Assisted dying before the ECtHR: General rules for national regulations

Abstract

National regulatory frameworks for assisted dying vary from an absolute ban to rather liberal, albeit conditional, approaches to the practice of assisting patients in terminating their lives. Countries that take a restrictive stance towards assisted dying emphasize the ‘absolute’ nature of the right to life, whereas states that exhibit a more permissive regime put more emphasis on the right to respect for private life, as including in particular the right to self-determination at the end of life. Although the European Court of Human Rights uses the margin of appreciation in such a way as to avoid taking a normative stance on the issue of assisted dying, its case law comprises general rules that have to be complied with when regulating assisted dying. This article examines the reasoning of the Court in cases concerning assisted dying and discusses these rules as they apply to countries that have in place restrictive or permissive assisted dying regimes. This human rights framework will become increasingly important as more and more countries are introducing or considering legislation on assisted dying. Against this background, this article aims at providing insight into what is expected of national regulations, from a human rights perspective, in the context of assisted dying.

The Belgian euthanasia law under scrutiny of the highest courts

“…The ECtHR allows member States to decriminalise MAID as long as their national law: (1) clearly and carefully defines the scope of the right to request medical assistance in dying; (2) provides for a procedure that can guarantee that the request is voluntary; (3) contains increased protective measures for vulnerable persons; and (4) regulates with precision the decisions that the persons tasked with assessing the request have to take to ensure the fulfilment of the eligibility criteria. 7 …”

Euthanasia of a person with a psychiatric disorder does not violate the European Convention on Human Rights (Mortier v. Belgium [no. 78017/17])

“…Member States may decriminalize medical assistance in dying, but must do so in a way that guarantees the protection of the right to life (Article 2). More specifically, this will only be the case when the applicable law: (a) clearly and carefully defines the scope of the right to request medical assistance in dying; (b) provides for a procedure that can guarantee that the request is voluntary; (c) contains increased protective measures for vulnerable persons; and (d) regulates with precision the decisions that the persons tasked with assessing the request have to take to ensure the fulfillment of the due care criteria [ 6 , 7 ].…”