Helping Others Die

HELPING OTHERS DIE: COMPARING POLICIES IN BELGIUM TO THOSE IN THE U.S.

By: Ellie Bastian, Volume 101 Staff Member

In the opening scenes of the Italian film Miele a woman makes her monthly journey from Europe to a Mexican pharmacy to buy Lamputin, a drug meant to end a pet’s life.[1] She brings two doses back to Italy to use in her line of work: illegally helping terminally-ill humans end their lives.[2]

People living in countries and states without legal euthanasia or doctor-assisted suicide have long turned to similar, unregulated methods.[3] In recent decades, legal frameworks across the globe[4] have emerged and evolved in response to a growing acceptance[5] of the right for terminally-ill individuals to choose to die. These legal frameworks can vary widely in scope, particularly in terms of exactly who is entitled to choose an assisted death: May someone battling depression choose to die?[6] Someone in the mid-stages of progressing Alzheimer’s disease?[7] What about a terminally ill child?[8] This Blog Post looks at recent legal developments in Belgium—the country with the most permissive euthanasia laws—and compares those laws to the physician-assisted suicide laws that exist in parts of the United States.

I. DISTINGUISHING EUTHANASIA FROM ASSISTED SUICIDE

Euthanasia is the “intentional killing by act or omission of a dependent human being for his or her alleged benefit.”[9] It can be broken into two forms: active euthanasia and passive euthanasia.[10] An example of the former is administering a lethal injection; an example of the latter is withholding food and water.[11] By contrast, assisted suicide occurs “when someone provides an individual with the information, guidance, and means to take his or her own life with the intention that they be used for this purpose.”[12] This is often in the form of a prescribed medication that the patient self-administers at home.[13]

II. BELGIUM’S EUTHANASIA LAWS: EXTENDING THE RIGHT TO DIE TO CHILDREN

In 2002, Belgium joined the Netherlands as the second country in the world to legalize euthanasia.[14] The Belgian law says that patients who suffer from “intractable and unbearable pain” are eligible for euthanasia, along with those in a coma or vegetative state who clearly stated their preference for it while they were lucid.[15] Psychological ailments like depression can qualify someone for the “intractable and unbearable pain” requirement.[16]

Belgium further liberalized its euthanasia laws in 2014 when the parliament removed the age limit for terminally-ill children—becoming the first country in the world to do so.[17] The requirements are stricter for children, who must, among other things: (1) be conscious of their decision; (2) be terminally ill; (3) be close to death; (4) be suffering beyond any medical help; and (5) have their parents’ approval.[18] Though most people in Belgium support extending euthanasia to children,[19] some members of religious groups remain opposed.[20] In September, a terminally-ill minor was the first to be helped to die under the new law.[21]

III. LIMITATIONS OF DOCTOR-ASSISTED SUICIDE LAWS IN THE UNITED STATES

Euthanasia is illegal in the United States.[22] However, physician-assisted suicide was legalized by ballot measures or legislation in several states (Oregon,[23] Washington,[24] Vermont,[25] and California[26]) and, arguably, by a court decision in Montana.[27] Colorado, and likely the District of Columbia, will join those states in early 2017.[28]

Of the four states with active assisted suicide laws, Oregon was the first.[29] Its provisions were then used as a model for Washington and Vermont.[30] Oregon’s Death with Dignity Act requires, among other things, that (1) the patient is 18 years or older; (2) the patient is suffering from a terminal illness that will lead to death in six months; and (3) that the request is signed by two witnesses, one of whom is neither related to the patient, nor the patient’s doctor, nor someone who would benefit from the patient’s death (e.g. someone entitled to part of the patient’s estate).[31] Notably, none of the states with physician-assisted suicide laws permit its use for psychological disorders like depression.[32]

Some think that the Oregon-style laws don’t do enough to prevent potential coercion, pressure, or general elder abuse.[33] In order to alleviate these concerns, the newer California law requires that doctors have a private consultation with the patient.[34] It also contains a ten-year sunset provision requiring the law to be reauthorized.[35] Editorial boards at the Washington Post,[36] the LA Times,[37] and USA Today[38] all endorsed the new law, in part citing studies from Oregon that tend to dispel the fears of coercion among minority groups or poor families.[39]

Many Americans remain unconvinced: despite the momentum in recent years—particularly after 29-year-old Brittany Maynard’s choice to move to Oregon to use it[40]—other states’ similar bills have failed to become law.[41] It seems unlikely that a Belgium-style assisted-suicide law, extending the permissible range to include either psychological suffering or terminally-ill children, will be passed any time soon in the United States.[42]

  1. Miele (“Honey”) (Buena Onda 2013).
  2. Id.; see also Stephen Holden, Angel of Mercy, Angel of Death, N. Y. Times (Mar. 6, 2014), www.nytimes.com/2014/03/07/movies/in-honey-a-woman-offers-the-dying-a-sweeter-departure.html.
  3. See, e.g., Diane Martindale, A Culture of Death, Sci. Am. (June 1, 2005), https://www.scientificamerican.com/article/a-culture-of-death/?page=2 (“[W]ithout medical supervision and formal regulations, euthanasia is happening in horrific circumstances, similar to back-alley abortions.”).
  4. Some countries’ right-to-die policies have stemmed not from legislation, but from court decisions determining the permissible parameters of doctors’ conduct. See, e.g., Vinod Srivastava, Euthanasia: A Regional Perspective, Nat’l Acad. of Scis. (July 2014), https://www.ncbi.nlm.gov/pmc/articles/PMC4158780/ (noting that while active euthanasia is illegal in India, courts have found passive euthanasia permissible in some circumstances).
  5. Though only one in three Americans supported euthanasia in the late 1940s, more than two in three do now—a rate that has been steady for twenty years. See Justin McCarthy, Seven in Ten Americans Back Euthanasia, Gallup (June 18, 2014), www.gallup.com/poll/171704/seven-americans-back-euthanasia.aspx.
  6. In the Netherlands euthanasia is permitted for “insufferable” mental illness. See Senay Boztas, Netherlands Sees Sharp Increase in People Choosing Euthanasia Due to “Mental Health Problems”, Telegraph (May 11, 2016), www.telegraph.co.uk/news/2016/05/11/netherlands-sees-sharp-increase-in-people-choosing-euthanasia-du/.
  7. Alzheimer’s patients often fall outside the bounds of assisted suicide laws: they must still be “of sound mind,” but also must have a doctor confirm that they likely have less than six months to live. See Robin Marantz Henig, The Last Day of Her Life, N.Y. Times (May 14, 2015), www.nytimes.com/2015/05/17/magazine/the-last-day-of-her-life.html.
  8. In 2014 Belgium became the first country in the world to eliminate the age limit for euthanasia. See Ian Traynor, Belgian Law on Euthanasia for Children, with No Age Limit, Will Be First in World, Guardian (Feb. 12, 2014), https://www.theguardian.com/world/2014/feb/12/belgium-legalise-euthanasia-children-age-limit#ifrndnloc.
  9. Euthanasia and Assisted Suicide, Minn. Citizens Concerned for Life, www.mccl.org/euthanasia-and-assisted-suicide.html (last visited Nov. 7, 2016).
  10. Id.
  11. Id.
  12. Id.
  13. See FAQs, Death with Dignity, https://www.deathwithdignity.org/faqs/ (last visited Nov. 7, 2016).
  14. See Euthanasia and Assisted Suicide Laws Around the World, Guardian (July 17, 2014), https://www.theguardian.com/society/2014/jul/17/euthanasia-assisted-suicide-laws-world.
  15. Id.
  16. See Volkan Olmez, Physically Healthy 24-Year-Old Granted Right to Die in Belgium, Newsweek (June 29, 2015, 7:17 PM), europe.newsweek.com/healthy-24-year-old-granted-right-die-belgium-329504?rx=us. Other patients that have fallen into this category include a woman suffering from a “botched sex-change operation” and a pair of twins who were “deaf and going blind and believed they had nothing left to live for.” Guardian, supra note 14.
  17. See Guardian, supra note 14.
  18. Id.
  19. See Belgium’s Parliament Votes Through Child Euthanasia, BBC (Feb. 13, 2014), www.bbc.com/news/world-europe-26181615 (noting the “broad support” for the law).
  20. See, e.g., PBS Newshour: Belgium’s Euthanasia Law Gives Terminally Ill Children the Right To Die (PBS television broadcast Jan. 17, 2015) (“We know that children have a different idea about the irreversibility of death. . . . You can’t decide on death when you’re 6, 7, 8, 9 years old.”).
  21. See First Child Dies by Legal Euthanasia in Belgium, CBS News (Sept. 19, 2016), www.cbsnews.com/news/child-dies-by-euthanasia-in-belgium-where-assistance-in-dying-is-legal.
  22. See Euthanasia and Assisted Suicide, supra note 9.
  23. Oregon Death with Dignity Act, Or. Rev. Stat. § 127.800 (1994).
  24. Washington Death with Dignity Act, Rev. Code Wash. § 70.245 (2008).
  25. Vermont Patient Choice and Control at End of Life Act, Vt. Stat. Ann. tit. 19, § 5281 (2013).
  26. End of Life Option Act, Cal. Health & Safety Code § 443 (2016).
  27. Baxter v. Montana, 224 P.3d 1211 (Mont. 2009). Until recently, New Mexico fell into this same category—a district judge had ruled it permissible, but the state Supreme Court reversed that decision this summer. See Scott Sandlin, New Mexico Assisted Suicide Law Affirmed, Albuquerque Journal (June 30, 2016, 3:24 PM), https://www.abqjournal.com/801082/nm-supreme-court-rules-on-aid-in-dying-workers-comp.html.
  28. See D.C. Council Again Passes Death with Dignity Act of 2015, Death with Dignity (Nov. 15, 2016), https://www.deathwithdignity.org/new/2016/11/dc-council-again-passes/ (explaining that the Council of the District of Columbia has sent its own Death with Dignity bill to the mayor, following on the heels of Colorado’s successful ballot measure).
  29. See Euthanasia and Assisted Suicide Laws Around the World, supra note 14.
  30. Id.
  31. See Emily Barone, See Which States Allow Assisted Suicide, Time (Nov. 3, 2014), time.com/3551560/brittany-maynard-right-to-die-laws/.
  32. Benedict Carey, Assisted Suicide Study Questions Its Use for Mentally Ill, N.Y. Times (Feb. 10, 2016), www.nytimes.com/2016/02/11/health/assisted-suicide-mental-disorders.html?_r=0.
  33. See, e.g., Euthanasia and Assisted Suicide, supra note 9 (“38.6 percent of patients committing suicide in Oregon have expressed concern about being a ‘burden’ on others.”); see also Ian Lovett, California Legislature Approves Assisted Suicide, N.Y. Times (Sept. 11, 2015), www.nytimes.com/2015/09/12/us/california-legislature-approves-assisted-suicide.html (“[L]ow-income and underinsured patients would inevitably feel pressure from family members to end their own lives in some cases, when the cost of continued treatment would be astronomical compared with the cost of a few lethal pills.”).
  34. Lovett, supra note 33.
  35. Editorial Board, California’s Landmark Right-to-Die Bill, Wash. Post (Sept. 22, 2015), https://www.washingtonpost.com/opinions/californias-landmark-right-to-die-bill/2015/09/22/8c070eea-5e38-11e5-b38e-06883aacba64_story.html.
  36. See id.
  37. See Editorial Board, Giving Patients Aid in Dying is Compassionate Care, L.A. Times (June 9, 2016, 5:00 AM), www.latimes.com/opinion/editorials/la-ed-right-to-die-20160608-snap-story.html.
  38. See Editorial Board, Physician-Assisted Suicide Laws Grant Dignity, USA Today (Oct. 22, 2015, 7:33 PM), www.usatoday.com/story/opinion/2015/10/20/our-view-physician-assisted-suicide-california-oregon-editorials-debates/74282866/.
  39. See id.
  40. See Brittany Maynard, My Right to Death with Dignity at 29, CNN (Nov. 2, 2014), www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/index.html (“I will die upstairs with my husband, mother, stepfather, and best friend by my side and pass peacefully. I can’t imagine trying to rob anyone else of that choice.”).
  41. See Lovett, supra note 33.
  42. See, e.g., Benedict Carey, supra note 32 (“I don’t know of anyone ever proposing [extending assisted-suicide to adults with psychological ailments] here, or of any poll supporting anything but self-administration by mentally competent, terminally ill adults.”).
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