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Give Me Liberty at My Death

The end of life and its complexity

In order to properly assess this issue, it is necessary to distinguish some key concepts. Euthanasia can either be active, i.e. causing the patient's death by an action of a third party, or it can be indirect by the administration of a drug whose unintended consequence is death or alternatively passivity if the patient refuses such therapy. Cases of assisted suicide are also possible where the doctor shows the patient a method to end his days in the most serene manner.

In the Middle Ages, the Christian West was concerned about how to die from the perspective of the salvation of the soul. The concept of euthanasia was described for the first time in the book Utopia by Thomas More in 1516. According to the philosophical and religious traditions of each society ever since, the notion is understood differently. For the Catholic religion, euthanasia is in direct opposition to the 6th commandment "You shall not kill." It is a crime that no human law can claim to legitimize. The Orthodox Church compare it to suicide for the person who wants to suffer and homicide for the physician in practice.

Today, advances in medicine are dismaying and the issue of limitations arises. This brings the medical professions, philosophers and politicians to discuss the best medical methods and the patients' rights. A protest movement in favor of euthanasia is in line with contemporary Western individualism. Some even try to go beyond the vision of such freedom in favor of a utilitarian conception of morality. In other words, it is worth sacrificing the happiness of an individual for the benefit of a greater number. In all cases, states have made the legislation.

The end of life faces disparate European legislation

The heterogeneity laws on end of life within the European Union is obvious. Some states favor ethical principles, while others privilege the opposing principles. One of the fault lines lies in the principle of individual freedom, personal choice and independence. The European Union is divided between a liberal tradition favoring individual choice leading by countries such as the Netherlands as opposed to a more social norm embodied by France or Germany. The EU is also divided according to religious practices, with some catholic countries imposing severe laws, such as Ireland, while other countries with protestant traditions tend to be more tolerant.

Indeed, the Benelux countries were the pioneers in this field. The Netherlands was the first country in the world to decriminalize euthanasia and assisted suicide in 2001. Belgium followed suit in 2002 strictly controlling assisted suicide. On 13th of February, 2014, the Belgian Parliament went even further by adopting a law allowing euthanasia for terminally ill minors on request. Luxembourg legalized euthanasia in 2009. All these new laws marked a social and societal evolution.

However, reluctance appears in the majority of member countries of the European Union. Since the Leonetti Act of 2005, France has formally rebuked euthanasia, nevertheless it allows the cessation of treatment by extending the rights of the patient to "a dignified end". In Germany and Austria, the patients' consent for passive euthanasia is legal. In Spain, patients have the right to refuse treatment. In Portugal, the Ethics Council has granted ending of treatment for some desperate cases. In Hungary and in the Czech Republic, the terminally ill may refuse treatment. In Slovakia, the doctor may reduce pain of the terminally ill. In the UK, the law authorizes the interruption of care in some cases. In Italy, the right to refuse care is recognized by the Constitution. In Denmark, an incurable patient may decide to stop treatment. Finally, in some countries, repression is severe. In Greece, as in Romania, euthanasia in any form is prohibited followed by a sentence of up to seven years in prison for those those who breaks the law. In Poland, euthanasia is punishable by 3 months to 5 years in prison. And in Ireland, all forms of assistance to the death or suicide is illegal and punishable by 14 years in prison.

The end of life conforming to the subsidiarity principle

If European countries are divided, the Union does not impose harmonization. In the treaties' framework, the European Union clearly has no competence established in this area. It is difficult to conceive of national governments delegating skills on euthanasia. Today, if a seed of social Europe is appearing, the institutions are aware that the EU is not the normative level likely to foster consensus on such a question. Faced with such divisions, the principle of subsidiarity is prominent.

The Court of Justice of the EU in Luxembourg (CJEU) has wanted to stay back, emphasizing the rule of law to interpret. Stephanie Hennette-Vauchez, Professor of Public Law at the University Paris X Nanterre mentions that "The positioning in Luxembourg is a purely legal reasoning". As well, the European Group on Ethics suggests that "Pluralism appears as a feature of the European Union. It reflects the rich traditions of its Member States and calls everyone to respect mutual tolerance".

Similarly, the European Court of Human Rights, which depends on the Council of Europe, is reluctant. In the Dianne Pretty case against the UK on 29 April 2002, the Court refused to recognize any "right to death" according to the Article 2 of the Convention, devoting the right to life. Only the European Parliament has started an initiative in 1989 by the Committee on the Environment and Public Health. It adopted a motion to develop palliative care and care for the dying in the countries of the European Community. But the final text has never come into force because of a wave of protests concerning Article 8 about legitimizing euthanasia, going beyond the assigned mission.

Today, the evolution of the European Union towards increased mobility poses new problems if it is not accompanied by an approximation of national laws. In an environment where patients can get treatment outside their borders, can we still accept these disparities between national laws ? Many Europeans go to Switzerland because the assisted suicide is authorized, leading to what has been called 'death tourism'. The Netherlands and Belgium are going in the same direction. Consequently, beyond these sensitive issues, the EU should encourage a consensus.