Euthanasia and/or assisted suicide: for or against?

Estonia is one of the European countries where assisted suicide is not a crime, but for ethical reasons, as well as due to the lack of an unambiguous legal environment, doctors do not assist patients to commit suicide (Sootak, 2017, 5). In Europe, these countries include Switzerland, Germany, Sweden (Sveriges Rigsdag, 2014, 2) and Finland (Nieminen, 2018, 1).

In Estonia's recent past, there has been a case that has received wide publicity and media coverage in society (Jane Paberiti lugu, 2019), where Jane Paberit, a 47-year-old former dance teacher and mother of four children, was suffering from an irreversible muscle disease (ALS - amyotrophic lateral sclerosis) that gradually shuts down the body until the sufferer is held hostage and dies. She was diagnosed with ALS in 2017, the last year she was able to dance. To escape the final stages of a serious illness, she sought permission to travel to a clinic in Switzerland to commit assisted suicide. She was granted this permission and in spring 2019 she left to die. As this was an unprecedented story in Estonia, the media covered her farewell party with friends and acquaintances and a reporter accompanied her to the Swiss clinic.

In May 2023, the Estonian population was surprised by Paul Tammert, who appeared on the TV show ‘The Full Hour’ to present a device he had created and plans to start providing assisted suicide services. He had previously studied Estonian law, consulted the police, the prosecutor's office and the Ministry of Social Affairs to see if and to what extent his activities were regulated by laws. It turned out that, in principle, it was not.

The venture, now nicknamed the ‘suicide bureau’, began to work. To date, he has done so three times: two people got their way and left this world, while the third assisted suicide failed. The reason is unclear; the lethal gas had run out and Tammert had to go to Tallinn to get a new cylinder. In the meantime, the man who had placed the order started to get drunk and his mother called the police and an ambulance (Pukk, 2023). The police took the device into custody and opened criminal proceedings.

One of the Estonia's most prominent medical law specialists, Attorney Ants Nõmper, admitted that he has been teaching law students for years that suicide is a legal act and the main difference is who pulls the trigger. This should come as a surprise to no one, including politicians, yet nothing has been done on regulation. Referring to the case of Jane Paberit, Ants Nõmper said that she had raised the issue in a very visible way in society and showed that if there is a problem, there is a solution (Anvelt, 2023). Nõmper said that since politicians did not start to deal with the issue at the time and the field was not regulated in Estonia, such service providers emerged. Thus, it seems that assisted suicide is allowed in Estonia: killing another person is prohibited and punishable by law (Penal Code § 113). Suicide is not legally forbidden or punishable, which is why assisted suicide is legal. Ants Nõmper is not sure whether the medical community would want assisted suicide to be a health service, because then there would be a situation where doctors would start providing it. To avoid such situations, an analysis of the definition of end-of-life decisions needs to be developed together with doctors, medical ethics experts, patient organisations and others. If you legalise euthanasia, which would be under the control of doctors, the doctor would press a button and be able to reverse the procedure if necessary. But as long as we don’t want to, it is fair to say that it is not a health service and therefore no licence is needed. As the Tammert case set a precedent, politicians are obviously in a difficult position, as so far no progress has been made on this issue. What is clear, however, is that politicians will not be making any decisions on this issue in the coming months or years. This requires a broad, long and in-depth public debate (Süüdistus: isehakanud surmapakkuja¼., 2024).

Tammert disagrees with the prosecution's suspicion of illegal economic activity. As medical activities require specific permits and regulations, which he did not have, the proceedings were opened under the prohibited economic activities section. The content of the suspicion remained incomprehensible to Mr Tammert because ‘the content of the service was, according to the contract concluded, the provision of advice and the renting of the case’. Investigators, however, find that Tammert, by renting a device designed to end a person's life, was providing a health service. Tammert believes that the whole wording of the law relating to health care is incomprehensible because a healthy person does not need to be cured and health is least of all about dying (Anvelt, 2023).

In October 2023, the Southern District Prosecutor's Office of Estonia sent a criminal case against Tammert to court, charging him with the illegal provision of health care. Questions of life and death are very important, so they need to be very clearly regulated. Under current law, there is no regulation in Estonia that allows one person to decide alone on the life and health of another. Even less can a person who lacks any competence to assess and act in this area (Suitsiidiabi pakkunud Paul Tammert¼, 2023). A conviction of unlicensed economic activities in the health sector may be punishable by a fine or up to 3 years imprisonment. In May 2024, the court sentenced Tammert to probation (Kriminaalasi 1-23-4893).

The authors of this article agree with the above position that assisted suicide is not a health care service—health care should be aimed at treating the patient or alleviating their complaints, whereas assisted suicide does not do this, but it is an induction of death. On the other hand, Tammert's activities were economic, as his service was paid for.

The legalisation of euthanasia and assisted suicide must undoubtedly take into account the specific criteria applied in countries where these activities are legalised.

People who support the legalisation of physician-assisted suicide want those who facilitate voluntary death to be exempt from criminal prosecution for manslaughter or similar crimes. Assisted suicide is legal under certain conditions in some countries, e.g. Austria, Belgium, Canada, Germany, Luxembourg, the Netherlands, New Zealand, Portugal, Spain, Switzerland, some states in the United States and all six states in Australia. In most of the states or countries listed above, a person seeking assisted suicide must meet certain criteria in order to qualify for the necessary legal assistance. Assisted suicidal people must be able to prove that they have a terminal illness, are of sound mind, wish to die of their own free will and are prepared to self-administer a lethal dose of medication. The constitutional courts of Colombia, Germany and Italy legalised assisted suicide, but the practice has not yet been legalised or regulated by their governments (Spain Passes Law¼, 2021).

In the United States, assisted suicide is legal in California, Colorado, Oregon, Vermont, Washington, Hawaii, Montana and Columbia. The law also requires a psychiatrist or psychologist to assess whether the patient's mental state allows the decision to be made. If the request is approved, the patient will receive a prescription for the medication, which they can take at home (New Jersey¼, 2019). In 2019, 19 other states in the United States considered adopting a similar law. Austria's Constitutional Court ruled that the state was violating citizens’ fundamental rights by banning assisted suicide and ordered the ban to be lifted in 2021. Court President Christoph Grabenwarter told reporters, ‘The legislator must respect the decision to take one's own life knowingly’, highlighting that such a decision must be taken freely and without any external influence (Austria's Constitutional Court¼, 2020).

From 2022, Austria will have a law allowing assisted suicide in the country. Prior to that, Austria had one of the strictest assisted suicide bans. Among other things, the system prohibited its own citizens from assisting other citizens to commit assisted suicide abroad.

In the Netherlands and in Luxembourg, assisted suicide is regulated in a similar way to euthanasia.

In Switzerland, euthanasia is a criminal offence. However, assisted suicide is not a criminal offence if there is no selfish motive. Assisted suicide is not regulated by law in Switzerland. The relevant legal practice is based on the absence of a criminal penalty, the interpretation of medical and pharmaceutical legislation, the guidelines of the relevant organisations and case law. In Switzerland, assisted suicide does not need to be assisted by a medical professional, but only a doctor can check the state of mind of the person required to commit assisted suicide and prescribe a lethal substance. Most assisted suicides are carried out with the help of two non-profit associations, one of which provides assisted suicide for foreigners, which has led to suicide tourism in Switzerland (Grosse and Grosse, 2015, 250–252). In Germany, as in Switzerland, there is no law legalising euthanasia. However, an assisted suicide law was passed in Germany in 2018 under the conditions that assisted suicide is only allowed for altruistic and non-commercial reasons. If there is a commercial motive, the assisted person faces up to 3 years in prison (Assisted Suicide Law¼, 2015). In 2020, the German Constitutional Court declared euthanasia unconstitutional and introduced an ambiguous criminal provision that provided for criminal liability for the involvement in suicide for commercial purposes. At the same time, the Constitutional Court did not rule out the possibility of legalising assisted suicide, highlighting that no one can be obliged to assist a suicide (BVerfG.2 BvR2347/15, 2BvR2527/16, 2BvR2354/16, 2BvR1593/16, 2BvR1261/16, 2BvR/16).

But professional organisations deplore doctors assisting patients to commit suicide, and doubts have been raised as to whether the Constitutional Court's ruling will make any real difference in Germany (Linder, 2020, 66).

The European Court of Human Rights (ECHR) has in its jurisprudence on several occasions dealt with cases of assisted suicide and termination of life-sustaining treatment, but there are still no judgements on euthanasia in its strict sense. The ECHR has held that under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (European Convention for the¼, 1950), which deals with the protection of private life, a person has the right to decide when and how to end their life. This is on condition that the person can decide of their free will. In the present case, the dispute concerned the question whether the State had a ‘positive obligation’ under Article 8 to ensure that the plaintiff could obtain, without a prescription, a medicine that would enable them to die without pain and without risk of failure. In this context, the Court of Justice noted that the Member States of the Council of Europe are far from unanimous on the right of individuals to choose how and when they end their lives. Although assisted suicide had been (at least partially) decriminalised in certain Member States, the vast majority seemed to give more weight to the protection of the individual's life than to their right to end it. The Court concluded that states have a wide margin of appreciation in such matters. In the present case, the European Court of Justice found that, even assuming that States have a positive obligation to take measures to facilitate dignified suicide, the Swiss authorities had not breached that obligation in the case of the applicant (Haas v Šveits, 2011).

In Koch v Germany, the ECHR also reviews its substantive jurisprudence on euthanasia. The ECHR has previously held that it is ‘not prepared to rule out’ that a statutory restriction to avoid an unworthy and degrading end of life is a violation of Article 8. Similarly, the ECHR has previously held that Article 8 protects a person's right to decide when and how to end their life, provided that the person is free to make such a decision. The question of whether a Contracting State has an obligation to ensure the enforcement of such a decision has not yet been clearly decided by the ECtHR. On the basis of the foregoing, the ECHR held that the refusal to discuss the merits of the petitioner's and his wife's application constituted a violation of Article 8. On the basis of the principle of subsidiarity and the lack of consensus in the laws of the Contracting States, the ECHR decided to limit itself to the procedural aspect of the infringement of Article 8. On the basis of the ratione personae principle, the ECHR ruled inadmissible the petitioner's complaint against his ex-wife, namely, for infringement of Article 8. With reference to previous case law, the ECHR makes clear that the right to euthanasia, assuming the existence of such a right, is deeply personal in nature and belongs to the category of non-transferable rights. Although the ECHR is not formally bound by its previous rulings, it follows from the principles of legal certainty and precedence that the ECHR should not abandon its previous jurisprudence without a good reason (Koch v Saksamaa, 2012).

As countries continue to debate the legal, ethical and health issues surrounding medically assisted death, the issue of assisted dying is changing around the world. If the current trend of expanding access continues, this service will become available to more and more people around the world. A comparison of international jurisdictions allowing medically assisted dying as of July 2022 is shown in Table 1 (Doelle, 2022).

Table 2 shows the criteria for requesting assisted suicide services in the Netherlands (Stainton, 2023) and Switzerland (SWI, 2022).

The submission shows that, in principle, the criteria for requesting assisted suicide are similar in the Netherlands and Switzerland, with the main emphasis on the person's incurable and seriously debilitating illness and the patient's strictly voluntary decision to request assisted suicide. The person who chooses this path must be prepared for this death march, but so must society. At the level of society, questions may arise as to whether this service would not be implemented by medical professionals with the help of patient influence or by exploiting the helplessness of the patient. Discussions in Estonia on the legalisation of euthanasia and assisted suicide have degenerated into the recognition that Estonian society is not yet ready for this step.

When in Estonia in 2017, at the request of the Chancellor of Justice, a panel discussion was organised for the University of Tartu's law journal Juridica, with the participation of experts from various disciplines, the view was expressed that Estonian society is not yet ready to legalise active euthanasia (Vestlusring¼, 2017, 350–357). Today, almost 10 years later, the same view is held.

A psychiatrist Andres Lehtmets, who took part in the discussion, argued that legislation should be held back because society should first discuss the ethical issues of euthanasia to ensure that everyone understands it in the same way. He agreed with the statement of Indrek-Ivar Määrits, Head of the Inspections, Department of the Chancellor of Justice's Chancellery: ‘once a social agreement has been reached, the lawyers will put it in writing’. The bioethics lecturer, Kadri Simm, and the medical scientist, Andres Soosaar, at the University of Tartu were of the opinion that euthanasia should not be legalised in Estonia at the moment. According to A. Soosaar, the right to self-determination is more or less present in Estonia. Simm pointed out that a person's right to autonomy can sometimes be detrimental to them, and that it is necessary to look on a case-by-case basis to see whether some other bioethical principle does not outweigh the right to self-determination.

Emphasising the ethical side of euthanasia, Meego Remmel, Vice President of the Estonian Council of Churches, said that people who know nothing about euthanasia very easily think that ‘let's do it, let them die’. People who know a bit say ‘it's not so easy’. He cited the example of a Dutch euthaniser who had euthanised dozens of people and who, when he himself was ill, came to the conclusion that he did not really want to be euthanised. Katrin Elmet, an anaesthesiologist and practicing intensive care physician, pointed out that the social debate should start with a discussion on ‘pointless treatment’. The question should be how long should we continue to treat a person with an incurable serious illness, because keeping a person alive by all means without any prospect of recovery is not ethical. Dr Elmet explained that although it is allowed to stop treatment in medically justified cases, it is currently with a heavy heart that doctors make this decision. Margit Sutrop, Professor of Practical Philosophy at the University of Tartu, Head of the Centre for Ethics, who chaired the discussion, noted that the principles of medical ethics, i.e. beneficence, non-harming, helping and autonomy, do not always go well together. The clashes between these principles give rise to conflicts, but people need to be made more aware of these conflicts. Doctors, lawmakers and also people in the family and at home really need to be able to spot these points of conflict and understand how to resolve them anyway. The question is in whose interest or from whose point of view to solve it—whether the focus is on the sick person, the person who is dying or how much we let society or the community in to solve the problem.

In Estonia, doctors and patients alike take the all-powerful view of medicine, and it is as if the doctors have to prove that everything was done that could be done and that what happened was inevitable. This means that nobody wants to take the decision to stop someone's treatment. It would be a great help to have a written life testament and a set of guidelines for the future, which are very common in Western European countries but are still taking root in Estonia. Nor is it unimportant that loved ones are aware of the patient's wishes. However, discussing death is not a common practice in Estonian families today. This makes life difficult for doctors and can lead to conflicts when, at a critical moment, relatives have to give their consent to end treatment or organ donation. According to doctors, it is also sometimes difficult for relatives to accept the patient's previously written wishes.