On February 27, 2020, the Federal Constitutional Court in Germany overturned the legal ban which prohibited doctors or associations from “organizing” suicide, by declaring the 2015 law unconstitutional.
In 2015, the German parliament (“Bundestag”) voted to prohibit assisted suicide services from being conducted for remuneration, following the bill tabled by Chancellor Angela Merkel’s party, the Christian Democratic Union (“CDU”).
Passively helping patients commit suicide – such as providing deadly medication for them to take themselves, or accompanying them to specialized Swiss clinics is not illegal. However, the medical code of ethics bans assisted suicide; thus doctors who practiced assisted suicide in some regions had their medical licenses revoked. This presented a legal grey area (neither banned, nor explicitly allowed), which could have allowed professional businesses, similar to those in Switzerland, to show up in Germany. Thus, the German parliamentarians finally passed a law in 2015 to prohibit assisted suicide from being organized on a “business basis”.
Germany’s Criminal Code stipulated in article 217 that anyone who promoted assisted suicide or collaborated with someone to this end could be fined and imprisoned. Relatives and those who were not remunerated were exempt; nonetheless, the ambiguity of the terms permitted all individuals not providing “recurring” assistance to be exempt as well.
Jurisprudence was established in 2017 after the Federal Supreme Administrative Court in Leipzig, questioned the validity of this law in the “Koch vs. Germany” case in 2005, which was finally submitted to the European Court of Human Rights (ECHR).
In 2004, the Federal Institute of Drugs and Medical Devices (FIDMD) refused to grant Mrs. Koch, a quadriplegic, the lethal drugs she requested for committing suicide. She and her husband then filed an administrative appeal, which was also refused. Following his wife’s assisted suicide in Switzerland in 2005, Mr. Koch filed suit against the FIDMD, to request that their previous decision be declared unlawful. His request was judged inadmissible by the Administrative Court, the Court of Appeal and the Federal Constitutional Court.
Mr. Koch insisted that by refusing to examine the merits of his complaint, the German courts had infringed on article 8 of the European Convention on Human Rights (ECHR), which provides “a right to respect for one’s private and family life…” There was indeed talk of interfering with his rights as a husband and caregiver, and but not with those of his wife. Due to the marital link, the ECHR agreed with Mr. Koch, but also declared that it was up to the German courts to render a judgment for his complaint.
According to Pierre-Olivier Koubi-Flotte, Doctor of Law, barrister, and member of the Marseille Bar, the ECHR’s decision is “questionable” and “surprisingly lacking in consistency”. This is further accentuated by the fact that each individual State has enormous leeway in deciding whether or not their respective national laws should allow assisted suicide.
Nevertheless, both prior to and after this decision, Germany preserved its freedom to decide whether or not to allow its federal agencies to deliver lethal products to individuals who wish to commit suicide.
Finally, the Leipzig Administrative Court judge established jurisprudence by ruling that “in exceptional cases, the State cannot prevent the access to anaesthetic products which would allow the patient to kill himself in a dignified manner, without suffering”. However, by ministerial order, all subsequent assisted suicide requests were rejected by the FIDMD.
Recently, doctors, patients, and associations offering assistance to commit suicide in Germany and Switzerland, challenged a constitutional complaint.
In the end, Article 217 of the Criminal Code was declared unconstitutional, null and void, because it “effectively vitiates any possibility for the individual concerned to resort to assisted suicide“.
According to the judges, this article violates Articles 1 and 2 of the country’s Basic Law which provides that “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law” and that “every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.”
The Constitutional Court decision states that: “The general right to self-fulfillment and to the dignity of the human being includes a citizen’s right to determine their own death.” This interpretation of dignity, which legitimizes suicide, is mind-boggling. The Court specifies: “it does not follow that the legislator is completely barred from regulating suicide assistance. But any legislation on this subject must be guided by the notion of humans …capable of pursuing and exercising their freedom in self-determination.” The right to a self-determined death would not be limited to certain criteria such as “the diagnosis of an incurable illness”.
The European Institute of Bioethics appropriately points out: “Thus Germany would become the first country to organize assisted suicide on an unconditional basis (…). By the Constitutional Court’s ruling that the principle of human dignity allows a person’s self-determination to take precedent over the right to life (although both are included in the Basic Law) German legislators are left with extremely limited options since they will now be required to implement laws allowing everyone the means to commit suicide. ”
In 2015, the President of the German Medical Association, Frank Ulrich Montgomery voiced his opposition to legalizing such acts: “As doctors, we must be very clear on the fact that we come to patients’ bedsides to provide assistance and care, and not to kill.”
The German Palliative Care Foundation also deplored: “From now on, making suicide more accessible for those who are ill, and for those who are tired of life has become a routine service.”
Thomas Sitte, a palliative care physician in Fulda, declared: “The experience in all other countries has shown that supply creates demand. Our Foundation will continue to fight against the current trend, so that at some point everyone may realize that it is possible to relieve suffering without killing. “