personality, as laid down in the German constitution, includes a right to self-determined death. This right includes the freedom to commit suicide and to use the voluntary help of third parties. The decision taken by the individual in exercising this right to end his life in accordance with his understanding of the quality of life and the meaningfulness of his own existence must be respected as an act of autonomous self-determination by the state and society. With this reasoning, the court decided that the prohibition on business-related promotion of suicide, which was laid down in Section 217 of the Criminal Code (StGB), violates the Constitution, because it virtually depletes the possibilities of assisted suicide. It does not follow from this that this kind of legislation is always unconstitutional. However, the legislator must ensure that the right of the individual to end his life in a self-determined manner has sufficient space to be used and developed.
The press release of the court and the full judgment can be found here.
Right to Die Societies in Germany
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