Belgium’s Legalization of Euthanasia<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

By Jacqueline Herremans

 

In the first of two reports on legal developments involving Humanist issues in Belgium, Jacqueline Herremans describes the efforts leading to the decriminalization of euthanasia, and the nature and provisions of the new law.

 

On 23 September, 2002, the Belgian law on euthanasia came into force. How had it been possible to open this difficult ethical debate, let alone succeed in passing a law, in a country like Belgium with a deeply Catholic background which at the beginning of the 1990s remained traumatized by the question of abortion?

 

The Struggle to Decriminalize Euthanasia

After the April 1990 vote on the decriminalization of abortion, King Baudouin had made public the “serious problem of conscience” which confronted him. He was concerned that the proposed law would bring about a “decrease in respect for the life of those who are the weakest”. The King thereby invoked his right to freedom of thought, which is the right of any citizen, and requested that Government and Parliament find a legal solution to the problem. The Prime Minister belonged to the CVP, the Flemish Catholic party. His party had opposed the passage of the law initiated by Parliament. The Government he presided over declared that, for one day, the King was unable to reign, during which interval the Government formalized the ratification and promulgation of the law.

 

One of the consequences of that painful debate was to render purely symbolic, during the final legislative periods, all efforts by Members of Parliament to introduce proposals concerning end-of-life decisions.

 

The Catholic parties, and particularly the CVP, vetoed all such proposals. It was necessary to wait until the elections of 1999 and the formation of a government comprising six parties, including liberal, socialist, and green viewpoints but without the CVP. This “rainbow” coalition invited Parliament to take the initiative in matters of ethics, including the problems of end of life. The debate could no longer be muzzled.

 

The work of Parliament from 1999 until the vote on the euthanasia law on 16 May, 2002 is impossible to summarize; it included more than 40 Senate hearings and countless hours of discussion.

 

An important step had previously been achieved by the Consultative Committee on Bioethics which, in 1997, had declared the timeliness of legal regulation of euthanasia. Another contributory factor in influencing the climate was the result of a comparative survey conducted by the Universities of Brussels, Ghent (Belgium) and Nijmegen (Netherlands), published in the prestigious medical journal The Lancet in 2000, which revealed that in Belgium, which had no regulations on end-of-life decisions, three-quarters of medical decisions to interrupt life were reached without consulting the patient – the opposite of what happens in The Netherlands.

 

All the usual arguments of the opponents had been raised: the law goes too far; the law does not tackle the problem of children; we should first of all improve palliative care, following which there would no longer be requests for euthanasia; it would initiate a slippery slope; the physicians know perfectly well what they have to do, therefore why to force them to make a declaration; and so on.The difference with previous decades was that the climate was sufficiently altered as to enable us to express our arguments without their being rejected out of hand.

 

The Argument for Euthanasia

We do not deny that there is a viewpoint which asserts that, while a person may claim a right to live, he or she nevertheless has no right over ending his or her own life. Irrespective of how this viewpoint is justified, whether because of the Will of God or because of the fact that man is a social animal, this viewpoint is quite honourable and justifies the fact that those who share it reject for themselves the thought of shortening a life to which they confer a value inferior to none. This viewpoint was expressed in law by a strict condemnation of euthanasia.

 

However, one must recognize that such a viewpoint is no longer shared by all members of our society. There is a different viewpoint which places the autonomy of the person at the centre of the debate and which is shared also by some Catholic people who want to live their faith in freedom and responsibility.

 

Any pluralistic and democratic society must allow every citizen to live this last act of their life, that of choosing their own death, according to their private convictions; such a society must not fail to favour the coexistence of different concepts of the direction that one wishes to give to one’s life or one’s death, rather than allow one kind of morality to prevail over another. That freedom cannot be obtained clandestinely, that is, as long as euthanasia is criminalized, as long as the compassionate gesture of the physician who meets a request for euthanasia is indictable as that of an assassin. In other words, the role of the law is not to impose one moral standard over another, which was actually the case before the change of the law.

 

Main Features of the Euthanasia Law

The new law is about autonomy, the right to choose, solidarity and freedom. Its main elements are as follows.

 

Ï  The request of the patient is at the centre of the debate. Without this request, there is no question of euthanasia, defined as the act, performed by a third person, in order to end the life of a person at the request of this person. This is the same definition as in Dutch law. Indeed, the Dutch experience provided a valuable model, though the Belgian legislation takes account of the specificities of the Belgian situation.

 

Ï  The Criminal Code remains unchanged but this specific law introduces the decriminalization of euthanasia if the physician follows the preconditions foreseen by the law.

 

Ï  To avoid prosecution, the physician – and the physician alone – must respond only to the voluntary, written, well-thought-out and reiterated request by an adult patient who is in a serious and incurable medical condition, and experiencing unbearable physical or mental suffering. The physician must also inform the patient of his state of health and life expectancy, and of the possible therapeutic measures and available palliative care.

 

Ï  The physician must hold a consultation with a second physician.

 

Ï  If death is not imminent, the physician must request a consultation with a third physician, either a psychiatrist or a specialist of the patient’s pathology.

In that case, a delay of at least one month between the request and the euthanasia has to be respected.

 

Ï  As is the case in The Netherlands, there is a system of control. The physician has to declare the act of euthanasia to a Federal Commission composed of 8 physicians, 4 jurists and 4 persons from environments entrusted with the problems of patients suffering from an incurable disease. This Commission has a second mission: to establish every other year a statistical and evaluative report, and to suggest recommendations.

 

Ï  The form of living will called “anticipated declaration” is officially recognized but strictly limited to those who will lapse into a state of irreversible unconsciousness.

Freedom and self-autonomy form the cornerstones of this law. No physician is bound to perform euthanasia. But the physician who, calling upon his right of freedom of conscience, refuses to perform euthanasia, must transfer the patient’s medical record to a colleague of the patient’s choosing.

 

A question that is raised very frequently is whether citizens of foreign countries can come to Belgium for euthanasia. The preconditions and procedure of the law clearly establish the principle of a strong doctor-patient relationship. Outside of this long-standing personal contact, it is not possible to consider conducting legal euthanasia.

 

Conclusion

The new law represents a very important step towards the right to choose. I must conclude with a special thought for Mario Verstraete who decided to die in beauty on 30 September of this year. Mario, a member of the board of the Dutch-speaking Association for the Right to Die in Dignity, was the only patient who was heard first-hand in the Senate hearing. He was suffering from multiple sclerosis. In full serenity, he spoke of his life and of his wish that his request to die in dignity be respected when he so decides. And he made his decision after the vote but had to wait until the law was enforced.

 

Goodbye, Mario. You were a fighter for this law of freedom and you may have been the first to call upon it. I shall remember you as a real lover of life. Let us hope that the lead given by The Netherlands and Belgium on euthanasia will soon be followed by other countries. Jacqueline Herremans is a lawyer. She is Centre d’Action Laïque’s Representative to the IHEU General Assembly and President of the Belgian Right to Die Society (ADMD).

 

European Council Recommendation 1418 on the Rights of the Dying

 

The Belgian law on euthanasia must be seen in the wider context of the efforts by right-to-die organizations at the European level. On 25 June, 1999, in the absence of a substantial number of its members, the Parliamentary Assembly of the European Council adopted Recommendation 1418, entitled “Protection of the human rights and dignity of the terminally ill and the dying”. To a number of honourable proposals about living wills and the recognition of the right to refuse treatment, was added an explicit condemnation of euthanasia which upheld the absolute prohibition of intentionally putting an end to the life of incurable or dying patients, referring to Article 2 of the European Convention of Human Rights (which states that “no one shall be deprived of his life intentionally”); “recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person”; and “recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death”.

 

While one need not give this recommendation more importance than it deserved (since it had no constraining power), nevertheless opponents to the decriminalization of euthanasia repeatedly referred to it, embellished as it was by the aura of reference to the European Convention on Human Rights. Furthermore the European Court of Human Rights alluded to it in the recent case of Diane Pretty, whose request to die with dignity was rejected.

 

Has recommendation 1418 been superseded? It would certainly be premature to bury it. Nevertheless, it has been subjected to serious criticism and will in all likelihood turn out to be but a temporary stage, indeed a mistake, in the European Council’s debate around end-of-life questions.

 

Euthanasia, and in particular the new Dutch and Belgian legislation on the issue, was on the agenda of a hearing held in Paris in October 2002 by the Committee on Social Questions, Health, and Family.

 

Mrs Gatterer, of the Austrian Parliament, whose report had initiated Recommendation 1418, presided. But the tone of the debate had changed since 1999. In contrast to the discussions that led to Recommendation 1418, the voices of those defending the right to die were heard: I was invited to speak, as was Dr. Michael Irwin, President of the World Federation of Right-to-Die Societies. Traditional voices, too, were heard of course. An observer representing the Holy See asserted that there was but one single morality – that derived from the Decalogue – and indulged in the shortcut between euthanasia and Nazism (to wide criticism).

 

Dick Marty, a member of the Swiss Parliament entrusted with preparing the report, concluded the session by stating that “the Belgian and Dutch legislators in no way stand accused. Whatever our judgment on their position, we should respect it – these are countries with a great humanist tradition, where life is clearly valued very highly... The 1999 decision of the Council of Europe against euthanasia does not stop there. The debate goes on.”

 

Jacqueline Herremans