Magazine article First Things; A Monthly Journal of Religion and Public Life

Death Rights

Magazine article First Things; A Monthly Journal of Religion and Public Life

Death Rights

Article excerpt

Last year, Canada's Supreme Court unanimously decided that laws criminalizing assisted suicide are unconstitutional and in violation of the Canadian Charter of Rights and Freedoms. Following the court's verdict, Canadian Parliament in June 2016 passed a new law according Canadians a right to assistance in causing their own deaths, as long as it is accompanied by free consent in circumstances of intolerable pain. In 2015, Germany's parliament passed a similar law, but in different circumstances and with different implications. Because it was legislated rather than ordered by supreme judicial fiat, the German approach is less extreme and better attuned to social realities.

Passed by a large majority (360 out of 602 votes), the German law was proposed by members of Parliament belonging to all the parties currently represented in the German national legislature, the Bundestag. This law forbids and punishes any commercialization of assistance in suicide (up to three years in jail). In Germany there will be no "billing code" for assisted suicide, nor will Germany allow the development of "suicide spas" of the sort one finds in Switzerland. But relatives and other people close to a person, including doctors, cannot be prosecuted if they act in individual cases.

The law was not arrived at casually. Germany has a long history of ethical reflection on euthanasia. The Nazis' practice of euthanasia makes today's medical, juridical, and political elites in Germany very careful to avoid any approach that might lead back to that dark history. In this instance, those who supported the limited legalization of assisted suicide wished to be clear: The state is not ordering the killing of "useless" people. Instead, the new law leaves it to the individual. It's free will that rules, not racial purity or the other gods of the past. We have gone from the will of the Volk (as determined by the Führer) to the will of the individual as the authoritative principle. In this respect, the new German law parallels Canada's judicial legislation: free choice über alles.

The German law differs, however, in its many efforts to limit assisted suicide. It presupposes a series of distinctions: between individual and commercial assistance, euthanasia and suicide assistance, palliative care and assisted suicide, self-determination and coercion, and, most important, between non-prosecution (Straffreiheit) and enshrining an individual right. By distinguishing between individual and commercial assistance, the law removes any financial incentive that might encourage someone to commit suicide. Another distinction, between euthanasia and assisted suicide, seeks to forestall the slide from self-chosen suicide to so-called mercy killing. The law also identifies palliative care as an option, setting aside the fallacy that a horrible death and the supposedly humane option of assisted suicide are the only alternatives. Finally, a distinction between self-determination and coercion focuses attention on the troublesome possibility that burdensome, terminally ill people will be strong-armed into "choosing" their own deaths.

In voting on this issue, the political parties allowed the members of Parliament the freedom to follow their consciences, rather than requiring a party vote. The German parliamentary tradition generally allows this freedom when votes touch on important moral issues, a political practice that highlights the substantial difference between ordinary matters of political business and issues that require the broadest possible consensus. While Canadian parliamentarians in theory had the same freedom, their options were strictly limited: The substantial decision had been made by the Supreme Court, which already defined an individual right to receive suicide assistance.

The practice of allowing members of Parliament to vote their consciences makes it easier for dissenters to live with the law, because the outcome isn't decided by party leaders but instead by the entire body of legislators. …

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