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Assisted Suicide as Legal and Ethical Challenge: Current Debates in Germany and Austria

It is well-known that in Europe the Benelux countries Belgium, Luxembourg, and the Netherlands decriminalized and legalized euthanasia and assisted suicide almost 20 years ago.[1] In March 2021, Spain became the fourth European country to legalize voluntary euthanasia in certain circumstances. According to this law, that most probably will take effect in June 2021, the permission to terminate one’s life concerns adults with “serious and incurable” diseases that cause “unbearable suffering”.[2] A debate on voluntary euthanasia is taking place also in Portugal. In January 2021, the Portuguese parliament voted in favor of a bill to legalize euthanasia, but in March the Constitutional Court ruled that the bill was unconstitutional. Consequently, Portugal’s President de Sousa vetoed the bill to legalize euthanasia.[3]

In more and more countries in Europe, the trend can be observed that the prohibition of euthanasia as well as of assisted suicide is increasingly being questioned at the societal level and that their legal prohibitions are coming under pressure to be justified.

In Germany and Austria voluntary euthanasia is prohibited. However, in both countries intensive debates on assisted suicide are currently taking place. Both respective Federal Constitutional Courts have declared the ban on assisted suicide to be unconstitutional – in Germany in February 2020;[4] in Austria in December 2020.[5] In both countries, legislators must now devise a legal solution. Behind the scenes, intensive orientation debates are taking place between the political parties. It is becoming clear that the major parties are under pressure to act as a result of the rulings of the Highest Courts. On their own initiative, they would have preferred to leave the matter as it was before. In Germany, only in 2015 as result of long and controversial ethical and political debates, a law was adopted (§ 217 of the Criminal Code) that prohibited commercial promotion of assisted suicide, excluding, however, the ban of supportive acts of related parties. The legislator’s intention at that time was to prevent the normalization of assisted suicide, avoiding any incitement to it and counteracting rising pressure on vulnerable people. In Austria assisting in suicide was forbidden as a criminal offense.

With regard to assisted suicide, even though the Highest Courts of Germany and Austria differ in their argumentation in the face of what are different Constitutions and different legal and jurisdictional traditions, there are comparable aspects of argumentation that – in my opinion – are highly problematic from an ethical point of view. In the following, I would like to point out some of these aspects which are playing an increasingly important role also in the public discussion.

A basic aspect consists in the interpretation that the right to self-determination includes the right to die. This right to die is seen not only in being entitled to refuse life-sustaining measures, but also in terms of the right to decide for oneself when and how to die, by committing suicide or by requesting assisted suicide. According to this argumentation, the legal decriminalization of suicide, that took place a long time ago, must lead also to a decriminalization of assisted suicide. In the background is also the argumentation that the decriminalization of suicide should lead also to its moral acceptance. Dying by suicide and, consequently, the right to request assisted suicide are seen as guaranteed by rights of freedom that are rooted in the dignity of the person. The right to a self-determined death through self-committed or assisted suicide, according to this argumentation, represents an ethically legitimate expression of personal freedom.

This view reflects a broad and at the same time individualistic interpretation of the personal right to a self-determined life. We can observe two shifts and narrowings in emphasis with regard to the neuralgic philosophical and ethical questions concerning the understanding of moral autonomy and human dignity: (1) moral autonomy is understood reductively as self-determination in a voluntaristic sense and (2) dignity is narrowed subjectively, in a twofold sense: (a) formally, dignity is understood as mere respect for free will, to which a limit is set exclusively where the rights of third parties are affected, and (b) the substantive determination of dignity depends on one’s own, self-imposed standards and on one’s subjective state of mind. The understanding of a moral autonomy, which is not only realized in the individual freedom of will, but by the orientation to objective criteria of morality with the claim of generalizability and also by considering the social responsibility of individual action, even if rights of third parties are not directly violated, is thus rejected.

Furthermore, this argumentation in favor of assisted suicide does not distinguish between “letting die” and “killing”, but rather considers both as morally equivalent. From a moral point of view, however, there consists a significant difference on the one hand at the level of causality of the death, and on the other hand in the intention of the acting persons. In a similar way, the difference between a patient’s right to refuse a treatment or a medical intervention and the right to claim a medical intervention is made equivalent. From an ethical point of view, on the one hand the right to refuse a medical intervention and to change one’s mind during the treatment, refusing its continuation, even though this would lead to one’s death, is guaranteed by the right of freedom of conscience and to physical and psychic integrity. On the other hand, the right to seek a medical intervention has to be measured against objective parameters such as the principle of nonmaleficence and the medical appropriateness in relation to a patient’s health situation.

Besides the emphasis on autonomy as individualistic freedom of choice, the argumentation in favor of assisted suicide is characterized by a euphemistic interpretation of suicide as a kind of free self-expression.[6] From a philosophical and anthropological point of view we can discuss whether suicide represents the realization of the agent’s free will or rather an act of self-destruction, because it would be contradictory to think that we can realize the free will by destroying its conditions of possibility. Besides this philosophical debate, the idealization of voluntary (self-committed or assisted) suicide as expression of human dignity and realization of freedom, however, does not do justice to the concrete, often dramatic and tragic circumstances that motivate the will to die. This euphemistic vision of suicide does not take sufficient account of the social and cultural factors that always influence such a decision. Suicidal tendency especially in a medical context, is not usually an expression of the highest possible degree of freedom, but is often tragically motivated by pain or fear of loss of control in the context of serious illnesses. Individual decisions, especially in situations of social dependence, are decisively influenced by how the environment relates to the person, and conversely, the individual decision of a person has a profound and long lasting effect on her social environment. Therefore, the emphasis with which the right to self-determined dying is defended, including the freedom to commit suicide and to seek assisted suicide, is surprising.

Moreover, it is questionable whether it is possible to clarify whether one’s will to die is final or temporary. I fear that in concrete situations of people who are sick of their life, legally legitimized and guaranteed assisted suicide will not represent an additional option alongside the option to continue living, but rather result in a focus on this option.

These are only some of the ethical aspects that, in my opinion, in the judgment of the Highest Courts of Germany and Austria are not considered properly.

[1] See: Euthanasia in Belgium, the Netherlands and Luxembourg. Prescrire Int. 2013 Nov;22(143):274-8. PMID: 24427846.

[2] (17.04.2021).

[3] See: (17.04.2021).

[4] See: (17.04.2021).

[5] See: (17.04.2020).

[6] Cf. Eberhard Schockenhoff: Zwischen Autonomie und Lebensschutz. Zum Suizidassistenz-Urteil des BVerfG vom 26. Februar 2020, in: Konrad-Adenauer-Stiftung e. V.: Analysen & Argumente Nr. 389 (Mai 2020), 2; online: (17.04.2021).