Update The Legalization of Euthanasia in The Nethe

THE LEGALIZATION OF EUTHANASIA IN THE NETHERLANDS
Jonathan T. Smies∗
Introduction
On April 1, 2002, legislation regarding the practice of euthanasia and assisted
suicide became effective in the Netherlands.1 With this new law the Netherlands earned
the distinction of becoming the first nation in the world to legalize euthanasia.2 Although
this event made many headlines, the practice of euthanasia in the Netherlands had already
achieved a status of de facto legality through Dutch jurisprudence and prosecutorial
policy. Even though it is in many respects simply a codification of past jurisprudential
development, the law is significant inasmuch as it is a creature of politics. Additionally,
the Dutch act is likely to exercise considerable influence internationally as other
jurisdictions are likely to use it as a guide.3
∗
Jonathan T. Smies received his J.D. from the University of Michigan Law School and his B.A. from
Wheaton College. He is a member of the State Bar of Wisconsin and an Austin Fellow. The Austin
Fellowship is an intellectual community of lawyers and law students dedicated to the principled renewal of
the Western legal tradition.
1
Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding [Termination of Life on Request and
Assisted Suicide (Review Procedures) Act], Wet van 1 April 2001, Staatsblad 2001, 194.
2
The legislature of the Northern Territory of Australia passed an act on May 25, 1995 authorizing
euthanasia, which became effective on July 1, 1996. The act was in force for less than a year, as on March
25, 1997 the Australian National Assembly invalidated it. See Andrew L. Plattner, Note, Australia’s
Northern Territory: The First Jurisdiction to Legislate Voluntary Euthanasia, and the First to Repeal it, 1
DEPAUL J. HEALTH CARE L. 645 (Spring 1997); See also Lara L. Manzione, Is there a Right to Die?: A
Comparative Study of Three Societies (Australia, Netherlands, United States), 30 GA. J. INT’L. & COMP. L.
443, 444 (Spring 2002).
3
Belgium has already adopted an act that became effective on September 23, 2002. Paul Meller,
Euthanasia Ban Ends, N.Y. TIMES, September 24, 2002, at A13. Although similar, the legislation has been
called “the most liberal euthanasia bill in the world.” Allerlaaste Groen Licht Voor Euthanasie [Very Latest
Green Light for Euthanasia], HET VOLK (Belgium), May 16, 2002, at 4. This bill passed the Belgian
Parliament on May 16, 2002, by a margin of 86 to 51, with 10 abstentions; those opposed indicated that
some effort may be made to have the law tested by the European Court of Human Rights. Antoon Wouters,
CD&V trekt met euthanasiewet naar Straatsburg [Christian Democrat and Flemish Party are Going to
Strausburg with Euthanasia Bill], DE STANDAARD (Belgium), May 17, 2002, at 4. Professor Hugo Van den
Enden of the University of Gent estimates that between 3,000 to 5,000 Belgians will take advantage of the
new law annually. Enorme Vraag Naar Euthanasie [A Tremendous Demand for Euthanasia], HET VOLK
.
Part one of this paper offers a history of the development of Dutch euthanasia law
and practice leading up to the passage of the law. The second section addresses the
substance of the legislation itself. The third and final section considers the Dutch law in
light of the European Convention on Human Rights. Before the historical development is
addressed, some discussion of the terminology involved is necessary.
Some Definitions
“Euthanasia” [euthanasie], in its strictest sense, is the intentional killing by a
physician of a patient requesting death.4 According to prevailing opinion in the
Netherlands, the term cannot include situations in which the patient has not requested to
be killed. In this sense most observers claim that euthanasia is always voluntary.5 Actual
practice belies this claim, as every year Dutch physicians intentionally kill hundreds of
individuals incapable of manifesting a request.6 These deaths, lacking the
voluntariness/request component, are classified in the literature as “termination of life
without an explicit request,” and shall be considered below.
(Belgium), September 24, 2002, at 1. See also Ezekiel Emanuel, Euthanasia: Where the Netherlands Leads
Will the World Follow? 322 BRIT. MED. J. 1376 (June 9, 2001)(espousing the view that the Dutch
legislation is likely to have little overall effect internationally).
4
Ministerie van Justitie [The Ministry of Justice] offers the following definition in answer to the question
of “Wat is euthanasie?” [“What is euthanasia?”]. [“In the Netherlands, ‘euthanasia’ is understood to mean
the termination of life by a physician upon the request of a patient. Pain, humiliation and the desire for
dignity in dying are the most important motives of patients that request euthanasia.”] “In Nederland wordt
onder euthanasie verstaan: levensbeëindiging door een arts op verzoek vaan een patient. Pijn,
ontluistering en het verlangen waardig te sterven zijn de voornaamste motieven van patiënten voor het
vragen om euthanasie.” Available at
http://www.justitie.nl/publiek/familie_en_gezin/euthanasie/watiseuthanasie.asp (last visited July 13,
2002)(trans. mine). Several activities which are not euthanasia: “refusal of medical treatment by a patient
who, as a result of this refusal, dies;” “not initiating or terminating medical treatment when this treatment is
medically useless and futile, with the acceptance that the patient will die;” and “symptomatic treatment, for
instance, pain treatment with the unintended side effect of shortening the patient’s life.” Pieter V. Admiraal,
A Physician’s Responsibility to Help a Patient Die, in EUTHANASIA: THE GOOD OF THE PATIENT, THE
GOOD OF SOCIETY 86 (Robert I. Misbin ed., 1992).
5
See, e.g., JOHN GRIFFITHS, ALEX BOOD, & HELEEN WEYERS, EUTHANASIA AND LAW IN THE
NETHERLANDS 4 (Amsterdam University Press 1998)(defining euthanasia as “killing another person at his
request”).
6
See infra at 32.
1
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Another category of activity leading to death recognized in Dutch law is
“assistance with suicide” [hulp bij zelfdoding]. The role of the physician in assisted
suicide is to create a situation in which the patient may, by some act of his own, end his
life. Although it formally occupies a separate position, assisted suicide is often treated
along with euthanasia.7 Unless there is a relevant distinction to be made, this paper shall
follow this convention and treat both under the loose heading of “euthanasia.”
Some deaths administered by physicians in the Netherlands are made without a
patient’s explicit request. This is referred to as the “termination of life without an explicit
request” [levensbeëindiging zonder uitdrukkelijk verzoek]. This most controversial form
of life termination often involves the death of coma patients and newborn babies. The
unease with which this type of behavior is received is chiefly attributable to the fact that
an actual manifestation of patient volition in favor of death is neither possible nor sought.
This category is further divisible into what we shall call “involuntary” and “non-
voluntary” euthanasia. The former refers to cases where an individual is euthanized even
though an express will to the contrary is known. “Non-voluntary euthanasia” is a
situation in which the will of the individual is not ascertainable. This subdivision of the
category of “termination of life without an explicit request” into two forms of
“euthanasia” is necessary, even though the Dutch definition of “euthanasia” precludes
such scenarios. The voluntary request of the patient, as noted above, is a, if not the, key
7
See Griffiths, et al., supra note 5, at 16. Since 1984 the Royal Dutch Medical Association [Koninklijke
Nederlandse Maatschappij Ter Bevordering Der Geneeskunst (KNMG)] has taken the position that there is
no distinction between euthanasia and assisted suicide. In the document “Statement on Euthanasia”
[“Standpunt inzake euthanasia”] the executive committee of the KNMG abolished such distinction, as it
“felt that from a moral point of view it makes no difference whether the lethal medicine is administered
directly by the doctor or is handed by the doctor to the patient (in the case of a drug taken orally).” Else
Borst-Eilers, Euthanasia in the Netherlands: Brief Historical Review and Present Situation, in
EUTHANASIA: THE GOOD OF THE PATIENT, THE GOOD OF SOCIETY 58 (Robert I. Misbin ed., 1992). The
statement of the KNMG is published in 39 Medisch Contact 990-998 (1984).
2
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constitutive element of what is called “euthanasia” in the Netherlands. Although
proponents of euthanasia prize voluntariness, the existence of this category of life
termination (which is readily conceded by proponents of euthanasia), demonstrates that it
is not supreme.8
Finally, all three of these behaviors can be subsumed into the larger category of
“medical decisions concerning the end of life” [medische beslissingen rond het
8
Through a philosophic analysis of the nature of autonomy, David S. Oderberg questions whether the
voluntariness requirement is of any relevance to the euthanasia debate. Although the fashionable respect
for autonomy of today is derived from the thought of Kant, it has taken a form that he himself may not have
recognized. Kant held that the autonomy of rational beings was still circumscribed by the precepts of
morality; hence, he argued that suicide is immoral—it was incoherent to think that a rational being would
be capable of willing his own non-existence.
the conception of autonomy which Kant understood, and which itself is

embedded in traditional morality, has mutated…into what might be
called a doctrine of the paramountcy of the will—the idea that the will
must be allowed to range freely over whatever ends a person
deliberately chooses as integral to his “personal fulfilment,” perhaps in
one of the variety of utility-maximizing ways proposed by
consequentialists, the utility being, however, solely personal.
***
the moral importance of autonomy is not equivalent to the paramountcy
of the will, though this is how it is currently understood. A proper
understanding, however, sees autonomy as always and everywhere
subject to human good. Autonomy is not merely the moral capacity to
do whatever you like (even if what you seek to do is primarily “self-
regarding,” in John Stuart Mill’s terminology); this is accepted on all
sides of the euthanasia debate, except by the most extreme libertarians
or relativists with flawed moral theories of their own.
***
In light of these considerations, we can see that there is no right to

voluntary euthanasia qua voluntary. I also suggested, however, that the
voluntariness requirement, given so much support by those who
ultimately wish to see the legalisation of euthanasia in all its forms, is
quite simply an ethical “red herring.” Just as you would, it is hoped,
baulk at injecting someone with heroin on request, so you would, it is
hoped, baulk at any old request to be killed. . . . The real disagreement .
. . is over whether there can be good reasons to act on a request to
infringe someone’s right to life other than the mere fact of the request
itself. It is here that so-called “quality of life” judgments enter
powerfully into the debate . . .
DAVID S. ODERBERG, APPLIED ETHICS: A NON-CONSEQUENTIALIST APPROACH 55, 57-58, 60 (2000).
3
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levenseinde] (MDEL). Besides including euthanasia, assisted suicide, termination of life
without an explicit request, it also embraces “normal medical practice” [normaal medisch
handelen], and refusal of medical treatment that results in death. “Normal medical
practice” encompasses two types of behavior: administering pain relief even though the
dosage used is likely to hasten death and not initiating (or terminating) life-prolonging
treatment in instances when it is “medically futile” [medisch zinloos]. The former is
sometime mentioned in the literature as “passive euthanasia,” and is not the focus of this
paper. With some conception of the terminology, we now turn to the history of the law
and practice of euthanasia in the Netherlands.
I. A HISTORY OF DUTCH EUTHANASIA LAW AND PRACTICE
The topic of euthanasia is not new to Dutch law and society. For well over one
hundred years the Netherlands has had legislation outlawing the practice. However, the
post-war experience has been one in which euthanasia and assisted suicide came to be re-
examined in the courts of law and public opinion. The new law enacted by Parliament is
a direct descendant of prior jurisprudence. It may even be said that the recent legislative
action is really nothing more than an adoption of the standards previously developed in
the case law. What follows is a history of the way in which this development in the law
and society has run, beginning with past legislation on the subject.
A. The Criminal Code of 1886
The Criminal Code [Wetboek van Strafrecht] of 1886 replaced an older
Napoleonic code.9 The Code provided two sections which explicitly made both
euthanasia and assisted suicide criminal acts. Article 293 prohibited euthanasia: “A
9
Wet van 15 september 1886 [law of September 15, 1886]. This act brought into effect the Penal Code of
1881 (Wet van 3 maart 1881).
4
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person who takes the life of another person at that person’s express and earnest request is
liable to a term of imprisonment of not more than twelve years or a fine of the fifth
category.” 10 This article was introduced into the Criminal Code in 1886 to dispel any
doubts as to the legality of killing a person requesting death.11 Although the potential
maximum fine for this offense of “killing upon request” is the same as that for murder,
the maximum prison term is eight years less than the maximum twenty the Code allows
for murder.12
Besides making euthanasia illegal, the 1886 Code also created criminal liability in
cases of assisted suicide. Article 294 provided:
A person who intentionally incites another to commit

suicide, assists in the suicide of another, or procures for that
other person the means to commit suicide, is liable to a
term of imprisonment of not more than three years or a fine
of the fourth category, 13 where a suicide ensues.14
Although understood as a less grievous offense under the Code, assisted suicide was
prohibited along with euthanasia.
10
English translation of Griffiths, et al., supra note 5, at 308. See also, Article 23 of the Criminal Code
which provides that a “fine of the fifth category” is a maximum of f 100,000 (about U.S. $45,000).
11
MARGARET OTLOWSKI, VOLUNTARY EUTHANASIA AND THE COMMON LAW 393 (1997); B. Sluyters,
Euthanasia in the Netherlands, 57 MEDICO-LEGAL J. 34, 35 (1988).
12
Article 289; See also supra note 5 at 308.
13
Article 23 of the Criminal Code provides that a “fine of the fifth category” is a maximum of f 25,000
(about U.S. $11,000).
14
Article 294; See English translation supra note 5, at 308. The explanatory statement that accompanied
the first draft of this article in 1879 was as follows:
He who complies with another person’s explicit and serious wish to

take his life is to be subjected to a punishment considerably lighter than
he who has been found guilty of plain murder. The consent cannot
remove the punishability of taking another person’s life, but it does
completely alter the character of the act—the law, so to speak, no
longer punishes the assault against a certain person’s life, but the
violation of the respect due human life in general—no matter what the
motive for the act may be. Crime against human life remains, crime
against the person is absent.
Supra note 5, at 325.
5
.
Finally, although not explicitly concerned with the subject, Article 40 has proven
to be crucial to the development of the law in this area. It provides that: “a person who
commits an offense as a result of a force he could not be expected to resist is not
criminally liable.”15 This superior force [overmacht] is a defense of necessity. It was this
defense of necessity found in Article 40 that courts would use to relieve physicians in
violation of Articles 293 and 294 from criminal liability.
B. The Pre-War Period
The sections of the 1886 Criminal Code relating to euthanasia and assisted suicide
were little applied in the pre-war period. There are only three cases before 1945 in which
Article 293’s prohibition of killing on request was relevant.16 In this same period there
are no known cases involving assisted suicide under Article 294. The newly adopted
Criminal Code’s prohibitions of euthanasia and assisted suicide were seldom put to use
prior to the end of the Second World War.
The dearth of prosecution for euthanasia and assisted suicide in these early years
could be attributable to either a nascent prosecutorial policy against pursuing such
convictions, or simply a relative lack of these life-terminating activities actually
occurring in the Netherlands. The best explanation is probably the latter of the two, as
there was very little interest in euthanasia and assisted suicide in the pre-war period. It
has been noted that early interest in these practices was greatest in England and the
15
Griffiths, et al., supra note 5, at 307.
16
Id. at 44 n.3. A 1908 case where a man was convicted for attempted murder was occasion for the
defendant claiming that his victim had requested him to do so. A similar defense of victim request was also
raised in 1910, where a man shot his girlfriend, but he was convicted of murder. In 1944 the Supreme
Court nullified a ruling of the Amsterdam Court of Appeals, noting that insufficient attention had been paid
to the explicit request of the victim, a women strangled by her boyfriend.
6
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United States, where voluntary euthanasia societies were formed in the 1930s.17
Additionally, the United States was home to early legislative efforts to legalize
euthanasia, along with a significant public opinion in favor of the practice.18 The
Netherlands did not see the founding of a pro-euthanasia society until 1973, and there
were no early efforts to adopt legislation legalizing the practice.19 The rise of the Nazi
Party in Germany and the eventual brutal occupation of the Netherlands from 1940 to
1945 might explain some reluctance amongst the Dutch in this period to show any
interest in euthanasia. Even before the ascendancy of National Socialism—from the
1920s onwards—the medical community of her German neighbor had been
contemplating and engaging in euthanizing “life unworthy of life” [Lebensunwerten
Lebens].20 Whatever the reason, there was relatively little concern in the Netherlands on
the issue of euthanasia and assisted suicide until the close of the Second World War.
C. The Case Law
1. Early Cases
In 1952 a doctor from Eindhoven was tried for killing on request.21 The doctor
had acceded to the request of his brother, who was suffering from advanced tuberculosis.
17
Herbert Hendin, The Dutch Experience, 17 ISSUES L. & MED. 223, 225 (2002). The Voluntary
Euthanasia Legalisation Society was founded in Britain in 1935.
18
In 1906 the Ohio Legislature rejected a bill to legalize voluntary euthanasia. The climate in America on
the topic of euthanasia (even non-voluntary in nature) at the time is also evident in a 1937 Gallup Poll,
which found that 46% of those interviewed favored “mercy deaths under government supervision for
hopeless individuals.” Richard L. Worsnop, Caring for the Dying, 7 CONG. Q. RESEARCHER 769, 779
(September 1997)
19
Supra note 5 at 53. The Dutch Association for Voluntary Euthanasia (Nederlandse Vereniging voor
Vrijwillige Euthanasie) was founded in 1973.
20
The 1920 publication of Alfred Binding and Karl Hoche, The Permission to Destroy Life Unworthy of
Life [Die Friegabe der Vernichtung Lebensunwerten Lebens], in its promotion of euthanasia or ‘dying help’
[sterbehilfe], exercised great influence over the German medical community. In 1933 the German Ministry
of Justice issued a memorandum detailing how physicians might be authorized to end the suffering of
incurable patients “in the interest of true humanity.” Nazis Plan to Kill Incurables to End Pain; German
Religious Groups Oppose Move, N.Y. TIMES, October 8, 1933, at 1.
21
Nederlandse Jurisprudentie 1952, no. 275; see supra note 5, at 44.
7
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In his defense the doctor told the district court [arrondissementsrechtbank] that his
conscience had compelled him to act in accordance with his brother’s wish to die.22
Although he was found guilty of killing on request under Article 293, the court’s
sentencing was drastically more lenient than the maximum of twelve years imprisonment
contemplated by the Code.23 The doctor was only given one year of probation.24 The
court imposed the sentence it did “because, as far as the Court is aware, this is the first
time that a case of euthanasia has been subject to the ruling of a Dutch judge.”25 This
sentencing generated very little commentary or controversy.26
There was a much more pronounced reaction to a 1969 decision of the Court of
Appeals, Amsterdam, which held that before terminating life-support the physician must
consult with other colleagues and discuss the situation with the family of the patient.27
The case involved Mia Versluis, a twenty-one year old woman, who was comatose and
kept alive by artificial respiration. The anesthesiologist responsible for the initial
operation, a foot operation from which the patient never regained consciousness,
recommended cessation of treatment, and the father of the patient objected and sought to
prevent his daughter from being removed from treatment.28 Although the doctor never
removed the breathing-tube, the Court of Appeal found the doctor guilty of behavior that
undermines confidence in the medical profession, and fined him f 1,000.29 The ruling in
22
The Netherlands is divided into nineteen judicial districts, each containing a court of first instance. Cases
from the district courts can be appealed to one of the five courts of appeal [Gerechtshof]. The court of last
resort is the Supreme Court [Hoge Raad].
23
Nederlandse Jurisprudentie 1952, no. 275.
24
Id.
25
26
Id.
27
Id. at 47, 48.
28
Id.
29
Id. at 48. 1,000 Netherlands Guilders is worth about U.S. $450.
8
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the case of Versluis ordered the decision to be published in the Official Gazette,
indicating the intention to further public debate on the issue.30
2. Postma: Adoption of Conditions of Average Medical Practice
The next significant case to appear on the jurisprudential landscape was the 1973
decision in Postma.31 Ms. Postma was a doctor who terminated the life of her 78 year-
old mother, who had been living in a nursing home and recovering from a cerebral
hemorrhage. The deceased had made her desire to die known to both her daughter and
the nursing facility staff. At the trial in Leewarden’s District Court, the Medical
Inspector gave testimony indicating that average medical practice in the Netherlands did
not support the notion that a patient’s life must be prolonged in every possible way. The
inspector claimed that it was widely accepted practice to administer pain relief which ran
the risk of causing the patient to die sooner, so long as certain conditions were met: the
patient must be incurably ill; the suffering must be mentally or physically unbearable;
there is an expressed wish to die; the patient is in the terminal phase of illness; and the
person who accedes to the request is a doctor (preferably the doctor responsible for
treatment). The Court adopted all but one of the inspector’s conditions: it did not accept
the proposition that the patient must be in the terminal phase of illness.32 Although she
met all of the other conditions, the Court held that Postma’s choice of an injection that
was immediately lethal was not a reasonable means of ending the patient’s suffering. She
30
Nederlandse Staatscourant 1969 no. 55:7.
31
Nederlandse Jurisprudentie 1973, no. 183; translated in Griffiths et al., supra note 5, at 52; Although
the normal citation convention in Dutch law is to reference the court and not the party, hereafter I have
followed the Anglo-American practice of referencing cases by party name.
32
Supra note 5 at 52, n.28, citing Nederlandse Jurisprudentie 1973, no 183:560. The Court’s reasoning for
rejecting the terminal phase requirement, as the Court knew “of many cases of incurable illness or accident-
caused disability, combined with serious physical and/or mental suffering, where the patient is otherwise
healthy and can continue living in this state for years. It is not the court’s view that such suffering should be
denied the relief described by the expert witness.”
9
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was given a conditional jail sentence of one week along with a year’s probation. Postma
triggered significant attention to the issue of euthanasia by the Royal Dutch Medical
Association [Koninklijke Nederlandse Maatschappij Ter Bevordering Der Geneeskunst
(KNMG)], as its journal Medisch Contact covered the decision and printed a general
discussion about euthanasia.33 Public debate also increased on the issue, as the word
previously rarely utilized, “euthanasia,” was increasingly used in public discourse.
Postma’s significance lies in the fact that it was the first decision that, although not
speaking directly to euthanasia per se, hinted that doctors who administer pain relievers
in quantities likely to lead to death might escape criminal liability if they adhere to
certain conditions.
3. Wertheim: Conditions to Avoid Criminal Liability and Prosecutorial Policy
In 1981 charges were brought against Ms. Wertheim, a euthanasia activist
accused of assisting in the death of a 67 year-old woman suffering from various
maladies.34 In its opinion, the Rotterdam District Court noted that suicide is sometimes
acceptable, and the assistance of others is occasionally for some to end their own lives.
The Court dispatched with the fact that such behavior is explicitly criminalized in Article
294 of the Criminal Code by creating a set of requirements, which if followed, might
justify assisted suicide.35 These requirements are divisible into conditions on the patient
and those assisting him. The Wertheim Court required the following relating to the
33
Id. at 53. The KNMG came to support of euthanasia. This support was evidenced at the time of the trial,
as eighteen doctors signed an open letter to the Minister of Justice admitting to have committed the same
act of the accused Postema at least once. Else Borst-Eilers, Euthanasia in the Netherlands: Brief Historical
Review and Present Situation, in EUTHANASIA: THE GOOD OF THE PATIENT, THE GOOD OF SOCIETY 57
(Robert I. Misbin ed., 1992). The KNMG’s support for euthanasia was opposed by a minority of the
medical profession. In 1972 the Netherlands Physician’s League [Nederlands Artsen Verbond (NAV)] was
founded as an organization of physicians who strictly adhere to the Hippocratic Oath.
34
Nederlandse Jurisprudentie 1982, no. 63:223, discussed in Griffiths et al, supra note 5, at 59.
35
Id.
10
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patient: the presence of unbearable physical or mental suffering; that this suffering and
the desire to die were enduring; that the decision to die was made voluntarily; that the
patient was well informed of his situation and alternatives, was capable of and actually
did weigh the various considerations; that there were no alternative means to improve the
situation; and that the person’s death did not inflict any unnecessary suffering on any
third party.36 The requirements as to the assistance itself were as follows: the decision to
assist must not be made by one person alone; a doctor must be involved; and both the
decision and the assistance itself must be in accordance with utmost care.37 Applying
these newly adopted requirements to the actions of Wertheim, the Court ruled that the
defendant failed to conform to them, and found her guilty of assisted suicide under
Article 294.38 The penalty imposed was a conditional sentence of six months subject to
one year of probation, along with two weeks of house arrest.39 The Court’s decision not
to impose a jail sentence was owed to the fact that Ms. Wertheim, at age 76, was too frail
to handle the mental and physical burden of prison life.40
The prosecution in Wertheim had been seeking a conviction for murder, and not
being satisfied with the conviction or the sentence imposed, initially filed an appeal. The
appeal was later dropped after consultation with the Procurator-General [Procureur-
Generaal] of The Hague Court of Appeals and the Dutch Minister of Justice. With a
confusion exposed as to how exactly prosecutions in such cases would advance, the
national College of Procurators-General [College van Procureurs-Generaal] decided that
uniformity was in order. The College declared that every case of euthanasia or assisted
36
Id.
37
Nederlandse Jurisprudentie 1982, no. 63:223, translated in Griffiths et al, supra note 5, at 59.
38
Id.
39
Id.
40
Id.
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suicide that a prosecutor became aware of must be referred to the College for a
determination of whether to prosecute. It announced that the guidelines it would apply in
deciding whether to prosecute Article 293 and 294 cases were the conditions articulated
in Postma and Wertheim.41 This intervention of the College of Procurators-General was a
significant move in settling the matter of when an individual otherwise in violation of the
Criminal Code’s prohibitions on euthanasia and assisted suicide might be justified in his
action and not subject to prosecution.
Prosecutorial decision-making is centralized in Dutch criminal law, as the College
sets policy that binds all prosecutors lower in the hierarchy of the Public Prosecution
Service [Openbaar Ministerie]. Some Continental systems, such as Germany, require the
prosecution to prosecute every case presented. Prosecutors in the Netherlands are not so
bound, as the “opportunity principle” [opportuniteitsbeginsel] of prosecution governs.
This allows the prosecutor complete discretion whether to prosecute a given case. In
cases of euthanasia or assisted suicide, the College was free to simply articulate the set of
conditions under which no prosecution would be brought. Thus, although euthanasia and
assisted suicide remained formally illegal under the Criminal Code, after the College of
Procurators-General’s action in the wake of Wertheim, physicians adhering to the
judicially enumerated requirements were given a virtual guarantee of being free from
future prosecutions.42
41
Tweede Kamer (app) (1981-1982) 1757.
42
Non-Prosecution
after judicial Prosecution
Year Non-prosecution Prosecution investigation taken further
______________________________________________________________________________________
1984 16 1 0 0
1985 26 4 1 0
12
.
What has escaped the commentary on this occurrence is the fact that this
development was wholly outside of any appreciable form of democratic control. The
College is the governing body of the Public Prosecution Service, and operates under the
direction of the Minister of Justice, who is appointed by Royal decree and responsible to
both houses of Parliament.43 The Minister of Justice has the power to prosecute even
against the advice of the College, but this is a rare occurrence. The official policy of the
College, and therefore of all prosecutors in the Netherlands, is set by a majority of the
members. Thus, three un-elected Procurators-General have the power to effectively set
national policy on any one of a number of issues relating to the application of the
Criminal Code.44 This is how the “policy of tolerance,” the policy in which behavior that
is formally illegal is tolerated if undertaken in accordance with certain standards,
developed and was incorporated into Dutch Criminal Justice. The standardization of
non-prosecution of euthanasia and assisted suicide cases meeting predetermined
conditions is but one fruit of the tolerance policy. Two other notable areas in which the
College introduced the policy of tolerance include soft drugs and prostitution. The policy
1986 81 0 1 2
1987 122 2 1 1
1988 181 2 1 0
1989 336 1 1 0
1990 454 0 0 0
1991 590 1 0 0
1992 1318 4 1 0
1993 1303 15ª 1 0
1994 1417 7 12 2
ªThe relatively high number of decisions not to prosecute following judicial investigation concerns cases
which were reconsidered taking account of the Chabot decision (see infra at 21).
John Keown, Euthanasia in the Netherlands: Sliding Down the Slippery Slope?, in EUTHANASIA
EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES 296 n.159 (1995)(citing Jaarverslaag
Openbaar Ministerie 1994, Ministerie van Justitie, Den Haag, 1995). A table of Euthanasia case disposals
in the Netherlands from 1984-1994 demonstrates the extremely low rate at which cases were prosecuted.
43
Grondwet Nederlandse (Constitution of the Kingdom of the Netherlands) Art. 43 (Ned.).
44
The College is made up of three to five Procurators-General. When membership of the College is limited
to three, only two votes are needed to set national prosecutorial policy.
13
.
of tolerance was initially conceived as a temporary measure to square cultural changes
with the letter of the Criminal Code. It was assumed that such policies would be
democratically legitimized later by legislative action. However, the policy that was
intended as a stop-gap has been retained on controversial social issues—issues that
Parliament lacks the political will to address.45
The aftermath of the Wertheim decision created a type of informal legalization of
euthanasia and assisted suicide by means of prosecutorial policy. However, this was a
policy without any discernable substantive legal grounding.46 This would change in the
period from 1982 onwards, as a form of legal justification for the practices developed.
4. Schoonheim: The Supreme Court on Euthanasia and Conflicting Duties
The Dutch Supreme Court first ruled on the issue of euthanasia in the
groundbreaking Schoonheim case.47 Schoonheim, a general practitioner, performed
euthanasia on a 95 year-old patient who had requested such treatment.48 At trial in the
Alkmaar District Court, the defendant offered defenses of “absence of substantial
violation of the law” [ontbreken van de materiële wederrechtelijkeheid] and overmacht.49
The trial court accepted the first defense, and the prosecution appealed to the Court of
Appeals, Amsterdam.50 The appellate court rejected all of the defenses, and found
Schoonheim guilty of a violation of Article 293 but did not impose any punishment.51
45
See Press Release, Public Prosecution Service, New Public Prosecution Service Guidelines: Clear
Strategy on Criminal Enforcement of Drugs Policy (Sept. 18, 1996), available at
http://archief.om.nl/english/engl_frm.htm. Obviously, Parliament has now addressed the issue of euthanasia
and assisted suicide and afforded a democratic resolution to the question.
46
47
Nederlandse Jurisprudentie 1985, no. 106, translated in Griffiths et al., supra note 5, at 322-28. This
case is often referred to as the 1984 Alkmaar case.
48
49
Id.
50
51
Supra note 5, at 62; Nederlandse Jurisprudentie 1984, no. 43.
14
.
The Supreme Court affirmed the lower court’s rejection of the defense based on “absence
of substantial violation,” but held that the Article 40 defense of necessity had been
inadequately considered by the lower courts. 52 The verdict was vacated and referred to
the Court of Appeals at The Hague.53
The Supreme Court offered some guidelines for how the justification of necessity
was to be considered. The Court noted, “[o]ne would have expected the Court of
Appeals to have considered … whether, according to responsible medical opinion,
subject to the applicable norms of medical ethics, this was, as claimed by the defendant, a
situation of necessity.”54 The “necessity” referred to by the Court is based on the
defendant’s argument that he was presented with a conflict of duties (one duty to obey
Article 293 and the competing duty to relieve the suffering of his patient).55 Reference
was also made to “unbearable suffering,” “loss of personal dignity,” and the possibility
that the patient might not be able to “die in a dignified manner.”56 The Court set
“responsible medical opinion” tempered by the “norms of medical ethics” as the standard
by which courts should decide whether physician action was justified by necessity. This
deference to the medical community is remarkable, as “the Court appears to abdicate to
medical opinion the power to determine the circumstances in which killing attracts the
52
Article 40 provides for a defense in cases of “irresistible compulsion or necessity [overmacht].” “The
defence takes two forms: first, ‘psychological compulsion’ and secondly ‘emergency’ (noodtoestand) or
choosing to break the law in order to promote a higher good.” John Keown, Some Reflections on
Euthanasia in the Netherlands, in EUTHANASIA, CLINICAL PRACTICE AND THE LAW 195 (Luke Gormally
ed. 1994). The first is akin to the common law’s defense of duress. It was the defense of noodtoestand
upon which the defendant relied; Supra note 5, at 62-63.
53
54
Id., quoting NJ 1985, no. 106.
55
John Keown, Euthanasia in the Netherlands: Sliding Down the Slippery Slope?, EUTHANASIA
EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES 263 (John Keown ed., 1995).
56
Griffiths et al., supra note 5, at 63.
15
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necessity defense.”57 The decision of the Supreme Court is also remarkable inasmuch as
the allowance for the necessity defense was traditionally limited to situations in which the
preservation of life was the goal.58 Finally, the judgment is curious inasmuch as there is
an absence of any discussion of why exactly the duty to relieve suffering trumps one of
the traditional duties of the doctor—the duty not to kill.59
The Hague Court of Appeals, after obtaining more evidence, accepted the defense
of necessity and acquitted Schoonheim.60 Schoonheim represents the first case in which
no criminal liability was ascribed to a physician who had committed euthanasia.
Physicians engaging in euthanasia would now have available the defense of necessity.
57
Keown, supra note 55, at 264.
58
Id., at 263-64 (giving the example of pushing someone out of the path of a moving car as a traditionally-
accepted action justified by necessity that might otherwise be prohibited). The notion that criminal liability
for killing another human being could be avoided through a defense of necessity does not fit comfortably
within common law jurisprudence. The issue is usually conceived of in terms of a ‘choice of evils’—for
some decisions made in the face of such a situation of choice the law will grant the defendant temporary
leave from his normal duties under the law. One condition usually imposed is that the evil avoided by
deviating from the law must exceed the evil of the illegal act itself. The famous case of R v. Dudley &
Stephens, 14 Q.B.D. 273 (1884), represents a landmark in common-law thinking on the issue of whether
the necessity defense will allow for one innocent life to be taken in order to save another (or others). Chief
Justice Lord Coleridge wrote that in the eyes of the law, necessity could never justify the killing of another
innocent human being. The common law’s reluctance to allow for a defense based on necessity for killing
an innocent may be attributable to some of the Christian moral theology which influenced its development.
In the Christian framework, physical death itself is not the ultimate evil, as the greater concern is sin and
the health of that which never dies (i.e., the soul). Thus, the extension of one’s life at the expense
committing the mortal sin of murder with its attendant ill effects on the soul was not something the
common law countenanced. This concern for the life of the soul is illustrated in the old rule which
prohibited the accused from testifying on his own behalf: the common law made the assumption that it was
better to loose one’s life (even if unjustly) at the hand of the criminal law than to perjury oneself to avoid it,
thereby damning the soul. Although there has traditionally been no room in common-law jurisprudence for
a justification of necessity for the killing of an innocent individual, one observer notes that the English
courts have reversed themselves. See Charles I. Lugosi, Playing God: Mary Must Die So Jodie May Live
Longer, 17 ISSUES L. & MED. 123 (Fall 2001)(discussing Re A (Children) (Conjoined Twins: Surgical
Separation), [2000] 4 All E.R. 961 (C.A. Civ.) (U.K.), a case in which it was held that necessity allowed for
the separation of two conjoined twins, even though the death of one was a certain result).
59
Keown, supra note 55, at 264.
60
16
.
5. Pols: The Supreme Court Elaborates
The second occasion on which the Supreme Court addressed euthanasia was the
Pols case. The defendant Pols was a psychiatrist who in 1982 killed her 73 year-old
friend who had been suffering from multiple sclerosis and expressed a wish to die.61 Pols
offered two defenses: “absence of substantial violation of the law” and overmacht.62 The
Groningen District Court rejected both, and in so doing interpreted the former as an
invocation of “medical exception,” which although theoretically available, was
inapplicable in the current case, as Pols did not consult with another doctor.63 The
district court found the defendant guilty, but gave no punishment.64 The Court of
Appeals at Leeuwarden rejected all defenses, and increased the sentence to two months of
jail and two years of probation.65 This decision was appealed to the Supreme Court,
which held that there was no “medical exception” defense available in euthanasia
prosecutions.66 The high court also noted that there was no social consensus that
euthanasia is a form of “normal medical practice” capable of being understood within the
“medical exception.”67
In the first two cases in which euthanasia was considered by the Dutch Supreme
Court, the grounds of defense available to a charge of committing euthanasia under
Article 293 became clear. Schoonheim held that physicians could avail themselves of the
defense of overmacht as justification of necessity based on a conflict of the duties of a
61
62
Id. at 64.
63
Id.
64
Id; Nederlandse Jurisprudentie 1984, no. 450.
65
66
Griffiths et al., supra note 5, at 64.; Nederlandse Jurisprudentie 1987, no. 607.
67
17
.
physician.68 However, the defense of “absence of substantial violation of the law” was
precluded. Pols made clear that physicians could not successfully offer a defense of
“medical exception.”69 By 1987 the contours of what defense might be available to
physicians who failed to comply with the requirements adopted by the College of
Procurators-General were clear.
6. Admiraal: Acceptance of the ‘Requirements of Careful Practice’
In 1984 the Executive Board of the Royal Dutch Medical Society [Koninlijke
Nederlandse Maatschappij Ter Bevordering Der Pharmacie] issued a report in which the
permissibility of euthanasia itself was not addressed, but rather under what conditions it
would be acceptable.70 The report claimed that euthanasia performed by a physician
should demonstrate care to satisfy the five “requirements of careful practice:”
1. the request for euthanasia must be voluntary;

2. the request must be well-considered;
3. the patient’s desire to die must be a lasting one;
4. the patient must experience his suffering as
unacceptable for him;
5. the doctor concerned must consult a colleague.71
The law would prove to show great deference to these requirements.
A year after these requirements were promulgated, the case of Admiraal was
occasion for judicial adoption of the “requirements of careful practice.”72 The District
Court for The Hague acquitted Admiraal, an anesthesiologist who had put to death a
patient with multiple sclerosis. The case set the precedent that doctors in compliance
with the “requirements of careful practice” will not be convicted for performing
68
Nederlandse Jurisprudentie 1985, no. 106, translated in Griffiths et al., supra note 5, at 322-28.
69
70
“Standpunt inzake euthanasia [Position on Euthanasia],” Medisch Contact 31: 990-998 (1984).
71
These requirements are listed in Griffiths et al., supra note 5, at 66. In 1992 the additional requirement
of keeping a fully-documented written record was added. Griffiths et al., supra note 5, at 66 n.76.
72
18
.
euthanasia. Reacting to the decision, the Minister of Justice made it clear that no
prosecution would be sought for doctors in compliance with the requirements.73 In
addition, subsequent case law answered the question of whether all five of the
requirements always had to be fulfilled in order to prevent prosecution. In 1988 the
Supreme Court upheld a decision of the Arnhem Court of Appeals that held that failure to
consult another doctor alone is insufficient grounds for prosecution.74
7. Chabot: Patients with Non-Somatic Suffering Qualify
One of the requirements of careful practice, under which physicians performing
euthanasia and assisting with suicide were assured freedom from prosecution, required
that the patient be suffering. Doctors with patients who were suffering physically were
not subject to prosecution, but it was not yet clear whether they would be treated the
same in cases involving patients with non-somatic suffering. The psychiatrist and
general practitioner of a woman suffering from depression decided to assist the woman
with suicide. Although they were acquitted, the Rotterdam District Court noted that in
cases of non-somatic suffering the consultation of another independent physician is
preferable.75 In another case, the Almelo District Court held that although the suffering
of a 25 year-old anorexia nervosa patient was not primarily physical, it was unbearable
and therefore sufficient to dismiss the indictment against the pediatrician who had
assisted in the patient’s suicide.76
73
74
75
Nederlandse Jurisprudentie 1992, no. 664; on appeal the Hague Court of Appeals also acquitted the
doctors. Tijdschrift voor Gesondheidsrecht 1993, no. 52. For a discussion of the case see Griffiths et al.,
supra note 5, at 80 n.123.
76
Tijdschrift voor Gezondheidsrecht 1992, no. 19; For a discussion of the case see Griffiths et al., supra
note 5, at 80 n.123.
19
.
The Supreme Court addressed the issue of non-somatic suffering in the landmark
1994 case of Chabot.77 Dr. Boudewijn Chabot was a psychiatrist who supplied lethal
drugs to a patient who had recently experienced a series of traumatic events that had left
her with no desire to live.78 Although offered treatment for her condition, the patient
refused. The Court began by affirming its earlier holdings that euthanasia and assisted
suicide can be justified if:
the defendant acted in a situation of necessity, that is to say

… that confronted with a choice between mutually
conflicting duties, he chose to perform the one of greater
weight. In particular, a doctor may be in a situation of
necessity if he has to choose between the duty to preserve
life and the duty as a doctor to do everything possible to
relieve the unbearable and hopeless suffering of a patient
committed to his care.79
The prosecution argued that the defense of justification should not be available to doctors
who assist with suicides in cases where the suffering is non-somatic and the patient is not
in the “terminal phase.”80 The Supreme Court rejected this contention, and held that in
such cases the justification can be rooted in the autonomy of the patient herself. The
Court noted that, “the wish to die of a person whose suffering is psychic can be based on
an autonomous judgment.”81 However, since Chabot did not consult an independent
medical expert, who had himself examined the patient, and such evidence of consultation
is essential in cases of non-somatic suffering, the Court found him guilty of assistance
with suicide.82 No punishment was imposed.83
77
Nederlandse Jurisprudentie 1994, no. 656; For an English translation of the case, see Griffiths et al.,
supra note 5, at 329-40. The case originated in the Assen District Court, which acquitted the defendant.
78
Id. Her two sons both died within a short period of time.
79
Nederlandse Jurisprudentie 1994, no. 656: 3154, quoted in Griffiths et al., supra note 5, at 81.
80
Id.
81
Id.
82
Id.
20
.
Chabot represents a significant extension of the Dutch Supreme Court’s
willingness to rely upon the norm of individual autonomy. Although always one of the
norms justifying euthanasia and assisted suicide in the jurisprudence, autonomy had not
previously been relied upon to the extent the Court relied upon it in Chabot.
8. Prins and Kadijk: Termination of Life Without Explicit Request Permitted
As noted above, in addition to euthanasia and assisted suicide, there exists another
form of physician-administered death in the Netherlands, termination of life without an
explicit request. This is simply euthanasia without the voluntariness component. Such
terminations can be either involuntary or non-voluntary. The former refers to cases
where an individual is euthanized even though an express will to the contrary is known.
“Non-voluntary euthanasia” is a situation in which the will of the individual is not
ascertainable or has not been made manifest. The jurisprudence addressing this category
has been primarily concerned with cases of infants with birth defects.
Prins was a 1995 case in which a gynecologist stood trial for the murder of a three
day-old baby girl with spina bifida.84 Surgery on the baby’s condition was deemed futile,
and since the infant was suffering greatly, and it was believed that nothing could be done
to relieve the pain, the doctors and parents decided to administer a lethal injection. The
defendant offered three defenses: current understanding of the phrase “take a person’s
life” [van het leven berooft] used in Article 289 of the Criminal Code does not apply to a
life-terminating action by a physician in the context of careful medical practice; the
83
Griffiths et al., supra note 5, at 82. Chabot was later subject to a formal reprimand from an Amsterdam
medical disciplinary board, which claimed that he was wrong to have decided that his patient could not be
treated and that his actions undermined trust in the medical profession. Tony Sheldon, Reprimand for
Dutch Doctor who Assisted Suicide, 310 BRIT. MED. J. 894 (April 8, 1995).
84
Nederlandse Jurisprudentie 1995, no. 602.; For a discussion of the case in English, see Henk Jochemsen,
Dutch Court Decisions On Nonvoluntary Euthanasia Critically Reviewed 13 ISSUES L. & MED. 447 (Spring
1998).
21
.
action was done in accordance with medical-professional standards (the medical
exception); and necessity.85 The Alkmaar District Court rejected the first two defenses,
but held that the defense of necessity could be accepted in cases of active termination of
life without an explicit request, as long as a series of requirements were met. The Court
found Prins’ defense of necessity acceptable for the following reasons:
a. the baby’s suffering had been unbearable and hopeless,

and there had not been another medically responsible
way to alleviate it;
b. both the decision-making leading up to the termination
of life and the way in which it was carried out had
satisfied the ‘requirements of careful practice’;
c. the doctor’s behavior had been consistent with
scientifically sound medical judgment and the norms of
medical ethics;
d. termination of life had taken place at the express and
repeated request of the parents as legal representatives
of the newborn baby.86
Prins was acquitted and the Amsterdam Court of Appeal upheld the acquittal with an
analysis slightly different than the trial court.87 Prins represents the first case in which a
court recognized a defense to euthanasia in the case of a patient unable to express such a
request.
Kadijk involved a general practitioner who, after consulting with the parents and
other physicians, terminated the life of a 24 day-old baby with a fatal disorder. 88 It was
expected that the baby would live less than six months, but possibly up to a year. Kadijk
advanced the same three defenses as were offered Prins.89 The Groningen District Court
85
Jochemsen, supra note 84, at 452.
86
87
Id.
88
For an English translation of the case, see Griffiths et al., surpa note 5, at 341-51.For a discussion of the
case in English, see Jochemsen, supra note 84, at 452.
89
22
.
accepted the defense of necessity, and the decision was affirmed on appeal to the
Leeuwarden Court of Appeal.90
In both Prins and Kadijk the courts made two assumptions crucial to the
exculpatory decisions. The first is that someone with a “short” life expectancy can
legitimately be killed. The short life expectancy of the suffering infant somehow made
the killing more acceptable to the courts.91 It seems that answering the question of what
sort of life expectancy is “short” will always yield an arbitrary answer. After all, the rate
of death for human beings remains at 100%; death, be it sooner or later, remains the lot of
us all.
A second assumption underlying both decisions is that there is a moral
equivalence between a decision not to treat when death is probable and intentionally
killing the individual.92 However, as Jochemsen notes:
such an equation misunderstands the causality between the

nontreatment decision and death. Such an equation would
only be valid if medicine could completely control the
situation of the patient. Such control does not exist, nor is
it desirable.93
Prins and Kadijk signaled a change in Dutch law, as the normal requirement that
euthanasia be voluntary and at the request of the patient was not followed, resulting in the
acceptance of non-voluntary euthanasia.94
90
Griffiths et al., supra note 5, at 84. Jochemsen notes that in the decision and its: “mentioning the consent
of the parents as essential for the defense of necessity. Other conditions considered important by the
Leeuwarden court were: (1) no doubt must exist about diagnosis and prognosis, (2) the doctor must consult
colleagues, (3) death must be brought about in a careful and correct way; and (4) the doctor must report the
case.” Jochemsen, supra note 84, at 453 (footnote omitted).
91
92
Id. at 457.
93
Id. (footnote omitted).
94
Borst-Eilers, supra note 7 at 64. Of course, “euthanasia,” as formally defined in the Netherlands, is
necessary and only what occurs when there is an actual request. Hence, the category “termination of life
without explicit request” was conceived of to cover scenarios such as those in Prins and Kadijk. One
23
.
9. Sutorius: The Suffering Requirement and “Tiredness of Life”
The question of whether patient suffering is actually a necessary requirement to
protect the physician assisting in suicide or performing euthanasia was addressed in the
case of Dr. Philip Sutorius. In 1998 the general practitioner Sutorius assisted Edward
Brongersma, an 86 year-old former senator of the Labor Party [Partij van de Arbeid
(PvdA)], with his suicide. Brongersma suffered from no physical or mental ailment, but
felt “sad and lonely” when he asked Sutorius to end his life.95 His reason for desiring
death was concern about physical decline, a feeling that his existence was hopeless, and a
general “tiredness of life” [levensmoeheid]. The deceased claimed that death had
“forgotten” him.96
Sutorius stood trial at the Haarlem District Court and was acquitted of the
charge.97 This decision accepting the “tired of life” defense was a cause of concern for
the medical profession and for politicians.98 Concerned over the precedent this decision
cannot help but comment on the Orwellian character of this euphemism, at least to the ear of an
Anglophone. Although it was a change in the law to accept euthanasia sans request, the practice of non-
voluntary euthanasia for infants was nothing new at the time of these decisions. A 1987 survey conducted
by the Dutch Pediatric Society found that of the eight neonatology centers surveyed all allowed for the
termination of newborns in some circumstances. Five of the centers admitted to a general policy of
administering a lethal drug in exceptional cases, while the other three centers limited such behavior to the
“dying phase.” Nevertheless, former Minister of Health, Welfare and Sport, Else Borst-Eilers still
maintains that “[i]n the Netherlads, euthanasia is defined as the deliberate termination of the life of a
person on his request by another person. Essential in this definition is the request. Without such a request,
the termination of a life would be murder.” Supra note 7 at 55. If this is indeed the case, one of two things
must be true in light of the Minister’s admissions regarding neonatal practice: (1) there is no “murder,” as a
disabled newborn is not really a “person;” or (2) such an infant is indeed a “person,” and murder is the
admitted result. Neither result is satisfactory.
95
Linawati Sidarto, GP Flouted Euthanasia Law, HET FINANCIEEL DAGBLAD (English ed. Dec. 2001).
96
Raphael Cohen-Almagor, Euthanasia in the Netherlands: the Legal Framework, 10 MSU-DCL J. INT’L
L. 319, 340 (Summer 2001).
97
LJN no.: AA7926 Case no.: 15/035127-99 (October 30, 2000).
98
Tony Sheldon, “Existential” Suffering not a Justification for Euthanasia, 323 BRIT. MED. J. 1384
(December 15, 2001); the spokesman for the Royal Dutch Medical Assoc. said the definition of “hopeless
and unbearable suffering” had been “stretched too far” in the decision. He also noted its novelty: “What is
new is that it goes beyond physical or psychiatric illness to include social decline. We are concerned that
this judgment will marginalize the role of the GP.” Quoted in Tony Sheldon, Dutch GP Cleared After
Helping to End Man’s ‘Hopeless Existence’ 321 BRIT. MED. J. 1174 (November 11, 2000).
24
.
might set if unchallenged, the Minister of Justice responded by filing an appeal with the
Amsterdam Court of Appeals. The Amsterdam Court overruled the trial court, noting
that Brongersma’s purported “hopeless and unbearable suffering” was “vague and
unclear.”99 Setting a standard to prevent such subjectively vague and unclear types of
suffering, the Court held that the suffering must be of a medical, and not an existential
nature.100 Although the defendant was found guilty, no sentence was imposed, as
Sutorius had “acted out of great commitment and compassion towards his patient.”101
Sutorius presented the opportunity to eliminate the suffering requirement from the
list of conditions physicians must keep to avoid prosecution in cases of euthanasia or
assisted suicide. The Amsterdam Court of Appeals declined to so rule, preserving the
original suffering requirement.102 This decision is plainly at odds with one of the norms
often cited as underlying the Dutch euthanasia jurisprudence, individual autonomy. If
individuals are truly autonomous, the presence of suffering should not be a pre-condition
for allowing them to terminate their lives. Had the appellate court upheld the lower
court’s ruling in Sutorius, the vision of former Supreme Court Justice Huib Drion might
have been fulfilled. Drion proposed that everyone over the age of 75 be given the right to
be supplied a suicide pill, with which they could choose their moment of death.103
10. Van Oijen: The Boundary Between Euthanasia and Palliative Treatment
Euthanasia is usually conceived of in terms of a doctor’s administration of a drug
that, with some immediacy, ends the life of the patient. One problem in the Dutch
99
Sidarto, supra note 95; LJN number: AD6753 Case number: 23-000667-01B (December 6, 2001).
100
Sheldon, supra note 98 at 1384.
101
Sidarto, supra note 95.
102
However, the fact that no criminal penalty was imposed does indicate a willingness on the part of the
courts to compromise on the suffering requirement.
103
25
.
experience has been the question of palliative care. Some observers maintain that it is a
common practice of physicians in the Netherlands, and other countries, when dealing
with a terminal patient suffering greatly, to administer a known-to-be-fatal dosage of
anesthetic.104 Palliative treatment is not subject to criminal sanction under the Criminal
Code. Where does the border lie between euthanasia and palliative treatment?
Regrettably, case law has provided little guidance in providing an answer.
In Van Oijen, the Amsterdam District Court addressed the issue of palliative care.
Dr. Wilfred van Oijen, a vocal proponent of euthanasia, injected 50 mg of the anesthetic
drug alloferine into the patient, who died shortly thereafter.105 The patient was an 84
year-old comatose woman, who was “in the very last stage of dying.”106 The
unconscious patient’s daughters wanted to see her life ended, but the patient herself had
made no request for euthanasia and even previously said that she did not wish to die.107
If Van Oijen’s behavior were considered part of palliative treatment, then he would
escape criminal liability, as palliative care according to normal medical practice is legal.
Expert witnesses testified that such behavior could not be considered palliative care.108
The Court agreed with the witnesses, and although exhibiting sympathy for the accused,
it found that he had failed to conform to the “criteria of care” required to avoid
prosecution for euthanasia.109 The Amsterdam court found Van Oijen guilty. Although it
104
See Id. at 29
105
Tony Sheldon, Dutch GP Found Guilty of Murder Faces No Penalty, 322 BRIT. MED. J. 509 (March 3,
2001). Van Oijen appeared on the 1994 television documentary Death By Request.
106
Id.
107
Id.
108
Id.
109
Id. The Court noted that his was merely an “error of judgment,” and that Van Oijen had acted
“honourably and according to his conscience.” Other than improperly administering the anesthetic, the
defendant failed to obtain a second medical opinion.
26
.
was an instance of involuntary euthanasia, as the deceased had previously expressed a
will to continue living, the Court imposed no penalty.110
11. The Case Law in Perspective
The history of Dutch jurisprudence on euthanasia and assisted suicide reveals
several trends. First, even when defendants were found to be guilty of Article 293 or 294
violations, courts were lenient in sentencing, usually imposing little or no penalty.
Penalties that were imposed tended to be either monetary or probationary in nature.
Another theme in the jurisprudence is judicial deference to the medical profession and its
standards and norms. Although the defense of “medical exception” was not accepted, the
courts have adopted the requirements of care that developed within the medical
community itself.111 Additionally, the cases demonstrate a willingness to extend
categories, such as the inclusion of non-somatic pain under “suffering,” and the even the
class of individuals whose lives might be ended without criminal liability. The latter is
patently obvious in the cases of Prins and Kadijk, where courts held physicians justified
in what can only be understood as non-voluntary euthanasia.112 As some Dutch criminal
law scholars have noted, the defense of necessity has also been expanded from “a
provision intended as an escape-valve for extraordinary situations . . . [to] the basis for
110
Supra note 105. Although formally finding guilt, the court’s failure to impose criminal penalty even
though the voluntariness requirement was completely lacking does speak to the degree to which this
requirement is actually valued. This is analogous to what happened in Sutorius regarding the suffering
requirement. Van Oijen was also found guilty of wrongly reporting the death as one due to natural causes,
for which he was given a suspended fine of f 500 (about $2100).
111
On the deference given to the medical community, see Julia Belian, Deference to Doctors in Dutch
Euthanasia Law, 10 EMORY INT’L L. REV. 255, 257 (1996)(“the judiciary has, for all practical purposes,
deferred to a completely extra-governmental body: the medical community”).
112
See supra note 94. This, along with involuntary euthanasia, constitutes what as known in the
Netherlands as “termination of life without an explicit request.” According to the semantic framework
current in the Netherlands “euthanasia” can never be involuntary or non-voluntary, as the definition of the
word itself mandates voluntariness.
27
.
the regulation of hundreds of cases per year.”113 Finally, although several norms are cited
as the guiding principles to the jurisprudence, the polestar has been the principle of
autonomy. However, the principle of autonomy has not always been followed, as at least
the finding of guilt, if not the sentence imposed, in Sutorius represents a clear deviation
from decisions in favor of patient autonomy.
D. The Frequency of Euthanasia and Related Practices
1. Introduction
For some years after euthanasia and assisted suicide had achieved the status of de
facto legality in the Netherlands, little was known of the actual frequency of such medical
behavior. In 1990 and 1995 national studies were undertaken to provide statistical data to
address the question.114 What follows is a discussion of the studies.
2. Incidence of Euthanasia and Related Practices 1990-1995
The uncertainty about the frequency of euthanasia and related behavior prompted
the government to appoint a commission to study the instances of such activities. The
commission was chaired by Prof. J. Remmelink, then Advocate General [Advocaat-
Generaal] of the Supreme Court. The “Remmelink Commission” delegated the task of
conducting the research to the Department of Public Health at the Erasmus University of
Rotterdam.115 This 1990 study, which the Remmelink Commission published as a report
in September 1991, was the first of its kind; previously there was little but conjecture
about the numbers involved. A follow-up study was conducted along the same lines in
113
Griffiths et al., supra note 5, at 321, citing Schlaken, Note Accompanying the Decision of the Supreme
Court in the Chabot Case, 1994 Nederlandse Jurisprudentie no. 656: 14.
114
For the results in English, See Paul J. van der Maas, et al., Euthanasia, Physician Assisted Suicide, and
Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995, 335 (no. 22) NEW ENG.
J. OF MED. 1699 (1996).
115
Johannes J.M. van Delden, et al., The Remmelink Study: Two Years Later; Assisted Suicide 23 THE
HASTINGS CTR. REPORT 24 (1993).
28
.
1995. Data was collected by two methods: interviews of randomly selected physicians
and questionnaires which were mailed to physicians that had attended deaths.116 In 1990
there were an estimated 25,100 requests made by patients for euthanasia or assisted
suicide at a later time in the course of a disease.117 The results of the 1995 study estimate
the number at 34,500, a 37% increase in requests from the 1990 estimate. In 1990 there
were an estimated 8,900 explicit requests for euthanasia or assisted suicide at a particular
time.118 The 1995 study estimated 9,700 such requests, a 9% increase from the 1990
figure.119 There was a clear increase in both generalized and concrete requests for
euthanasia and assisted suicide from 1990 to 1995.
The interview study revealed that 2,447 deaths, 1.9% of all deaths in the
Netherlands in 1990, were attributable to euthanasia.120 The same method used in the
1995 study produced a number of 3,118 deaths via euthanasia, 2.3% of total deaths.121
The questionnaire method produced only slightly differing results: for 1990, 2,189 (1.7%)
and for 1995, 3,253 (2.4%).122 Both methods in the two studies indicate that there was a
steady growth in the number of deaths by euthanasia in the Netherlands from 1990 to
1995. The raw number of estimated euthanasia deaths increased 21.5% from 1990 to
1995.123
116
Van der Mass et al., supra note 114, at 1699.
117
Id. at 1701 (Table 1).
118
Id.
119
Id.
120
Id. Only percentages are given in the study; the number 2,447 was arrived at by multiplying 1.9% by the
total number of deaths in the Netherlands in 1990, which was 128,786.
121
Van der Mass et al., supra note 114, at 1701. Only percentages are given in the study; the number 3,118
was arrived at by multiplying 2.3% by the total number of deaths in the Netherlands in 1995, which was
135,546.
122
Id.
123
Id. This number is not adjusted for the change in the total number of deaths in these years.
29
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Assisted suicide in both 1990 and 1995 was much less common than euthanasia.
The interviews yielded the following estimates for assisted suicide: 386, .3% of all
deaths, in 1990; and 515, .4%, in 1995.124 The questionnaire method produced slightly
lower estimates of .2% of total deaths for both years (with 258 in 1990, and 271 in
1995).125 There was little real increase in assisted suicides over the period covered in the
studies.
The most controversial activity studied was the ending of life without the patient’s
explicit request. There is no data available for this in the 1990 interview study. The
1995 interview study estimated that 949, .7% of all deaths for that year, were a result of
patients being killed without their request.126 The questionnaire study of the same year
produced identical results, and the 1990 questionnaire study yielded that 1030, .8% of all
deaths for that year, were of this category.127 This category, which is euthanasia without
the voluntariness component, is roughly a third as more frequent as euthanasia—that is,
the definition of euthanasia meeting the Dutch voluntary request condition (which
includes assisted suicide). It is about twice as common as the category of assisted
suicide.
A category dwarfing all of the three mentioned above is death by the
administration of a large dose of a palliative drug. The interview study of 1990 indicated
that 20,992, 16.3% of all deaths, patients died in this fashion that year.128 The same
method in 1995 produced an estimated 19,925, 14.7% of the 135,546 Dutch deaths that
124
Id.
125
Id.
126
Van der Mass et al., supra note 114, at 1701
127
Id.
128
Id.
30
.
year.129 The questionnaire studies resulted in higher numbers for both 1990 and 1995.
These figures were 24,212 (18.1% of all deaths), and 25,889 (19.1% of all deaths),
respectively.130
3. 1995 Physician Attitudes and Practices
In 1995, 53% of the 405 randomly selected physicians in the Netherlands
admitted to having performed euthanasia or assisted suicide.131 Some 29% had done so in
the previous 24 months.132 Of the physicians interviewed who had never performed
euthanasia or assisted suicide, 35% expressed a willingness to do so in the future under
certain conditions.133 Nine percent (9%), would never perform either, but would refer a
patient desiring such treatment to another physician.134 Only 3% would never perform
euthanasia or assisted suicide or even refer a patient to another physician.135 The data
from 1995 demonstrate that most Dutch physicians are or would be willing participants,
as 88% have either administered euthanasia or assisted suicide or would be willing to do
so in the future.
4. Psychiatric Practice and Physician-Assisted Death
The Dutch Supreme Court’s significant 1994 decision in Chabot opened the door
to the possibility that psychic pain alone could be sufficient to meet the “suffering”
requirement. Physicians assisting in suicides with psychiatric patients could therefore be
129
Id.
130
Id. Data are also available for the total number of reported euthanasia and assisted suicide cases
nationally in 2000 and 2001. In 2000 there were 2,127 cases actually reported to the Dutch authorities.
Toetsingscommissies euthanasia [Euthanasia Review Committee], Jaarverslag 2000 [2000 Annual Report],
28-32. 2,054 cases were reported in 2001. Toetsingscommissies euthanasia [Euthanasia Review
Committes], Jaarverslag 2001 [2001 Annual Report], 30-34.
131
Van der Mass et al, supra note 114, at 1702 (Table 2).
132
Id.
133
Id.
134
Id.
135
Id.
31
.
found justified. A 1996 study addressed the frequency of physician-assisted death in
Dutch psychiatric practice.136 Questionnaires were sent to 673 Dutch psychiatrists, which
is about half of all such specialists in the country; the response rate was 83%.137
The study estimated that 320 requests were made every year for physician-
assisted suicide in psychiatric practice.138 Thirty-seven percent (37%) of psychiatrists
had received an explicit and persistent request from a patient for assisted suicide, and two
percent (2%) of psychiatrists acceded to such a request.139 The profession as a whole
appeared supportive of the holding in Chabot, as sixty-four percent (64%) thought that
physician-assisted suicide for psychiatric patients could be acceptable.140 Although there
is wide acceptance of physician-administered death for psychiatric patients in principle,
this has not translated into widespread practice in fact. The authors of the study speculate
that this might be attributable to the overlapping relationship between the primary-care
giver and the often-ancillary psychiatrists.141
E. Legislative Developments Prior to the New Law
1. The Law on Notification
The case law established the criteria by which physicians might be justified before
the law in the performance of euthanasia and assisted suicide. The judicial acceptance of
136
Johanna H. Groenewoud, et al., Physician-Assisted Death in Psychiatric Practice in the Netherlands,
336 NEW ENG. J. MED. 1795 (1997).
137
Id. at 1795.
138
Id. at 1796.
139
Id.
140
Id.
141
Groenewould, et al, supra note 136, at 1801.
In Dutch psychiatry, there is a rather liberal attitude toward physician-

assisted suicide in psychiatric patients but a very reluctant practice.
Consultation of a psychiatrist about requests for euthanasia or
physician-assisted suicide because of medical diseases is relatively rare
and perhaps should occur more often, although most Dutch
psychiatrists think that the primary care giver should decide whether
psychiatric consultation is necessary.
32
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such practices caused difficulties in the way death is reported and non-natural death
investigated. “The Law on the Disposal of Corpses requires [that prior to] burial or
cremation . . . a doctor [must] attest that [the] death was [attributable] to a natural
cause.”142 Normally, in cases where the death is clearly a result of a natural cause, the
attending physician simply certifies it as such. If the deceased’s own physician cannot
certify the death, he is obligated to report it to the municipal coroner, who in turn
examines the body.143 If the coroner also cannot certify the death as natural, he is
required to refer the case to the prosecutor.144 This obviously puts the euthanasia-
performing physician in an imposition, as he is not able to claim that the death is natural,
thereby opening his actions to criminal investigation. The old system of reporting death
presented a strong built-in incentive for physicians assisting in death to simply falsify
death certificates and record euthanasia deaths as “natural.”
The Minister of Justice and the Royal Dutch Medical Association came to an
agreement in 1990 which established a procedure for reporting in cases of euthanasia,
assisted suicide, and termination of life without explicit request.145 The agreement,
which created a new procedure that came into force in 1991, allayed some of the fears of
prosecution for physicians engaging in life-terminating behavior.146 In return for this
concession to the medical community, the government hoped to increase disclosure rates
of euthanasia deaths, promote the adherence to “the requirements of careful practice,”
142
See Griffiths, et al., supra note 5, at 39, citing Wet van 7 maart 1991, houdende nieuwe bepalingen
inzake de lijkbezorging, Staatsblad 1993, 655, (defining euthanasia as “killing another person at his
request”).
143
See Griffiths, et al, supra note 5, at 39.
144
Id. at 39-40.
145
Gerrit van der Wal, et al., Evaluation of the Notification Procedure for Physician-Assisted Death in the
Netherlands, 335 NEW ENG. J. MED. 1706 (1996).
146
Id.
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and national uniformity in reporting.147 Under the agreed-upon procedure, the physician
does not immediately issue a certificate of natural death in the case of assisted-death, but
informs the coroner.148 The physician then completes a checklist mirroring the
requirements of careful practice, and the coroner conducts a postmortem investigation
and contacts the public prosecutor.149 “The public prosecutor [makes the decision]
whether to permit burial or cremation . . . and presents [an opinion] to the prosecutor
general.”150 The prosecutor general then has the option to present the case and his
opinion of it to the College of Procurators General, which decides (subject to veto by the
Minister of Justice) whether to prosecute the physician.151
The Dutch Parliament simply adopted this procedure in the 1993 amendment to
the Law on the Disposal of Corpses.152 The essential change offered in this legislation
was in the amendment of Article 10, which previously had required a coroner unable to
issue a death certificate to make a report to the prosecutor according to a form prescribed
by the Minister of Justice.153 The amended Article 10 required that the form be
prescribed by Order in Council [algemene maatregel van bestuur], which is submitted by
a Minister and approved by the Government (Queen and Council of Ministers) upon
consultation from the Council of State.154 A little over two weeks after the passage of the
amended Article 10, an Order in Council was issued.155
147
Id.
148
Id.
149
Id. at 1706-1707.
150
See Gerrit van der Wal, et al, supra note 145, at 1707.
151
Id.
152
Law of 2 December 1993 (Staatsblad 1993: 643), effective 1 June 1994 (Staatsblad 1994: 321).
153
See Griffiths, et al, supra note 5, at 309.
154
Id. at 309 n.6.
155
Order in Council of 17 December 1993 (Staatsblad 1993: 688), effective 1 June 1994 (Staatsblad 1994:
321).
34
.
The Order required the municipal coroner to issue a report to the prosecutor in
cases of suspected euthanasia, assisted suicide or termination of life without explicit
request.156 The reporting coroner must certify that he has received a written report from
the responsible doctor which addresses all of the questions on the list of points requiring
attention [aandachtspunten].157 The appendix to the Order in Council outlined these
points requiring attention, and provided questions relating to: the medical condition of the
deceased; the nature of the request (if there was one); the events surrounding termination
without explicit request (if there was no request); consultation of other doctors; and
details relating the administration of the life-terminating treatment.158 The 1993
legislation and order set a common standard procedure for reporting of physician-assisted
deaths; it did not have any effect on the explicit prohibition of euthanasia and assisted
suicide contained in the Criminal Code.159 This claim that the Criminal Code was
unaffected notwithstanding, Parliament’s codification of a reporting procedure for acts in
violation of the Code demonstrates the extent to which the relevant Code articles were
mere paper tigers.
II. THE NEW DUTCH LAW LEGALIZING EUTHANASIA
A. Early Legislative Proposals
The law passed by the Dutch Parliament in 2001 that legalizes euthanasia and
assisted suicide did not develop in a vacuum. As noted above, it was largely legislative
adoption of judicially created exceptions to the Criminal Code. Although the courts
156
See id. Article 1, translated in Griffiths, et al, supra note 5, at 309-310.
157
Id.
158
Jochemsen, supra note 74, at 448. (Jochemsen notes that the new regulation was criticized in Parliament
for including nonvoluntary euthanasia along with voluntary euthanasia in its regulatory framework.)
159
Supra note 155, at Article 1, translated in Griffiths, et al, supra note 5, at 310. “This report does not
affect the applicability of articles 287 [manslaughter], 289 [murder], 293 [euthanasia], 294 [assisted
suicide] of the Criminal Code.”
35
.
provided the substance, there were several legislative proposals made in the last two
decades.
The first such draft was the 1985 proposal of the State Commission on Euthanasia
[Staatscommissie Euthanasie].160 It presented a new Article 292b, which provided that
doctors who intentionally terminate the life of someone not able to express their will are
not punishable if “the termination of life was performed by a doctor in the context of
careful medical practice on a patient who, according to prevailing medical opinion, has
permanently lost consciousness, and after treatment has been stopped because it was
futile [zinloos].”161 The Commission also proposed an amendment to Article 293 that
would have prevented the punishment of doctors for euthanasia or assisted suicide that
acted within the context of “careful medical practice” [zorgvuldig medisch handelen] in
the termination of the life of a patient in a situation of “hopeless necessity” [uitzichtloze
noodsituatie].162 The proposal also detailed the conditions of “careful medical
practice.”163 There were no substantive changes made to Article 294 and its prohibition
on assistance with suicide.164 The 1985 proposal of the State Commission on Euthanasia
was the first attempt to draft legislation that incorporated judicial developments on the
issue of euthanasia.165 However, political considerations prevented the Parliament from
seriously considering any legislation for almost fifteen years.
160
Staatscommissie Euthanasie [State Commission on Euthanasia], Rapport van de Staatscommissie
Euthanasie [Report of the State Commission on Euthanasia], The Hague, 1985, translated in Griffiths et
al., supra note 5, at 314.
161
Proposed Article 292b, supra note 160, translated in Griffiths, et al., supra note 5, at 314-315.
162
Proposed Article 293, supra note 160, translated in Griffiths, et al., note 5, at 314-315.
163
Id.
164
165
See Griffiths, et al., supra note 5, at 74, 316. (The Proposal formed the framework of later proposals,
such as the Wessel-Tuinstra draft of March 8, 1986, Second Chamber of Parliament, 1986-1987, 18 331
no. 38, and the Government’s tentative draft bill [de Proeve] of 1986, Second Chamber of Parliament,
36
.
B. How a Euthanasia Bill Became a Law
In August of 1999 a bill [wetvoorstel] addressing euthanasia and assisted suicide
was introduced into the Lower House of Parliament [Tweede Kamer der Staten-
Generaal].166 On November 28, 2000, the Lower House, by a margin of 104 to 40,
approved the bill.167 The bill was supported mainly by the Labor Party (Pvda), the
People’s Party for Freedom and Democracy (VVD), the Democrats (D66), and the
Green-Left [Groenlinks].168 The Christian-Democratic Appeal (CDA) and three smaller
Christian splinter-parties opposed its passage.169
The bill was then sent to the Upper House [Eerste Kamer der Staten-Generaal]
for consideration. After some debate the Upper House passed the bill on April 10, 2001,
with 46 senators voting for and 28 against.170 Those voting in favor of the bill were
drawn mainly from the PvdA, VVD, D66, and GroenLinks parties.171 The dissenters
came from the CDA, ChristenUnie, Orthodox Calvinist (Reformed), and Socialist
1985-1986, 19 359, no. 2. The latter included the requirement that euthanasia could only be performed
where there was “a concrete expectation of death”).
166
Tweede Kamer der Staten General, [Second Chamber of Parliament] 1998-1999, 26 691, no. 1-2.
167
Nederlands Parlement Haalt Euthanasie; Kritiek op Den Haag uit Vaticaanstad [Dutch Parliament
Goes for Euthanasia: Criticism of The Hague out of the Vatican], DE FINANCIEEL-ECONOMISCHE TIJD,
November 29, 2000, at 7.
168
Id.
169
Id. (The three other Christian parties are the Orthodox Calvinist (Reformed) Party [Staatkundig
Gereformeerde Partij], the Catholic Political Party [Katholiek Politieke Partij], and the Christian Union
[ChristenUnie]).
170
Eerste Kamer Ook Voor Euthanasiewet [First Chamber also in Favor of Euthanasia Bill], DE
TELEGRAAF, April 11, 2001.
171
Id.
37
.
parties.172 On the day of the vote around 10,000 people opposed to passage of the bill
demonstrated outside Parliament in The Hague.173
After passing both houses of Parliament, the Termination of Life on Request and
Assisted Suicide (Review Procedures) Act was made law by royal decree of Queen
Beatrix on March 15, 2002.174 The law became effective as of April 1, 2002.175
C. The Text of the Act
1. Amendments to the Criminal Code
The most significant aspects of the Termination of Life on Request and Assisted
Suicide (Review Procedures) Act are its amendments to the sections of the Criminal
Code proscribing euthanasia and assisted suicide. Article 293 now reads:
1. A person who terminates the life of another person at that

other person’s express and earnest request is liable to a
term of imprisonment of not more than twelve years or a
fine of the fifth category.
2. The offence referred to in the first paragraph shall not be

punishable if it has been committed by a physician who has
met the requirements of due care as referred to in Article 2
of the Termination of Life on Request and Assisted Suicide
(Review Procedures) Act and who informs the municipal
autopsist of this in accordance with Article 7 second
paragraph of the Burial and Cremation Act.176
Article 294 was also amended, now reading as follows:
1. A person who intentionally incites another to commit

suicide, is liable to a term of imprisonment of not more
172
Id.
173
Demonstratie Tegen Euthanasiewet [Demonstration Against Euthanasia Bill], DE TELEGRAAF, April 11,
2001.
174
Besluit van 15 maart 2002, houdende vaststelling van het tijdstip van inwerkingtreding van de Wet
toetsing levensbeëindiging op verzoek en hulp bij zelfdoding; see also supra note 1.
175
See supra note 1.
176
Supra note 1, at Article 20A, Staatsblad 2001, 194, translation available at,
http://www.minjust.nl:8080/c_actual/persber/26691-engels.pdf, cite now available at
http://www.justitie.nl/english/.
38
.
than three years or a fine of the fourth category, where the

suicide ensues.
2. A person who intentionally assist [sic] in the suicide of

another or procures for that other person the means to
commit suicide, is liable to a term of imprisonment of not
more than three years or a fine of the fourth category,
where the suicide ensues. Article 293 second paragraph
applies mutatis mutandis.177
In light of these amendments to the Criminal Code, physicians who engage in euthanasia
or assisted suicide can avoid criminal sanction if they act in accordance with the
requirements of due care and report the death in a proper manner.
2. The Requirements of Due Care
The requirements of due care are provided in section 1 of Article 2, which
provides:
1. The requirements of due care, referred to in Article 293

second paragraph Penal Code mean that the physician:
a. holds the conviction that the request by the patient was
voluntary and well-considered,
b. holds the conviction that the patient’s suffering was
lasting and unbearable,
c. has informed the patient about the situation he was in and
about his prospects,
d. and the patient hold the conviction that there was no
other reasonable solution for the situation he was in,
e. has consulted at least one other, independent physician
who has seen the patient and has given his written
opinion on the requirements of due care, referred to in
parts a – d, and f. has terminated a life or assisted in a
suicide with due care.178
177
Supra note 1, at Article 20B, Staatsblad 2001, 194. translation available at
178
Supra note 1, at Article 2, Staatsblad 2001, 194, translation available at
39
.
Most of these “requirements of due care” owe their existence to the conditions adopted in
case law. The 1985 case of Admiraal endorsed the five requirements of careful practice
articulated by the KNMG, holding that physicians should only terminate a life after
consultation with a colleague and when the patient’s request is voluntary, well-
considered, lasting, and a result of unacceptable suffering.179 The requirement of keeping
the patient informed is also no innovation, as the New Dutch Civil Code [Nieuw
Burgerlijk Wetboek] already required informed consent in all contracts for medical
services.180 The final requirement found in subsection (f) seems to mandate that
physicians adhere to due care in the actual administration of the life-ending procedure,
presumably by minimizing pain and trauma.
Article 2 also addresses situations in which consent is problematic due to the
incapacity or minority of the patient. Section 2 allows for “advanced directives,” whereby
a previously written request for termination of life will be honored in cases where the
patient is at least sixteen years of age and not capable of expressing his will on the
matter.181 Somewhat counter-intuitively, the text does not require that the individual be
sixteen years of age at the time of making a written request—only that in order to honor a
written request the incapacitated patient must be at least sixteen at the time of
termination. Minority per se will not result in the invalidation of a request; but the
request must be made by one with a “reasonable understanding” [redelijke waardering]
of his interests.182
179
Supra note 20.
180
Nieuw Burgerlijk Wetboek 7:448, amended by Dutch Medical Services Act of 1994, Stb. 1994, 837
(November 17, 1994), renumbered by the Decree of the Minister of Justice, Stb. 1993, 837 (December 15,
1994); see also E.H. Honduis and A. Van Hooft, The New Dutch Law on Medical Services, 1996
NETHERLANDS INT’L. L. REV. 9 (1996).
181
Supra note 1, at Article 2 (2), Stb 2001, 194.
182
Id. at Article 2(3).
40
.
Sections 3 and 4 of Article 2 address concerns relating to minors and parental
rights. Patients between the ages of sixteen and eighteen with a reasonable understanding
of their interests may have a request for euthanasia honored after their parent(s) or
guardian(s) have “been involved in the process.”183 For patients between age twelve and
sixteen, the parent(s) or guardian(s) have an absolute right to veto their child’s decision to
be euthanized. In order to meet the requirements of due care in such situations, the
physician must be sure that the parental guardian(s) “agree” to the termination.184 An
earlier Lower House draft of the bill contained an exception to the absolute parental veto
for children between ages twelve and sixteen.185 This provision, which would allow a
twelve-year old to choose euthanasia against the wishes of a parent, proved too
controversial and was later removed by the Government.186
3. Oversight: The Regional Review Committees
The Termination of Life on Request and Assisted Suicide (Review Procedures)
Act exempts physicians acting along the lines of the requirements of due care from
prosecution under articles 293 and 294 of the Criminal Code.187 However, one wonders
how exactly public prosecutors can be assured that all of the exculpatory conditions are
met. In the establishment of the Regional Review Committees for Termination of Life on
Request and Assisted Suicide [Regionale Toetsingscommissies voor Levensbeëingiging
183
Id.
184
Id. at Article 2 (4).
185
Kamerstuk 1998-1999, 26691, nr. 1-2, Tweede Kamer (August 17, 1999).
186
See Ministry of Justice Press Release 3940 (July 12, 2000), available at
http://www.minjust.nl:8080/c_actual/persber/pb0622.htm.) (last visited August 31, 2002), cite now
available at http://www.justitie.nl/English/.
187
Supra note 1 Article 293, 294.
41
.
op Verzoek en Hulp bij Zelfdoding], the Act provides a framework for oversight of
physician decisions to terminate life.188
Deaths in the Netherlands must be certified as being a result of natural causes as a
prerequisite to burial or cremation.189 If the physician conducting the postmortem
examination is convinced that the death resulted from euthanasia or assisted suicide, the
physician is not permitted to issue a natural death certificate.190 Instead, the physician is
under an obligation to complete a form which notifies the municipal coroner of the cause
of death, and supplement it with a “reasoned report” [een beredeneerd verslag] detailing
whether and how the requirements of due care were observed.191 The Act provided that
the form of this report and the system of notification were to be approved by Parliament
on recommendation from the Minister of Justice and the Minister of Health, Welfare, and
Sports.192 Parliament has since adopted a model form of notification and report.193
The municipal coroner must then complete a form notifying the regional review
committee and forward the reasoned report of the attending physician.194 The coroner
must also notify the public prosecutor and register of births, deaths and marriages in
every instance in which a certificate of natural death cannot be issued.195 The prosecutor
must then issue a certificate of no objection before burial or cremation of the body may
occur; if no certificate is forthcoming, then the coroner and review committee are notified
188
Supra note 1, Hoofdsdruk (Chapter) III, Stb 2001, 194.
189
190
Supra note 1, at Article 21(A), Stb 2001, 194.
191
Id.
192
Id. at Article 21(B).
193
Besluit van 6 maart 2002; Staatsblad 2002, 140. Physicians who terminate life must answer a series of
twenty-two questions. See Model Report in the Supplement to Staatsblad 2002, 140, 6ff.
194
Supra note 1, at Article 21(C), Staatsblad 2001, 194.
195
Id.
42
.
of his decision.196 The roles of the coroner and prosecutor are rather limited when
considered along with the activities of the regional review committee.
The composition of the regional review committee is addressed in the second
paragraph of Article 3.
A committee is composed of an uneven number of

members, including at any rate one legal specialist, also
chairman, one physician and one expert on ethical or
philosophical issues. The committee also contains deputy
members of each of the categories listed in the first
sentence.197
The Dutch word rendered “philosophical issues” in English is zingevingsvraagstukken,
which “is used to describe the discussion on the prerequisites for a meaningful life.”198
Ministers appoint the members of the committee for a renewable term of six years.199
After having been given the report of the physician, the committee makes a determination
of whether or not the requirements of due care were kept.200 The committee can ask the
physician to provide written or oral supplements to the report, and can also conduct an
196
Id. at Article(D).
197
Id. at Article 3, Staatsblad 2001, 194, available at http://www.minjust.nl:8080/c_actual/persber/26691-
engels.pdf, cite now available at http://www.justitie.nl/english.
198
Translation available at http://www.minjust.nl:8080/c_actual/persber/26691-engels.pdf, cite now
available at http://www.justitie.nl/english/. Just how exactly one qualifies as an expert in the discussion of
what the “prerequisites” of a “meaningful life” are not made clear in the text. It seems that any measure of
what is necessary to make a life meaningful is inherently subjective—what may be at the center of one
person’s life could be nonexistent or of little concern in the equally meaningful life of another. Loosing a
finger may affect the meaning of a concert pianist’s life in ways it does not affect the meaning of an
accountant’s. Although the a child with Down’s Syndrome is probably not in possession of the cognitive
powers that work in quantum physics demands, it is presumption to assert that the child’s simple joys are
any less meaningful to him than Einstein’s labors were to the great thinker. Perhaps the text of the Act
refers not to individuals in possession of this elusive (or nonexistent) subjective knowledge of what the
prerequisites for a meaningful life are in every human case, but simply to scholars familiar with the terms
of the debate of what society might consider the prerequisites to a meaningful life to be—what Dutch
society believes “needed” to have a “life worth living.” If there must be a debate, the continuation of it is
to be preferred to the law’s heavy-handed recognition of a particular view of who is in possession of the
prerequisites and who is not.
199
Supra note 1, at Article 4, Stb 2001, 194.
200
Id. at Article 8.
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independent investigation of other individuals.201 The committee must give the physician
a written opinion within six weeks of receiving the physician’s original report.202 If the
opinion of the committee is that the physician was in conformity with the requirements of
due care, no further action is taken. However, if the committee’s opinion is that the
requirements have been violated, the committee must inform the College of Procurators
General and the regional health care inspector of this fact.203 Any information gathered
by the committee in its investigation must be surrendered to the public prosecutor upon
request.204 Finally, the committees must provide the Ministers with an annual report
detailing: the number of cases of termination of life upon request and assisted suicide in
which the committee has rendered an opinion; the nature of these cases; and the
considerations involved and opinions.205
Criticism can be made of the effectiveness of this system of oversight. One critic
notes that the oversight system greatly hampers the prosecutor’s ability to monitor
physician conduct, as a favorable committee ruling precludes any further prosecutorial
activity.206
Under the amendments to the Criminal Code in the Act, physicians who terminate
life upon request or assist in a suicide will be free from criminal liability if they adhere to
certain requirements of due care. The primary means of ensuring compliance is through
201
Id.
202
Id. at Article 9, see also Article 12. Opinions are adopted by a simple majority of the committee; all
members must participate in the vote.
203
Id.
204
Supra note 1, at Article 10, 14. The physician must be informed that information regarding his actions
has been given to the prosecutor. Otherwise, unless under another statutory duty, committee members are
bound to keep information obtained in the course of their work confidential.
205
Id. at Article 17.
206
Henk Jochemsen, Legalization of Euthanasia in the Netherlands, 16 ISSUES L. & MED. 285, 286 (Spring
2001)(noting that the public prosecutor is not even privy to the committee report in cases where the
committee rules in favor of the physician).
44
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the regional review committees, which review the reasoned report of the attending
physician and the municipal coroner’s report. If the committee issues an opinion that the
requirements of due care were violated, the matter is referred to the College of
Procurators General and the regional health care inspector. The ability to pursue criminal
prosecution rests with the former, which will also create national uniformity in
prosecution standards. With an understanding of the background to and substance of the
new Dutch law, consideration of its validity under the Convention for the Protection of
Human Rights and Fundamental Freedoms is now appropriate.
III. THE EUROPEAN CONVENTION ON HUMAN RIGHTS
A. Introduction
The Netherlands is party to international agreements that restrain Parliament’s
ability to enact legislation that may violate various rights of individuals within its
territory. Significant for present purposes is The Council of Europe’s Convention for the
Protection of Human Rights and Fundamental Freedoms (“ECHR”), a document to which
the Netherlands is an original signatory.207 What follows is an analysis of the validity of
the new law in light of the ECHR.208
207
European Treaty Series no. 005, opened for signature November 4, 1950, entered into force September
3, 1953, 213 UNTS 221. The Netherlands signed the ECHR on November 4, 1950. Ratification by the
Netherlands occurred on August 31, 1954, available at
http://conventions.coe.int/treaty/EN/searchsig.asp?NT=005&CM=&DF
208
Treaty on European Union (Treaty of Amsterdam), available at http://europa.eu.int/eur-
lex/en/treaties/dat/C_2002325EN.000501.html. Although beyond the scope of this paper, consideration
could be given to the possible significance of the Netherlands’ membership in the European Union. Article
6(1) provides: “The Union is founded on the principles of liberty, democracy, respect for human rights and
fundamental freedoms, and the rule of law, principles which are common to the Member states Article 7
allows for the sanctioning of Member States upon the finding of the “existence of a serious and persistent
breach” of the principles of Article 6(1). It is unlikely, given political considerations, the drastic exercise
of EU sanctions against the Netherlands will occur in this case. However, this system of sanctions was
utilized, much to the surprise of observers, in 2000 against Austria upon the inclusion of Jörg Haider’s
Freedom Party in the governing coalition. If the European Court of Human Rights were to find the
Netherlands in violation of the ECHR, EU sanctions could prove to be an effective means of enforcing the
45
.
B. Article 2—the Right to Life
Article 1 of the ECHR is entitled “Obligation to protect human rights,” and reads:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in Section I of this Convention.” 209 The first right enumerated in
Section I is that of the right to life. Article 2, “Right to life,” provides:
1. Everyone's right to life shall be protected by law. No

one shall be deprived of his life intentionally save in the
execution of a sentence of a court following his
conviction of a crime for which this penalty is provided
by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this article when it results from the use
of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape
of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a
riot or insurrection. 210
The positioning of this right at the top of the list of all other enumerated rights in
the Convention indicates the gravity of the right to life in the minds of the drafters—one
must have a right to live before any other rights can be exercised. Unlike many other
rights listed in the document, there can be no derogation in war or time of public
emergency from the obligation in Article 2 to protect the right to life.211 Also, the
judgment, especially since Article 6(2) of the Treaty on European Union requires respect for human rights
as guaranteed by the ECHR.
209
Heading added according to the provisions of Protocol No. 11 (ETS No. 155), available at
http://conventions.coe.int/treaty/en/Treaties/Html/005.htm.
210
Id.
211
Id. at Article 15—“Derogation in time of emergency,” (Subsection 2 reads: “No derogation from Article
2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7
shall be made under this provision”).
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.
European Commission of Human Rights has held that the few enumerated situations
listed in which deprivation of life does not violate Article 2 are exhaustive.212
The significance of the right to life is further illustrated by the extent to which
States have a positive duty to protect, and not merely abstain from violating, the right.
Article 3 of the United Nations Universal Declaration of Human Rights reads: “Everyone
has the right to life, liberty and security of person.”213 The ECHR somewhat
unexpectedly varies from this course with the opening sentence of Article 2: “Everyone’s
right to life shall be protected by law.”214 The language of the first sentence of Article 2
with its mandatory “shall” indicates that all Contracting States must ensure that they
possess an effective legal regime that protects the right to life.215 States who fail to
establish and execute laws216 that protect life contravene Article 2, and as a result, are not
in compliance with the obligation imposed under Article 1.217 The position of the right to
life vis-à-vis other rights, the fact it cannot be derogated from the exhaustive nature of the
exceptions to the right, and requirement that States effectively protect the right to life all
indicate that the right to life is of fundamental importance to the entire scheme of the
ECHR.
212
Stewart v. U.K. (Application no. 10044/82), 39 Eur. Comm’n H.R. Dec. & Rep. 162.
213
U.N. GAOR 217 A (III) of 10 December 1948, available at http://www.un.org/Overview/rights.html.
214
FRANCIS G. JACOBS, THE EUROPEAN CONVENTION ON HUMAN RIGHTS 21 (1975). Jacobs argues that
the ECHR in this respect “carries a different emphasis [than the Universal Declaration], but does not seem
to affect the substance of the rights guaranteed under the Convention.”
215
7154/75, 14 Eur. Comm’n H.R. Dec. & Rep. 31 (States must not only refrain from taking life
intentionally, but must also “take appropriate steps to safeguard life.”).
216
That the right to life is “protected by law” implies that the State make the intentional killing by an
individual a “punishable offense.” See J.E.S. FAWCETT, THE APPLICATION OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 37 (1987).
217
In addition to establishing and enforcing laws that protect life, the procedural right of Article 2 creates a
positive obligation that States carry out an effective investigation of the circumstances surrounding the
death. “This obligation applies irrespective of whether lethal force was applied by the State’s agents or by
any other persons.” Peter Ferguson, The Right to Life: Some Procedural Requirements, 151 NEW LAW J.
808 (June 1, 2001), citing LESTER & PANNICK, HUMAN RIGHTS LAW AND PRACTICE 4.2.32 (1999).
47
.
The relevant question for present purposes is whether the Netherlands, in
legalizing euthanasia and assisted suicide, has contravened this most foundational right
enshrined in Article 2 of the ECHR.
C. The Council of Europe Parliamentary Assembly’s Recommendation 1418
The issue of the permissibility of euthanasia and assisted suicide under Article 2
has yet to be directly addressed by either the European Commission or Court of Human
Rights. Responding to the introduction of the legislative proposal in the Dutch
Parliament, the Parliamentary Assembly of the Council of Europe adopted
Recommendation 1418 (1999), Protection of the Human Rights and Dignity of the
Terminally Ill and Dying.218 In the recommendation, the Parliamentary Assembly
forcefully declared that euthanasia and assisted suicide were violations of Article 2.
The document begins by observing that protecting human dignity is the raison
d'être of the Council of Europe.219 Next, there is a brief discussion of some of the
problems and potential threats to human dignity presented by the advent of new medical
techniques.220 There are other threatening factors identified, such as: poor access to
palliative care; neglect of psychological and spiritual needs; use of extraordinary
measures to artificially prolong the life of a patient without their consent; patient fears of
losing autonomy and becoming burdensome to others; and insufficient allocation of
218
Recommendation 1418 (1999), available at
http://assembly.coe.int/documents/adoptedtext/ta99/erec1418.htm, adopted June 25, 1999 (24th Sitting).
The recommendation grows out of the May 21, 1999 report of Ms. Edeltraud Gatterer, Rapporteur for the
Social, Health and Family Affairs Committee (Doc. 8421). See also Opinion of the Committee on Legal
Affairs and Human Rights (Doc. 8454).
219
Id. at § 1 (“The voacation of the Council of Europe is to protect the dignity of all human beings and the
rights which stem there from.”).
220
Id. at § 2.
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resources to help the dying.221 The heart of the recommendation is the last section, which
recommends that the Committee of Ministers encourage the Member States to effectuate
a three-pronged approach to respecting and protecting the dignity of the terminally ill and
dying.222 The three aspects of this protection are as follows: recognition of right to
comprehensive palliative care; preserving the patient’s right to self-determination; and by
“upholding the prohibition against intentionally taking the life of terminally ill or dying
persons.”223
Although self-determination is cited by the recommendation as worthy of
protection, it is circumscribed by other considerations, as it must be ensured that “the
expressed wishes of a terminally ill or dying person with regard to particular forms of
treatment are taken into account, provided they do not violate human dignity.”224 This
provision notwithstanding, it is in subsection (c) of section 9 that the Assembly’s
opposition to euthanasia and assisted suicide is brought into boldest relief: The
Assembly recommends that the Ministers encourage States to respect and protect the
dignity of terminally ill or dying persons
c. by upholding the prohibition against intentionally taking

the life of terminally ill or dying persons, while:
i. recognising that the right to life, especially with regard
to a terminally ill or dying person, is guaranteed by the
member states, in accordance with Article 2 of the
European Convention on Human Rights which states
that "no one shall be deprived of his life intentionally";
ii. 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;
221
Id. at § 7.
222
Id. at § 9.
223
Supra note 218, at § 9(a)-(c).
224
Id. at § 9(b)(v).
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.
iii. 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.225
The Parliamentary Assembly’s interpretation of Article 2 is that the practice of euthanasia
and assisted suicide is incompatible with the ECHR. Further, the autonomy of the patient
can never represent a legal justification for the party responsible for bringing about the
death.226
The Assembly forwarded Recommendation 1418 to the Committee of Ministers.
The Ministers issued a brief interim reply on November 7, 2000.227 The reply did little
more than note the divergence in the laws of the various States relating to advance
refusals of treatment and euthanasia and indicate that the Ministers instructed the Steering
Committee on Bioethics to gather information and the Steering Committee for Human
Rights to formulate an opinion on the recommendation. A more lengthy reply was
225
Id. at § 9(c).
226
Twenty-four parliamentarians of the Council of Europe later issued Written Declaration No.
312, Legalisation of Euthanasia in Europe, Doc. 8951 (originally tabled on January 25, 2001, with
third edition published on May 14, 2001). The concern was expressed forcefully, and included an
explicit mention of the situation in the Netherlands: “the undersigned protest against every step
toward legalisation of euthanasia in Europe. This instrument of completely false care and love
leads the countries of our continent to great violations of human dignity and right to life…The
legalisation of euthanasia in the Netherlands is a first step to promote this ethical mistake around
Europe…the promotion of euthanasia infringes the European Convention of Human Rights,
especially on Article 2…Support of euthanasia evades this Convention, proposing a category of
individuals – handicapped, aged persons or persons in a coma – who are to be treated as non
human-beings. Acceptance of euthanasia leads us very easily to a new totalitarianism.” The
nationality of the members who signed is as follows: Poland (8); United Kingdom (4); Czech
Republic (3); Turkey (2); Cyprus (1); Ukraine (1); Former Yugoslav Republic of Macedonia (1);
Italy (1); Latvia (1); Hungary (1); France (1). Although a large number of representatives from
Eastern European countries supported the declaration, Gaarthuis et al. are incorrect to imply that
this declaration was the result of efforts strictly of “representatives from the new democracies of
Eastern Europe.” Remy Gaarthuis et al., Active Euthanasia and the Right to Life According to the
ECHR, Amsterdam International Law Clinic paper (March 30, 2001).
227
Adopted at the 728th meeting of the Ministers’ Deputies (October 30, 2000), Doc. 8888.
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.
forthcoming from the Committee of Ministers on April 8, 2002.228 In this document the
Ministers claimed that they were, considering the lack of case law from the Court, unable
to render an opinion on some of the more significant issues raised by the
recommendation. The reply identifies three “very complex questions of interpretation”
best left to the Court:
the question of interplay and possible conflict between the

different relevant rights and freedoms and that of the
margin of appreciation of the States Parties in finding
solutions to reconcile these rights and freedoms; the
question of the nature and the scope of positive obligations
incumbent upon States Parties and which are linked to the
effective protection of rights and freedoms provided by the
Convention; the question of whether the relevant provisions
of the Convention must be interpreted as also guaranteeing
“negative rights,” as the Court has ruled on certain Articles
of the Convention, as well as the question of whether an
individual can renounce the exercise of certain rights and
freedoms in this context . . . 229
The ambitious Recommendation 1418 of the Parliamentary Assembly did not meet its
goal of convincing the Committee of Ministers to encourage States to conform to an
interpretation of Article 2 that prohibits euthanasia and assisted suicide. The Ministers
drew attention to the fact that the European Court of Human Rights has yet to provide the
case law necessary to determine the role of Article 2 and euthanasia and assisted suicide.
The time is now ripe for the Strasbourg organs to provide some guidance in this area.
D. Strasbourg Case Law on Article 2 and Euthanasia
For many years the European Court of Human Rights had offered little assistance
in determining whether Article 2 proscribes legislation sanctioning euthanasia and
228
Adopted at the 790th meeting of the Ministers’ Deputies (March 26, 2002), Doc. 9404.
229
Supra note 218, at § 11.
51
.
assisted suicide.230 However, the recent judgment in Pretty v. The United Kingdom,
while not offering a definitive answer to this question, does indicate that the Court
considers the interpretation offered in Recommendation 1418 (1999) as worthy of
endorsement. 231
Prior to Pretty, the Strasbourg organs had a few occasions to visit issues of at least
tangential relevance to the question of the role of Article 2. In Widmer v. Switzerland232
the Commission took up the question of whether Article 2 requires States to enact
legislation making passive euthanasia punishable by law.233 The petitioner claimed that
Switzerland, for its failure to make passive euthanasia illegal, was in violation of the
Article. The Commission found that although the Swiss legislature did not outlaw
passive euthanasia, it did provide for criminal liability in cases of death caused by
negligence. This was enough to prevent a finding of contravention of Article 2. Widmer
did not directly address whether States are under a duty to protect individuals against
passive euthanasia per se.234
The question of whether the State is obliged under Article 2 to make reasonable
efforts to prevent individuals in its custody from committing suicide was raised in
Keenan v. United Kingdom.235 The applicant claimed that the United Kingdom’s failure
to take appropriate steps to protect the life of her deceased son, who had suffered from a
mental illness and died of suicide while in prison, was a violation of the article.236 The
230
Remy Gaarthuis et al., supra note 226, at 11, (most Article 2 decisions have been made by the
Commission instead of the Court. )
231
2346/02 Eur. Ct. H.R. (Fourth Section)(April 29, 2002), available at http://www.echr.coe.int.
232
20527/92 (1993)(unreported); Discussed in Gaarthuis et al., supra note 226, at 14-15.
233
“Passive euthanasia” is the term used to refer to abstaining from life-sustaining treatments.
234
See Gaarthuis et al., supra note 226, at 15.
235
Keenan v. United Kingdom, 27229/95 Eur. Ct. H.R. (Third Section) (April 3, 2001).
236
Id.at 956. Petitioner submitted the need to take appropriate steps, which include the training and
instruction of State agents. Petitioner further submitted that certain classes of individuals in custody (i.e.
52
.
United Kingdom argued in response that any duty to protect an individual from himself
would be inconsistent with the norms of autonomy and individual dignity that underlie
the ECHR.237 The Court began its analysis by noting that Article 2 not only requires
States to refrain from unlawfully taking life, but also requires States to establish
appropriate safeguards to protect the lives of all within its jurisdiction.238 This duty can
be conceived in two ways:
primary duty on the state to secure the right to life by

putting in place effective criminal law provisions to deter
the commission of offences against the person backed up
by law enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions.
. . . a positive obligation on the authorities to take
preventive operational measures to protect an individual
whose life is at risk from the criminal acts of another
individual.239
Recognizing that the latter obligation to establish operational measures that preserve life
could be interpreted so broadly as to “impose an impossible or disproportionate burden”
on State authorities, the Court noted that in order for a positive obligation to arise:
it must be established that the authorities knew or ought to

have known at the time of the existence of a real and
immediate risk to the life of an identified individual from
the criminal acts of a third party and that they failed to take
measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk.240
vulnerable persons such as children or the mentally disturbed) require the State to act with a heightened
standard of vigilance.
237
Id. at 957. This is an interesting instance of a State masking its self-interest (i.e., a cost savings from
extra expenses needed to protect some individuals from themselves) with lofty language of “autonomy”
and “individual dignity.”
238
Id., citing L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of judgments and decisions
1998-III, p. 1403, § 36.
239
Id., citing Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, § 115.
240
Kennan, 27229/95 Eur. Ct. H.R. at 958, citing Osman v. the United Kingdom judgment of 28 October
1998, Reports 1998-VIII, § 116.
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.
The judgment of the Court was that the prison authorities did all that was reasonably
expected of them in light of the circumstances; there was no violation of Article 2 in this
case.241 Although the issue is somewhat muddled by the facts of the case (i.e., the
individual who committed suicide was suffering from a mental disease), Keenan indicates
that States may be obligated in some situations to take measures aimed at preventing an
individual from committing suicide. Inasmuch as this principal can be gleaned from the
case, it represents a preference for the right to life over an unfettered right to individual
autonomy.
The judgment of the European Court of Human Rights in Pretty signals a further
development in the case law; it is a development which may eventually prove fatal for the
new Dutch law.242 The applicant in Pretty was a woman who wished to obtain a
guarantee or undertaking from the U.K. authorities that her husband would not be
prosecuted for assisting in her suicide, which she desired.243 She claimed that allowing
her to be assisted in suicide would not violate Article 2.244 She attempted to buttress this
claim with the observation that were this the case, the Contracting States in which
assisted suicide is lawful would be in violation of the article.245 It was further argued that
the article protects the right to life and not life itself, so as to be directed toward
protection of individuals from third parties, not from themselves.246 The petitioner also
submitted that the right to life imported a corollary right to die, a right to choose not to go
on living. Finally, the applicant distinguished Keenan by noting that the individual in
241
Id.at 961.
242
Pretty, 2346/02 Eur. Ct. H.R. at 806.
243
Id. at 807.
244
Id. at 808.
245
Id. at 823.
246
Id.
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.
that case was in need of protection from himself only because he lacked the capacity to
make a rational decision to end his own life.247
The Court was not persuaded that the positive right to life enshrined in Article 2
could be interpreted as bearing a “negative aspect.”248 Specifically,
Article 2 cannot, without a distortion of language, be

interpreted as conferring the diametrically opposite right,
namely a right to die; nor can it create a right to self-
determination in the sense of conferring on an individual
the entitlement to choose death rather than life.249
The Court indicated that this decision against the recognition of a right to die is
confirmed by the view expressed by the Parliamentary Assembly in Recommendation
1418 (1999).250 Finally, the fact that Contracting States might currently permit assisted
suicide was of no concern to the Court, as they were not party to the present action.251
Jurisdictional considerations aside, the Court also noted that even if another State’s
failure to prohibit assisted suicide was found not to violate Article 2, this would not mean
that a State such as the United Kingdom would be in breach for not allowing assisted
suicide. The United Kingdom’s refusal to waive enforcement of its law prohibiting
assisted suicide did not violate an imagined ‘right to die’ implicit in the applicant’s
Article 2 right to life. Pretty makes it very clear that the Convention’s Article 2
protection of the right to life cannot be understood in a negative sense - there is not an
ECHR Article 2 right to die.
247
Pretty, 2346/02 Eur. Ct. H.R. at 823.
248
Id. at 829-830, explaining the Court noted that the comparison to the negative aspect to the right to free
association in Article 11 (i.e., the freedom to associate with others does not imply that one can be forced to
join a group—it is a right both to associate and a right not to associate) was inapposite. Article 2, the Court
claimed, was phrased in different terms.
249
Id.
250
Id. at 830.
251
Id.
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.
Although Pretty is a decision of significance in this respect, the Court has yet to
visit the issue of whether Article 2 prohibits States from failing to effectively punish and
prevent euthanasia and assisted suicide. If, or more probably, when, this issue is
addressed, how the Court construes the nature of the right to life is likely to prove
determinative.
E. Article 2 Right to Life: Alienable or Inalienable?
The “right to life” is left undefined in the first sentence of Article 2. The next
sentence at least sheds light on how the right is violated, which is by intentionally
depriving someone of his or her life. This reading is not satisfactory to all commentators,
as some argue that there may be situations in which the right to life is not violated simply
when another person intentionally kills.252 Those who hold that the article protects not
life itself, but only the right to life can also support this perspective.253 The case of
euthanasia and assisted suicide would appear to present a more complicated case than the
typical failure to prevent the deprivation of someone’s life, as it could be argued that one
cannot be deprived of something they wish to give away. The issue is simply one of
252
Remy Gaarthuis et al., supra note 226, at 9, (this argument is usually expressed by claiming that there is
only a right to life, and not a “duty to live.” Another way of expressing the same idea is to say that Article
2 “does not contain an obligation to life”)(emphasis in original; footnote omitted). This premise coupled
with the notion that there is a right to dignity while living leads some to speak tentatively of a “right to die”
under the ECHR—a “right” explicitly rejected by the Court in the Pretty judgment. See e.g., Torkel Opsahl,
The Right to Life, in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 221 (R. St. J.
Macdonald et al. eds., 1993)(“right to a life in dignity may speak in favour also of a ‘right to die’”).
Although the Court made it clear in Pretty that no “right to die” exists under the ECHR, some flaws in the
notion of such a right are worth comment. This line of reasoning seems to assume that there is really only
one moral agent involved in euthanasia or assisted suicide; this is not the reality, as inherent in the
definition of these activities is the action of another party. It is disingenuous to ignore these other parties
and argue that the State has no duty to prevent them from acceding in the wishes of the individual. Simply,
even if there were no duty or obligation to life, it is a non sequitur to argue that the State is under no
obligation to restrain third parties. Euthanasia and assisted suicide cannot so easily be collapsed into the
category of an individual’s act of suicide.
253
Fawcett supra note 216, at 37.
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alienability.254 First, natural rights thinkers such as Locke and Blackstone have held that
some rights can be forfeited but not alienated.255 A forfeiture of right is the result of
some fault on the part of the right-holder, whereas alienation of right is by gift.256 A
common example is that one attempting to murder another forfeits his right to life to the
threatened victim (or a possible intervening third party). “A nonforfeitable right is one
that a person cannot lose through his own blundering or wrongdoing; an inalienable right
is one that a person cannot give away or dispose of through his own deliberate choice.”257
Second, there is a distinction between alienating and annulling a right. A right which
may be annulled is one that is indefeasible—it cannot be taken without consent. By
contrast, an inalienable right cannot be made void even when the possessor of the right
consents. Finally, Feinberg differentiates between waiving the ability to exercise a right
one still possesses and relinquishing possession of the right itself.258 Operating from the
premise that it is the right which is inalienable and not the object of the right itself (i.e.,
life), Feinberg argues that the right to life is a “discretionary right.”259 According to the
discretionary-right view, “declining to exercise” and “waiving” allows for a right holder
that never relinquishes the right itself, which is inalienable.260
It does not follow from the inalienablility of the right to

life, that I may not decline to exercise it positively or that I
cannot waive it (by releasing others from their duties not to
kill me or let me die) if I choose. If I decline to exercise the
254
JOEL FEINBERG, RIGHTS, JUSTICE, AND THE BOUNDS OF LIBERTY 238-246 (1980)(providing a discussion
of how the concept of alienability can be understood by distinguishing similar terms). For a discussion of
some of the linguistic issues surrounding the idea of inalienability at the time of the signing of the
American Declaration of Independence, see B.A. RICHARDS, Inalienable Rights: Recent Criticisms and Old
Doctrine, 29 PHILOSOPHY AND PHENOMENOLOGICAL RESEARCH 391, 398 n.31 (1969).
255
FEINBERG, at 239.
256
Id.
257
Id. at 240.
258
Id. at 243.
259
Id. at 243.
260
FEINBERG, at 243.
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right in a positive way or else waive it, then it is my life

that I alienate, not my right to life.”261
Whether or not the Dutch law exempting physicians from criminal liability for the
performance of euthanasia or assisted suicide according to the requirements of due care
conflicts with Article 2 hinges primarily on how one conceives the issue of the
alienability of the right to life.
If the right to life is indeed alienable, then there is presumably no violation of this
right secured by Article 2 if one freely and voluntarily waives it. The language of Article
2 requires that the victim be “deprived” of his life. Operating from the alienability
premise, giving away the right to one’s life is no different in principal than any other
contractual waiver of right. It would border on the absurd to claim that after making an
intelligent and free waiver of a contractual right the party now without the right in
question has somehow been “deprived” of it. Individuals who consent to having a doctor
end their life or assist in their suicide, according to this reading, were by no means
deprived of their right to life. Further, if the right to life were interpreted as alienable, it
would create a situation in which the individual could balance other rights against the
right to life.262 One right often mentioned in this context is the right to be free from
inhumane and degrading treatment of ECHR Article 3.263 This situation, in which the
261
Id.
262
See supra note 8. This balancing by the individual is obviously not possible in the case of infants or
adults who loose the ability to express an opinion on the matter and have not previously made their
intentions known. In such a case some other actor(s) must perform the balancing test for the individual. It
is at this point where it is inevitable that subjective definitions of “inhumane and degrading” and so-called
“quality of life” judgments are relied upon as a justification for the lack of the voluntariness component.
263
P. VAN DIJK & G.J.H. VAN HOOF, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN
RIGHTS 220-21 (2d ed. 1990)(noting the significance of the question of whether the right to life is alienable
in connection with other rights).
In fact, the value of the life to be protected must be weighed against other rights of the person in
question, particularly his right, laid down in Article 3, to be protected from inhumane and
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right to life is viewed as alienable, relieves the State of some of the vigilance otherwise
normally required to protect the right to life, as each individual is delegated the
responsibility to protect their own right to life in the field of euthanasia and assisted
suicide and conduct their own balancing tests regarding other rights. 264 Proponents of
the Dutch law’s validity under the ECHR must rely on the free-alienability conception of
the right to life.265
The validity of the law under Article 2 is quite doubtful if the right to life is a
truly inalienable and non-discretionary or mandatory right. An inalienable right is one
that is not susceptible to transfer or waiver. Obviously, this portrayal of the right
removes any ability to claim that the individual was not really “deprived” of anything.
The inalienability view holds that even where an individual appears to freely, voluntarily
and knowingly request the violation of his right to life, there has nevertheless been a
transgression of his right to life. This understanding clearly puts limits on the extent to
degrading treatment. Whether the will of the person is decisive in such a case depends on whether
the right to life is or is not to be regarded as inalienable.
Another right that might be conceived of by some as worthy of being balanced against the right to life is the
right to privacy of ECHR Article 8.
264
In this context “protect” obviously does not mean the same level of protection that the State should
provide in a situation in which it is understood that the right to life is inalienable. Essentially, the
individual’s only protection in a system that adheres to the view that the right is alienable is to be certain
that any request for euthanasia or assisted suicide truly is the desire of their heart; the waiver, once made, is
tragically irreversible. Presumably, under the Dutch system one could be reasonably certain that persistent
and notorious attempts to prevent future waiver-by-proxy (i.e., so called situations of ‘termination of life
without explicit request’) might be another way an individual could protect his right to life under the
alienable conception. Such attempts would include advance directives making one’s wishes clear that such
treatment in the future shall not be an option. Obviously, some classes of individuals, such as infants, are
not capable of making such efforts to protect their lives.
265
See e.g., Feinberg, supra note 254, at 243. However, they are unlikely to use the same language. Some
proponents of an individual’s right to elect euthanasia or assisted suicide claim to adhere to the
inalienability of the right to life but not the object of the right itself, which can be alienated. Opposed to
this camp of individuals who hold the discretionary right view are those who think the inalienable right to
life is a so-called mandatory right: a right in which one has no lawful discretion regarding whether to
exercise the right.
59
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which individual autonomy is determinative—there are some decisions that no moral
agents are capable or authorized to make.
The Grand Chamber of the European Court of Human Rights has endorsed the
view that the right to life is inalienable.266 The Court considered the right to life in light
of three international instruments read together: Article 3 of the Universal Declaration on
Human Rights (“UDHR”), Article 6 of the International Covenant on Civil and Political
Rights (“ICCPR”), and ECHR Article 2.267 Reading these provisions together, the Court
concluded “the convergence of the above-mentioned instruments is significant: it
indicates that the right to life is an inalienable attribute of human beings and forms the
supreme value in the hierarchy of human rights.”268 Although it did not specifically hold
that the right to life is inalienable, the Court did characterize it as an “inalienable attribute
of human beings.”269 There would appear to be no appreciable difference between these
two characterizations.270 Additionally, the characterization of the right to life as the
pinnacle of the hierarchy of human rights further exposes the inconsistencies in the
alienability standpoint. If the right to life really is regnant, how could one possibly waive
his right to life and not be allowed to waive any one of a number of derivative rights?271
266
Streletz, Kessler and Krenz v. Germany, nos. 34044/96, 35532/97 and 44801/98 Eur. Ct. H.R. (2001),
archived at http://www.echr.coe.int/Eng/Judgments.htm.
267
Id.
268
Id.
269
Id.
270
See e.g., PETER SINGER, PRACTICAL ETHICS 191 (2d ed. 1993); Van Dijk & van Hoof, supra note 263, at
221 (claiming that there is a dividing line between “human” and “merely vegetative” life). However, the
Court’s language would allow for someone who holds that individuals are capable of loosing their status as
a ‘human being’ to argue that a creature who ceases to be (or has not yet become) a person ceases to be a
holder of an inalienable right, and is therefore liable to have his life taken with or without his consent.
Such a consequentialist reading would presumably assume that membership in the human community is
contingent on the individual’s ability to exhibit signs of personhood (e.g., rationality or consciousness).
Peter Singer argues that the killing of a disabled infant is not always morally wrong, as such individuals are
without attributes of personhood.
271
An example of a non-waivable human right is the prohibition being held in slavery or servitude found in
ECHR Article 4 (1). Presumably, an individual cannot freely contract himself into slavery under the
60
.
Although factually unrelated to cases of euthanasia and assisted suicide, the Court in
Streletz lends strong support to the notion that the right to life is inalienable.272 If, or
more properly, when a case arises in the future regarding a Contracting State’s failure to
adequately protect the right to life of someone who had been or is in danger of being
euthanized or assisted in suicide, such a State is likely to be found in violation of Article
2, as the individual is incapable of opting out of this right.273
F. Enforcement of Article 2
How is this right secured and enforced? Unless the ECHR provides a means of
redress, the inalienable right to life under Article 2 will prove most inconsequential.
Several different types of parties can apply to the European Court of Human Rights for
relief from alleged breaches of the Convention. Another contracting State may simply
refer an alleged breach to the Court for consideration.274 Additionally, the Court may
receive applications from “any person, non-governmental organisation or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties
Convention. See Jacobs, supra note 214, at 44-45 (arguing that the element of consent cannot make lawful
slavery or involuntary servitude otherwise prohibited by Article 4(1)). Some guidance about the issue of
whether one can validly contract himself into bondage is given by the U.N. Supplementary Convention on
Slavery (1956), which claimed: “It should not be possible for any person to contract himself into bondage.”
Fawcett, supra note 216, at 63 (citing U.N. Doc. A/2929 p. 33). In the Vagrancy Cases, one of the claims
brought by the applicants was a violation of their Article 5(1) right not to be deprived of their liberty. The
Commission noted that the fact that the applicants allegedly voluntarily relinquished their liberty was not
fatal to their application. “It is of the opinion that according to the generally recognised principles of law
personal liberty is an inalienable right which a person cannot validly abandon.” Report of the European
Commission of Human Rights in De Wilde, Ooms and Versyp Cases (“Vagrancy” Cases), Publications of
the Court, Series B, at 91.
272
Supra note 266.
273
See J.G. MERRILS & A.H. ROBERTSON, HUMAN RIGHTS IN EUROPE: A STUDY OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 34 (4th ed. 2001)(noting “active euthanasia, that is intervention to end
life, without a person’s consent would be very difficult to justify [under Article 2]”). Even if the
Strasbourg organs reverse their course and adopt the position that the right to life is alienable, the Dutch
law is still in jeopardy to the extent it allows for the continuation of “termination of life without explicit
request.”
274
ECHR Art. 33.
61
.
of the rights set forth in the Convention or protocols thereto.”275 If the Court were to
accept an application challenging the validity of the new Dutch law legalizing euthanasia
and assisted suicide, it might have to construe loosely the requirement that non-State
challengers be a “victim” of the alleged breach.276 However, any one of the other forty-
three Council of Europe Member States would have standing to bring a challenge on their
own initiative. The Dutch Review Procedures Act is susceptible to challenges under
Article 2 by both individuals and Contracting States. If an application challenging the
Dutch law is deemed admissible, and the trajectory of Pretty and the dicta in Streletz are
any guide, the European Court of Human Rights may very well find the Netherlands in
contravention to Article 2 of the ECHR.
IV. CONCLUSION
Although the Netherlands did not demonstrate the interest in legalizing euthanasia
and assisted suicide that other nations did in the early decades of the twentieth century,
by the last quarter of the century such practices had achieved a status of de facto legality.
This de facto legality came to be through a series of judicially created exceptions to the
Criminal Code’s explicit prohibitions of euthanasia and assisted suicide and the
prosecutorial policy of toleration. The Termination of Life on Request and Assisted
Suicide (Review Procedures) Act that was approved by Parliament in 2001 is little more
275
ECHR Art. 34; ECHR Art. 35(1)(requires that in order for an application to be admissible, all domestic
remedies must be exhausted).
276
Obviously, a “person” who is a “victim” of a State’s failure to protect his right to life cannot himself
bring suit post mortem. Standing might be easier to demonstrate for a group of individuals who as a class
were susceptible to having their life ended intentionally. It is not certain how the Court might dispose of
the fact that, as proponents of the Dutch legislation would be quick to point out, the Dutch scheme
normally requires the consent of the patient, thus damaging any class claim of unavoidable injury. Suit
might be brought on behalf of a comatose patient in jeopardy of suffering the fate of “termination of life
without explicit request.” Additionally, there is the possibility of surviving family members initiating an
action as was done in the case of Keenan.
62
.
than legislative assent to these earlier developments. With the amendments to the
Criminal Code contained in the Act, euthanasia and assisted suicide performed under the
conditions of due care are no longer subject to criminal sanction in the Netherlands.
Questions remain whether this development will be unaffected by the fact that the
Netherlands is a Contracting State to the ECHR, Article 2 of which contains a protection
of the right to life. The way in which the Strasbourg organs construe the nature of the
right to life—alienable or inalienable—should prove determinative. In Pretty the
European Court of Human Rights announced that the article cannot be understood as
securing a corollary “right to die”—a right necessary to the discretionary-right view.277
Additionally, dicta in Streletz indicates the Court’s inclination to adopt the idea that the
right to life is inalienable. To the extent that these signs are indicative of a move in
ECHR jurisprudence toward the conception of the right to life as an inalienable and
mandatory right, the Dutch Act legalizing euthanasia and assisted suicide is likely to be
found by the Court as being in violation of ECHR Article 2.
277
See supra note 265. Some of those who purport to hold to the inalienablility position adhere to the view
that the right to life is a discretionary right (although the right to life cannot be waived, the exercise of it is
up to the right holder’s discretion; this discretion necessitates a “right to die”). The debate is thus among
two camps who both claim the inalienability position: those who advocate a discretionary right to life and
those who assert that the right to life is mandatory. The discretionary interpretation goes a long way to
undermine the actual strength of any “inalienable” right to life. This group of discretionary-right
proponents may actually be better categorized as advocating what in practice is the alienable-right view.
63

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THE LEGALIZATION OF EUTHANASIA IN THE NETHERLANDS

On April 1, 2002, legislation regarding the practice of euthanasia and assisted

achieved a status of de facto legality through Dutch jurisprudence and prosecutorial

policy. Even though it is in many respects simply a codification of past jurisprudential

development, the law is significant inasmuch as it is a creature of politics. Additionally,

the Dutch act is likely to exercise considerable influence internationally as other

jurisdictions are likely to use it as a guide.3

addressed, some discussion of the terminology involved is necessary.

“Euthanasia” [euthanasie], in its strictest sense, is the intentional killing by a

physician of a patient requesting death.4 According to prevailing opinion in the

individuals incapable of manifesting a request.6 These deaths, lacking the

voluntariness/request component, are classified in the literature as “termination of life

without an explicit request,” and shall be considered below.

Another category of activity leading to death recognized in Dutch law is

Some deaths administered by physicians in the Netherlands are made without a

request” [levensbeëindiging zonder uitdrukkelijk verzoek]. This most controversial form

though an express will to the contrary is known. “Non-voluntary euthanasia” is a

category of “termination of life without an explicit request” into two forms of

“euthanasia” is necessary, even though the Dutch definition of “euthanasia” precludes

constitutive element of what is called “euthanasia” in the Netherlands. Although

proponents of euthanasia prize voluntariness, the existence of this category of life

termination (which is readily conceded by proponents of euthanasia), demonstrates that it

the conception of autonomy which Kant understood, and which itself is

In light of these considerations, we can see that there is no right to

DAVID S. ODERBERG, APPLIED ETHICS: A NON-CONSEQUENTIALIST APPROACH 55, 57-58, 60 (2000).

levenseinde] (MDEL). Besides including euthanasia, assisted suicide, termination of life

treatment in instances when it is “medically futile” [medisch zinloos]. The former is

and practice of euthanasia in the Netherlands.

I. A HISTORY OF DUTCH EUTHANASIA LAW AND PRACTICE

A. The Criminal Code of 1886

The Criminal Code [Wetboek van Strafrecht] of 1886 replaced an older

cases of assisted suicide. Article 294 provided:

A person who intentionally incites another to commit

prohibited along with euthanasia.

He who complies with another person’s explicit and serious wish to

Supra note 5, at 325.

commits an offense as a result of a force he could not be expected to resist is not

violation of Articles 293 and 294 from criminal liability.

B. The Pre-War Period

prior to the end of the Second World War.

could be attributable to either a nascent prosecutorial policy against pursuing such

convictions, or simply a relative lack of these life-terminating activities actually

interest in euthanasia. Even before the ascendancy of National Socialism—from the

1920s onwards—the medical community of her German neighbor had been

contemplating and engaging in euthanizing “life unworthy of life” [Lebensunwerten

C. The Case Law

sentencing generated very little commentary or controversy.26

indicating the intention to further public debate on the issue.30

2. Postma: Adoption of Conditions of Average Medical Practice

Association [Koninklijke Nederlandse Maatschappij Ter Bevordering Der Geneeskunst

previously rarely utilized, “euthanasia,” was increasingly used in public discourse.

3. Wertheim: Conditions to Avoid Criminal Liability and Prosecutorial Policy

In 1981 charges were brought against Ms. Wertheim, a euthanasia activist

accused of assisting in the death of a 67 year-old woman suffering from various

to handle the mental and physical burden of prison life.40

national College of Procurators-General [College van Procureurs-Generaal] decided that

determination of whether to prosecute. It announced that the guidelines it would apply in

in Postma and Wertheim.41 This intervention of the College of Procurators-General was a