Death Rights

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. More importantly, this approach recognizes that today there is no one answer that can convince and oblige everyone. The back-and-forth of crafting a law able to command a large majority reflects the correct judgment that, in the early twenty-first-century secular West, no one way of approaching the question of death and dying can command universal assent. The law allows assisted suicide, but does not declare it a right, and thus forsakes the temptation to impose one particular moral philo­sophy on the whole country. German medical boards and associations were strenuously opposed to obliging doctors to offer suicide assistance as part of their job description, and the law respected their dissent.

Sadly, the Canadian Supreme Court and Parliament made assisted suicide into a “right,” and in so doing imposed the moral philosophy of liberalism—free choice limited only by the prohibition against harming others—on everyone. In Canada as well, an overwhelming majority of doctors say they are unwilling to help their patients commit suicide. But if assisted suicide is a “right,” then the moral qualms of doctors (and nurses) have little standing.

Taken as a whole, the law passed in Germany makes a minimal moral claim. One does not have a right to suicide assistance, but under certain limited ­circumstances, those who provide it will not be criminally prosecuted. The law does not affirm assisted suicide so much as tolerate it, a recognition that a signi­ficant plurality of contemporary Germans think suicide assistance morally licit. Abortion presents a parallel. A significant percentage of people think it licit, and more think it should not be criminalized, while many others find it immoral. Here, German law takes a similar tack. It does not formulate a right to abortion, but also does not penalize it under certain conditions.

Canada’s supreme judges and lawmakers take the opposite approach, formulating a right to die by assisted suicide, which ultimately will allow no debate or compromise. By this way of thinking, assisted suicide is a positive good that must be affirmed in circumstances where the new law deems it justified. Those who dissent have very little recourse. Moreover, it seems very likely that limitations now included in the Canadian law (age of majority, closeness to natural death) will be removed over time, again by the courts. If assisted suicide is a basic right, why should children be denied its benefit? Why the arbitrary conditions of impending death and ­intolerable pain?

As a German citizen, I would have preferred sustaining (or perhaps strengthening) the old law that prohibited suicide assistance in all circumstances. But as a resident of Canada, I find myself thinking my home country wiser in its legislative rather than judicial approach. The legislative process is much more ­nuanced. It allows for the formulation of laws that permit, prescribe, tolerate, forbid, and enforce with penalties, all of which have moral significance. The German law is careful not to enshrine assisted suicide as a “right”—a powerful and dangerous concept that encourages people into exercising that “right,” produces duties for others, and forces the state to protect and guarantee its exercise.

Is the German approach preferable? Or is it ultimately hypocritical to say that assisted suicide is not a “right,” but will not be prosecuted? Although I regret the cultural changes that now make many people think assisted suicide, like abortion, a permissible form of killing, I find myself siding with the German approach. Our political leaders have a duty to sustain a just rule of law, which sometimes means formulating compromises with the spirit of the age that, while imperfect, do not contradict moral truth and do not force everyone to think and act according to a moral philosophy that happens to be in vogue. It is a sad fact that in many Western nations, a majority of people (and judges) do not want to see suicide assistance penalized. Yet many of them do not wish to make assisted suicide too widely available, and still others worry about financial and social pressures that can subtly coerce the vulnerable into making a “choice” to die.

In this situation, the legislative process (rather than the judicially predetermined outcome we saw in Canada) is far more likely to produce a less harmful approach than an all-or-nothing appeal to “rights.” It ­allows for the formulation of laws that send the moral message that suicide, assisted or not, is not to be championed as a good “choice” in the face of suffering and death and thus as something we all need to accept and affirm. It allows the state to avoid formulating a “right” that it must protect and foster. Furthermore, it allows for ­affirmations of alternatives. The German law requires public health ­services to provide access to palliative care. In this respect, the judicial approach that formulates a “right to die” uses a very blunt instrument. Are we to counter its excesses with a “right to palliative care”? Maybe we have to try. But duelling rights make for a far less effective legal environment than a law that, however regrettable in its acquiescence to the spirit of our age, allows for nuance, compromise, and something less than endorsement.

Suicide is an act of desperation and cannot but have tragic consequences. We should not treat it as something good, even though we know its evil can stem from depression, despair, and other motivations that attenuate responsibility. Even so, the secular West is losing its sense of the sacred and that includes a full awareness of the sanctity of life. There has been a tacit ­accommodation of suicide assistance throughout the West, even where it remains ­illegal. For this reason, many governments now find themselves ­unable to penalize suicide assistance in all circumstances. But there is no need to formulate new rights that impose a regime of state-mandated assistance, and force all health care providers, individually and institutionally, to cooperate, not to mention all who end up paying for this “service” through their taxes or health insurance contributions.

Suicide is a significant problem in many developed countries. The statistics are shocking: 100,000 attempts in Germany each year, more than 10,000 “successful.” This rise of self-willed death poses real questions. In the midst of so much freedom and self-determination and in countries with generous social security and high “quality of life,” why do so many people choose to end their lives? In the face of such numbers, is it reasonable and responsible to pass laws that define suicide assistance as a “right”? If we want to be serious about suicide prevention, we must not formulate a right to die.

Laws forbidding suicide assistance are based on the moral conviction that all killing of innocent life is wrong. If liberal democracies today can no longer sustain this conviction, that is one thing. But to replace the old prohibition with a new approach that creates a “right” to be killed incites a moral revolution.

The biblical commandment not to kill (which is not uniquely biblical) was, up until recently, one of the unifying principles of society. It is dangerous to abandon it, which is exactly what Canadian law has now done. The German legislative approach tiptoes toward the culture of death, but does not capitulate to its logic. There is a lesson to be learned from this difference as we try to figure out how to sustain and foster the sanctity of life in an increasingly post-Christian West.

Msgr. Hans Feichtinger is pastor of St. George’s Parish in Ottawa. He previously worked at the Vatican for the Congregation for the Doctrine of the Faith.