Cite as:  Jonathan T. Smies, The Legalization of Euthanasia in the Netherlands,  7 Gonz. J. Int’l L. (2003-04), available at http://www.gonzagajil.org/.

Citations linked: 26

 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]

            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.

            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 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 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 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.

            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 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. 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 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 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 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 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]

            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 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]  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 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.

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 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 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]

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] 

            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 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 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]  

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 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 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 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 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 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]

            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 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 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 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,” 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]

            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 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].