There is no duty to live under all circumstances

Erwin Kress, Vice President of the Humanist Association of Germany (HVD) and spokesperson on the subject of autonomy at the end of life, has seen the decision of the Federal Administrative Court (AZ 3 C 19.15) as a success for self-determination at the end of life. “Fortunately, the Leipzig ruling contradicts the spirit of the law against so-called ‘assisted suicide’ in the form of Section 217 StGB, which the Bundestag passed in 2015,” said Erwin Kress today. The case decided yesterday concerned an application to the Federal Institute for Drugs and Medical Devices (BfArM) by the plaintiff’s wife, who was almost completely paralyzed and artificially ventilated, to obtain permission to purchase a lethal dose of sodium pentobarbital for suicide, which was denied by the BfArM. As a result, she ended her life with the support of an assisted suicide organization in Switzerland. With its ruling, the Federal Administrative Court followed requirements that the European Court of Human Rights (ECtHR) had developed in several earlier rulings. The right to decide on the time and manner of one’s own death must therefore not be merely theoretical and apparent for the seriously ill patient. The right to respect for private and family life under Article 8 of the European Convention on Human Rights does not only mean that the state may not prohibit suicide. According to the ECtHR, the state “may also have positive obligations which are inherent in effective ‘respect’ for private life.” According to the court, in extreme individual cases this could mean that the state may not deny access to a narcotic for a dignified and painless suicide. The Federal Constitutional Court has now received 13 appeals against Section 217 of the German Criminal Code, which will probably be heard this year. According to Kress, it is now to be hoped that the Federal Constitutional Court, like the Federal Administrative Court, will take into account that there is no obligation to live. The rights of seriously and terminally ill people who are capable of making a free decision and wish to end their own lives must not take a back seat to the protection of patients who should be protected from being influenced in their decision of will, according to Kress. Influential supporters of Section 217 StGB indignantly rejected the latest decision of the Leipzig court. They were disregarding the right of a patient with the capacity to decide on their own death, said Kress. Following the ruling in Leipzig, the German Bishops’ Conference believes that the state is obliged to “extend a hand to suicide”. Now “an authority must make a value judgment on the reasonableness of life, which it has so far been denied for good reasons”, it said. However, according to HVD Vice President Erwin Kress, the judgment on the reasonableness of life is by no means the responsibility of an authority or the legislator. “That is up to the patient alone. The legislator only has to lay down rules on how a free and autonomous decision can be made by a seriously and terminally ill person. There are experts for this, especially doctors. And the state of suffering can also be determined. In palliative medicine, a pain scale with levels 1 to 10 is a common instrument for determining unbearable pain,” says Erwin Kress.