Skip to main content
Log in

The Practice of Euthanasia and Assisted Suicide Meets the Concept of Legalization

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

This article explores attempts at legalization of the practice of euthanasia and assisted suicide. Although in many countries there have been high levels of public support for euthanasia and assisted suicide, in most of them, no legislative activity has taken place concerning these practices, and there is a lack of clarity about what is permitted and what is not. I argue that accurate definition of the relevant concepts and a clear delineation of the territory of the debate would help draw a coherent roadmap for legalization. To this end, I analyze five legal approaches to the legalization euthanasia: maintenance of the status quo, legal defenses, de-prioritization, de-criminalization, and legislation. I conclude with a discussion of the moral and legal implications of the foregoing analysis.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Fig. 1

Similar content being viewed by others

Notes

  1. “2002 Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding”.

  2. Janssen, André. “The New Regulation of Voluntary Euthanasia and Medically Assisted Suicide in the Netherlands.” International Journal of Law, Policy and the Family 16.2 (2002): 260–269.

  3. “2002 Wet betreffende de euthanasie”.

  4. Adams, Maurice, and Herman Nys. “Comparative Reflections on the Belgian Euthanasia Act 2002.” Medical Law Review 11.3 (2003): 353–376.

  5. “Loi du 16 mars 2009 sur l’euthanasie et l’assistance au suicide”.

  6. Griffiths, John, Heleen Weyers, and Maurice Adams. Euthanasia and Law in Europe. Bloomsbury Publishing, 2008.

  7. The “House of Commons Canada. Bill C-14”.

  8. Emanuel, Ezekiel J., et al. “Attitudes and Practices of Euthanasia and Physician-Assisted Suicide in the United States, Canada, and Europe.” Journal of the American Medical Association 316.1 (2016): 79–90.

  9. Dyer, Owen, Caroline White, and Aser García Rada. “Assisted Dying: Law and Practice Around the World.” British Medical Journal 351 (2015): h4481.

  10. The bill was debated in the lower house over three days and was passed in the Assembly without amendment by a 47 to 37 vote. It now proceeds to the Legislative Council for debate (https://www.parliament.vic.gov.au/legislation). Accessed June 27, 2018.

  11. Washington v. Glucksberg, 521 U.S. 702 (1997).

  12. Montana does not have a death with dignity law, but the end-of-life option is legal in the state through a state supreme court ruling. In Baxter v. Montana, 449 MT, 354 Mont 234, 224 P3d 1211 (Mont Sup Ct 2009), the Montana Supreme Court ruled, in a 5-2 decision, that state law allows terminally ill Montanans to request lethal medication from a physician under existing statutes.

  13. The Oregon Death with Dignity Act, Oregon Revised Statutes (https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/statute.pdf). Accessed October 25, 2017.

  14. Hendin, Herbert, and Kathleen Foley. “Physician-Assisted Suicide in Oregon: A Medical Perspective.” Michigan Law Review 106.8 (2008): 1613–1639; Curran Jr., Patrick M. “Regulating Death: Oregon’s Death with Dignity Act and the Legalization of Physician-Assisted Suicide.” Georgetown Law Journal 86.3 (1997): 725–749.

  15. The Washington Death with Dignity Act, Chapter 70.245 RCW (http://apps.leg.wa.gov/rcw/default.aspx?cite=70.245). Accessed October 25, 2017.

  16. Steinbrook, Robert. “Physician-Assisted Death—From Oregon to Washington State.” New England Journal of Medicine 2008.359 (2008): 2513–2515.

  17. Act 39, Vermont Patient Choice and Control at the End of Life Act (http://www.leg.state.vt.us/docs/2014/bills/intro/S-077.pdf). Accessed October 25, 2017.

  18. Tucker, Kathryn L. “Vermont’s Patient Choice at End of Life Act: A Historic Next Generation Law Governing Aid in Dying.” Vermont Law Review 38.3 (2013): 687–699.

  19. Assembly Bill No. 15, End of Life Option Act (2015–2016).

  20. Clodfelter, Ryan P., and Eli Y. Adashi. “The Liberty to Die: California Enacts Physician Aid-in-Dying Law.” Journal of the American Medical Association 315.3 (2016): 251–252.

  21. The Colorado End-of-Life Options Act. (https://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/filings/2015-2016/145Final.pdf). Accessed October 25, 2017.

  22. Lewis, Browne. “A Deliberate Departure: Making Physician-Assisted Suicide Comfortable for Vulnerable Patients.” Arkansas Law Review 70.1 (2017): 1–55.

  23. The District of Columbia Death with Dignity Act of 2016, D.C. Law 21–182 (https://doh.dc.gov/sites/default/files/dc/sites/doh/page_content/attachments/Death%20with%20Dignity%20Act%20of%202016-%20DC%20law%2021-182.pdf). Accessed October 25, 2017.

  24. Emanuel, Ezekiel J., et al. “Attitudes and Practices of Euthanasia and Physician-Assisted Suicide in the United States, Canada, and Europe.” Journal of the American Medical Association 316.1 (2016): 79–90.

  25. Article 114 of the Swiss Penal Code.

  26. Hurst, Samia A., and Alex Mauron. “Assisted Suicide and Euthanasia in Switzerland: Allowing a Role for Non-Physicians.” British Medical Journal 326.7383 (2003): 271.

  27. Bosshard, G. “Assisted Suicide-Medical, Legal, and Ethical Aspects.” Praxis 101.3 (2012): 183–189.

  28. Huxtable, Richard. Euthanasia, Ethics and the Law: From Conflict to Compromise. Routledge, 2007.

  29. The Suicide Act 1961 (9 & 10 Eliz 2 c 60).

  30. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. Issued by The Director of Public Prosecutions (February 2010, updated October 2014). Accessed October 26, 2017 (https://web.archive.org/web/20090928080639/http://www.cps.gov.uk:80/consultations/as_keyfacts.html). Accessed June 27, 2018.

  31. SB 1512 (terminally ill; care choices); HB 2336 (end-of-life decisions; terminally ill).

  32. Bill H.1194 (An Act Relative to End of Life Options); Bill S.1225 (An Act Relative to End of Life Options).

  33. Emanuel, Ezekiel J., et al. “Attitudes and Practices of Euthanasia and Physician-Assisted Suicide in the United States, Canada, and Europe.” Journal of the American Medical Association 316.1 (2016): 79–90.

  34. LaFollette, Hugh, ed. Ethics in Practice: An Anthology. John Wiley & Sons, 2014.

  35. McMahan, Jeff. The Ethics of Killing: Problems at the Margins of Life. Oxford University Press, 2002.

  36. Wreen, Michael. “The Definition of Euthanasia.” Philosophy and Phenomenological Research 48.4 (1988): 637–653; Dresser, Rebecca. “Pre-Commitment: A Misguided Strategy for Securing Death with Dignity.” Texas Law Review 81.7 (2002): 1823–1847.

  37. All discussion regarding euthanasia conducted when the explicit consent of the individual concerned is unavailable, such as when the person is in a persistent vegetative state, in the case of young children, of the actively ending of the lives of infants, and the permissible scope of treatment decision on behalf of incompetent patients are beyond the scope of this article.

  38. Rachels, James. “Active and Passive Euthanasia.” New England Journal of Medicine 292.2 (1975): 78–80.

  39. McMahan, Jeff. The Ethics of Killing: Problems at the Margins of Life. Oxford University Press, 2002.

  40. Harris, Nonie M. “The Euthanasia Debate.” Journal of the Royal Army Medical Corps 147.3 (2001): 367–370.

  41. Traina, Cristina L.H. “Religious Perspectives on Assisted Suicide.” Journal of Criminal Law and Criminology 88.3 (1998): 1147–1154.

  42. Williams, Glenys. “L.W. Sumner: Assisted Death: A Study in Ethics and Law.” Criminal Law and Philosophy 7.2 (2013): 403–416.

  43. Emanuel, Ezekiel J., et al. “Attitudes and Practices of Euthanasia and Physician-Assisted Suicide in the United States, Canada, and Europe.” Journal of the American Medical Association 316.1 (2016): 79–90.

  44. DDE has often been invoked to justify an action that causes severe harm, such as death, if it does so as a side effect of promoting some good end. According to the DDE, at times it is permissible to cause a harm as a side effect (or “double effect”) of bringing about a good result, even if it were impermissible to cause such a harm as a means of bringing about the same good end.

  45. Williams, Glenys. “L.W. Sumner: Assisted Death: A Study in Ethics and Law.” Criminal Law and Philosophy 7.2 (2013): 403–416.

  46. Singer, Peter. Practical Ethics. Cambridge University Press, 2011; Foot, Philippa. “The Problem of Abortion and the Doctrine of Double Effect.” Oxford Review 5.1 (1967): 5–15; Glover, Jonathan. Causing Death and Saving Lives: The Moral Problems of Abortion, Infanticide, Suicide, Euthanasia, Capital Punishment, War and Other Life-or-Death Choices. Penguin, 1990.

  47. McMahan, Jeff. The Ethics of Killing: Problems at the Margins of Life. Oxford University Press, 2002.

  48. Kamisar, Yale. “Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case.” Journal of Criminal Law and Criminology 88.3 (1998): 1121–1146.

  49. Chemerinsky, Erwin. “Washington v. Glucksberg was Tragically Wrong.” Michigan Law Review 106.8 (2008): 1501–1516.

  50. Emanuel, Ezekiel J. “Euthanasia: Historical, Ethical, and Empiric Perspectives.” Archives of Internal Medicine 154.17 (1994): 1890–1901.

  51. Williams, Glenys. “L.W. Sumner: Assisted Death: A Study in Ethics and Law.” Criminal Law and Philosophy 7.2 (2013): 403–416.

  52. Sumner, L.W. “Reply to Williams.” Criminal Law and Philosophy 9.2 (2015): 331–335.

  53. Hart, H.L.A, with an Introduction by Leslie Green. The Concept of Law. Third Edition. Oxford University Press, 2012. According to Hart, primary rules are rules of obligation bearing directly on individuals or entities requiring them to carry out or abstain from certain actions; secondary rules, by contrast, are “rules about rules,” that is, rules that do not impose obligations, but rather confer powers.

  54. Abbott, Kenneth W., et al. “The Concept of Legalization.” International Organization 54.3 (2000): 401–419.

  55. Abbott, Kenneth W., et al. “The Concept of Legalization.” International Organization 54.3 (2000): 401–419, 412.

  56. Abbott, Kenneth W., et al. “The Concept of Legalization.” International Organization 54.3 (2000): 401–419, 413.

  57. Fuller, Lon L., and Robert Braucher. Basic Contract Law. West Pub. Co., 1964.

  58. Abbott, Kenneth W., et al. “The Concept of Legalization.” International Organization 54.3 (2000): 401–419, 415.

  59. In formal institutions, the degree of obligation, precision, and delegation may be obscured in practice by political pressure, informal norms, and other factors. Abbott, Kenneth W., et al. “The Concept of Legalization.” International Organization 54.3 (2000): 401–419, 404.

  60. New York law treats suicide assistance as a form of second degree manslaughter, and euthanasia as second degree murder. The Task Force on Life and Law recommends that these laws not be changed, and instead proposes the adoption of some public policies and medical practices concerning do-not-resuscitate orders, health care proxies, and surrogate decision making.

  61. Jackson, Emily, and John Keown. Debating Euthanasia. Hart Publishing, 2012.

  62. Casper, Juliet M. Review of When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context, by the New York State Task Force on Life and the Law. Journal of Criminal Law and Criminology 85.3 (1995): 833.

  63. Emanuel, Ezekiel J., et al. “Attitudes and Practices of Euthanasia and Physician-Assisted Suicide in the United States, Canada, and Europe.” Journal of the American Medical Association 316.1 (2016): 79–90.

  64. Scoccia, Danny. “In Defense of ‘Pure’ Legal Moralism.” Criminal Law and Philosophy 7.3 (2013): 513–530.

  65. Annas, George J. Some Choice: Law, Medicine, and the Market. Oxford University Press, 1998.

  66. Keown, John. Euthanasia, Ethics and Public Policy: An Argument Against Legalisation. Cambridge University Press, 2002.

  67. Jackson, Emily, and John Keown. Debating Euthanasia. Hart Publishing, 2012.

  68. Young, Robert. “Debating the Morality and Legality of Medically Assisted Dying.” Critical Notice of Emily Jackson and John Keown, Debating Euthanasia. Hart Publishing, 2013. Criminal Law and Philosophy 7.1 (2013): 151–160.

  69. Washington v. Glucksberg, 521 U.S. 702 (1997).

  70. Vacco v. Quill, 521 U.S. 793 (1997).

  71. Kamisar, Yale. “Foreword: Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Autonomy.” Michigan Law Review 106.8 (2008): 1453–1478.

  72. Cantor, Norman L. “On Kamisar, Killing, and the Future of Physician-Assisted Death.” Michigan Law Review 102.8 (2003): 1793–1842.

  73. Cantor, Norman L. “On Kamisar, Killing, and the Future of Physician-Assisted Death.” Michigan Law Review 102.8 (2003): 1793–1842.

  74. Scoccia, Danny. “In Defense of ‘Pure’ Legal Moralism.” Criminal Law and Philosophy 7.3 (2013): 513–530.

  75. Lillehammer, Hallvard. “Voluntary Euthanasia and the Logical Slippery Slope Argument.” The Cambridge Law Journal 61.3 (2002): 545–550.

  76. Ost, Suzanne. “Euthanasia and the Defence of Necessity: Advocating a More Appropriate Legal Response.” Criminal Law Review (2005): 355–370.

  77. Rachels, James. The End of Life: Euthanasia and Morality. Oxford University Press, 1986.

  78. Jackson, Emily, and John Keown. Debating Euthanasia. Hart Publishing, 2012.

  79. Dennis, Ian Howard. “On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse.” Criminal Law and Philosophy 3.1 (2009): 29–49.

  80. Smith, Steven D. “De-Moralized: Glucksberg in the Malaise.” Michigan Law Review 106.8 (2008): 1571–1591.

  81. Eskridge, William N., and Kevin S. Schwartz. “Chevron and Agency Norm-Entrepreneurship.” The Yale Law Journal 115.9 (2006): 2623–2632.

  82. Sunstein, Cass R. “The Right to Die.” The Yale Law Journal 106.4 (1996): 1123–1163.

  83. Stewart, Hamish. “The Normative Structure of Criminal Law: Moral or Political?” Criminal Law and Philosophy 9.4 (2015): 719–725.

  84. Norrie, Alan. Punishment, Responsibility, and Justice. Oxford University Press, 2000; Norrie, Alan. Crime, Reason and History: A Critical Introduction to Criminal Law. Cambridge University Press, 2014.

  85. Deigh, John. “Physician-Assisted Suicide and Voluntary Euthanasia: Some Relevant Differences.” Journal of Criminal Law and Criminology 88.3 (1998): 1155–1165.

  86. Sunstein, Cass R. “The Right to Die.” The Yale Law Journal 106.4 (1996): 1123–1163.

  87. Kamisar, Yale. “Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case.” Journal of Criminal Law and Criminology 88.3 (1998): 1121–1146; Pickering, John H. “The Continuing Debate over Active Euthanasia.” American Bar Association Bioethics Bulletin 3.2 (1994): 1–15; Childress, James F. “Civil Disobedience, Conscientious Objection, and Evasive Noncompliance: A Framework for the Analysis and Assessment of Illegal Actions in Health Care.” The Journal of Medicine and Philosophy 10.1 (1985): 63–84.

  88. Tadros, Victor. “The Ideal of the Presumption of Innocence.” Criminal Law and Philosophy 8.2 (2014): 449–467.

  89. Brown, Darryl K. “Democracy and Decriminalization.” Texas Law Review 86.2 (2007): 223–275.

  90. Petersen, Thomas Søbirk. “New Legal Moralism: Some Strengths and Challenges.” Criminal Law and Philosophy 4.2 (2010): 215–232.

  91. Vacco v. Quill, 521 U.S. 793 (1997).

  92. Feinberg, Brett. “The Court Upholds a State Law Prohibiting Physician-Assisted Suicide.” The Journal of Criminal Law and Criminology 88.3 (1998): 847–876. Justice Souter articulated three arguments in support of the right to assisted suicide. First, historically, society has not sanctioned assisted suicide. Second, state interest in bodily autonomy, which has been recognized in the case of abortion, may be applied in the context of physician-assisted suicide as well. Lastly, an individual is entitled to a physician’s assistance in dying when death is imminent.

  93. Tucker, Kathryn L. “In the Laboratory of the States: The Progress of Glucksberg’s Invitation to States to Address End-of-Life Choice.” Michigan Law Review 106.8 (2008): 1593–1611.

  94. Larson, Edward J. “Euthanasia in America: Past, Present, and Future: A Review of a Merciful End and Forced Exit. Michigan Law Review 102.6 (2004): 1245–1262.

  95. Williams, Glenys. Intention and Causation in Medical Non-Killing: The Impact of Criminal Law Concepts on Euthanasia and Assisted Suicide. Routledge, 2007.

  96. Curran Jr., Patrick M. “Regulating Death: Oregon’s Death with Dignity Act and the Legalization of Physician-Assisted Suicide.” Georgetown Law Journal 86.3 (1998): 725–749.

  97. Varelius, Jukka. “Two Challenges for Dignity as an Expressive Norm.” Criminal Law and Philosophy 6.3 (2012): 327–340.

  98. Dworkin, Ronald M. Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. Vintage, 1993.

  99. Rakowski, Eric. “The Sanctity of Human Life.” Review of Ronald Dworkin’s Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. The Yale Law Journal 103.7 (1994): 2049–2118.

  100. Robertson, John A. “Precommitment Issues in Bioethics.” Texas Law Review 81.7 (2003): 1849–1876.

  101. Capron, Alexander Morgan. “Life’s Sacred Value: Common Ground or Battleground?” Review of Ronald Dworkin’s Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. Michigan Law Review 92.6 (1994): 1491–1502; Kamisar, Yale. “Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case.” Journal of Criminal Law and Criminology 88.3 (1998): 1121–1146.

  102. Arras, John D. “Physician-Assisted Suicide: A Tragic View.” Journal of Contemporary Health Law and Policy 13.2 (1997): 361–389.

  103. Biggs, Hazel. Euthanasia, Death with Dignity and the Law. Hart Publishing, 2001.

  104. Foley, Kathleen M., and Herbert Hendin, eds. The Case against Assisted Suicide: For the Right to End-of-Life Care. Johns Hopkins Univeristy Press, 2002.

  105. Satz, Ani B. “The Case against Assisted Suicide Reexamined.” Michigan Law Review 100.6 (2002): 1380–1407.

  106. Kamisar, Yale. “Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case.” Journal of Criminal Law and Criminology 88.3 (1998): 1121–1146.

  107. Satz, Ani B. “The Case Against Assisted Suicide Reexamined.” Michigan Law Review 100.6 (2002): 1380–1407.

  108. Rountree, Meredith Martin. “Criminals Get All the Rights: The Sociolegal Construction of Different Rights to Die.” Journal of Criminal Law and Criminology 105.1 (2015): 149–175.

  109. Epstein, Richard A. Mortal Peril: Our Inalienable Right to Health Care? Addison-Wesley Publishing Company, 1997.

  110. Brennan, Troyen A. “Moral Imperatives Versus Market Solutions: Is Health Care a Right?” Review of Richard Epstein’s Mortal Peril: Our Inalienable Right to Health Care? The University of Chicago Law Review 65.4 (1998): 345–364.

  111. See, for example, in the Netherlands (https://www.government.nl/topics/drugs). Accessed June 27, 2018.

  112. See, for example, in Uruguay (archivo.presidencia.gub.uy/sci/leyes/2013/12/cons_min_803.pdf). Accessed June 27, 2018.

  113. See, for example, in California (http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_1401-1450/sb_1449_bill_20100930_chaptered.pdf). Accessed June 27, 2018.

  114. See, for example, in Colorado (https://www.fcgov.com/mmj/pdf/amendment64.pdf). Accessed June 27, 2018.

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Golan Luzon.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Luzon, G. The Practice of Euthanasia and Assisted Suicide Meets the Concept of Legalization. Criminal Law, Philosophy 13, 329–345 (2019). https://doi.org/10.1007/s11572-018-9474-9

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-018-9474-9

Keywords

Navigation