ABSTRACT
Euthanasia is divided into active and passive, depending on the action made against the individual. Active euthanasia is defined as ending the patient’s life with an action, whereas passive euthanasia is performed by inaction; allowing the death of the patient. Although “the individual’s right to refuse treatment” is the legal basis of passive euthanasia, it seems that this right is not given to exceptional cases (for example; Penal institutions). Also, when we examine from the perspective of a doctor, the “right of the conscientious objection” comes to the fore.
“Is there such a thing as the right to die?”, “If there is, will it overwrite the right to live?”, “Can a person renounce his/her right to live?” the source of these questions are frequently discussed both legally, philosophically and religiously. The practice of euthanasia, which is implemented countless times in countries such as the Netherlands and Belgium and clearly prohibited by law in Türkiye as a crime of “deliberate murder”, will be explained superficially within the scope of this article with its humanitarian and legal bases.
In this article; the practice of euthanasia, which is implemented countless times in countries such as the Netherlands and Belgium and clearly prohibited by law in Türkiye as a crime of “deliberate murder”, will be explained superficially within the scope of this article with its humanitarian and legal bases.
I. INTRODUCTION
The practice of euthanasia, which is legally prohibited in several countries in the world, partially prohibited in some other countries and permitted in some parts of the world; is the subject of various discussions in the fields of constitutional law, criminal law and medical law in Türkiye. The philosophical and ethical view of euthanasia is related to the doctrine of “natural law”. The basis of the doctrine of natural law is that there is an immutable legal norm that is always valid all over the world, superior to positive law rules, and these norms can be determined by reason1. Accordingly, a person will be free to decide on his/ her own life with his/ her own mind. When it comes to euthanasia, another concept comes to the fore from a moral point of view; “individual autonomy”. Individual autonomy argues that an individual should make his/her own decisions autonomously without being under any pressure. Within all these branches and perspectives; while some people argue that euthanasia is an absolutely unacceptable act, others, on the other, hand line up with the liberty of euthanasia, since a human must be able to determine his/ her own life since he/ she is an individual before anything else. An abstainer third group of people, like me, discuss that the implementation can vary from event to event and from person to person.
II. THE CONCEPT OF EUTHANASIA AND THE RIGHT TO DIE
The word “Euthanasia” is derived from the Greek roots of “eue” (beautiful) and “tanasium” (death). In Turkish the concept of “euthanasia” is defined as the “right to die” in the dictionary of the Turkish Language Society2. In practice; it can be defined as killing, helping or accelerating the death of a living creature that has an incurable disease, is about to end its life or is suffering a lot. For example; the ‘voluntary’ termination of the life of a patient who is considered to be on his/ her deathbed and who is in serious pain is considered euthanasia. It should be emphasized that there are two types of euthanasia, namely “active euthanasia” and “passive euthanasia”. While passive euthanasia is legal in some countries with certain conditions, active euthanasia is prohibited in many others.
A. Active Euthanasia
To make the patient, who wants to die, reach his/ her goal by applying an active intervention is defined as active euthanasia3. To give an example; if a patient, who wants to die, comes to a medical centre that can perform this procedure and declares that he/ she wants to end his/ her life, the doctors givethis patient an injection and let him/ her die without pain. The separations of active euthanasia from concepts of suicide or assisted suicide is that this practice is not done by the patient himself/ herself4. Since it was carried out by someone else, active euthanasia is considered as a crime of deliberate killing in many countries. In fact, in Türkiye, some opinions in the doctrine argue that it is a crime of “designed murder”. Although there is no clear regulation in this context in the Turkish Penal Code, Article 13 of the Patient Rights Regulation expressly prohibits euthanasia by stating that “Euthanasia is prohibited. The right to live cannot be waived for medical reasons or by any means whatsoever. No one’s life can be ended, even if he/ she or someone else demands it”.
B. Passive Euthanasia
Unlike active euthanasia, in passive euthanasia, which is defined as “withdrawal of treatment support tools”5 the patient is left to die by not carrying out the treatment or procedure that should be applied to patient. Accordingly, the patient’s death wish is carried out by not applying the treatment that should be applied to him/ her, by displaying a passive stance in the face of situation. For example; it is passive euthanasia when a terminal cancer patient who is predicted to be cured by chemotherapy, refuses treatment and doctors do not perform the treatment and leave the patient to die. In this context, Article 14 of Patient’s Rights Regulation aims to prevent passive euthanasia in Turkish Law by stating, “Staff shall show the medical care required by the patient’s condition. Even if it is not possible to save the patient’s life or preserve his/her health, it is imperative to try to reduce or relieve his/her suffering.”
Although passive euthanasia is defined as not applying treatment with the consent of the patient, unfortunately it does not always take place with the consent of the person in practice. For example, if the heart of a patient in the intensive care unit is about to stop, and doctors do not see any chance of survival, so they do not intervene; it is also an example of passive euthanasia and as can be seen, the patient would not be able determine his/ her own right to live.
In Article 25 of the Patient Rights Regulation, which explicitly prohibits euthanasia, an open door is left for passive euthanasia. This article is the basis of “the patients right to refuse treatment” in the form of “except in cases where it is legally obligatory and the responsibility of the negative consequences that may arise belongs to the patient; the patient has the right to refuse or ask for the treatment to stop, which is planned or being applied to him/her. In this case, the consequences of not applying the treatment should be explained to the patient or his/her legal representatives or relatives and a written document showing this should be obtained”. In the doctrine, it comes to the fore that the physician, who does not oppose this request, may not be punished6.
It should be emphasized that although the individual has the “right to refuse treatment”, this right is not given to the individual in exceptional circumstances. In accordance to Article 82 of the Law on the Execution of Penalties and Security Measures; if the convicts in penitentiary institutions go on a hunger strike or death fast by refusing the food and drink given to them and if the doctors consider that life of the convicts is in danger or their consciousness is impaired, a treatment is administered regardless of their wishes. According to the same article, in case of a situation where convicts with health problems refuse examination and retreatment, which may endanger their own life or lives of other convicts with health problems, are treated regardless of their wishes7.
III. DOCTORS’ RIGHT TO WITHDRAW FROM SERVICE
“Zweig, who narrated a physician’s scrutiny in The Amok Runner, also wanted the reader to answer that controversial question; Was it really possible to withdraw the physician from service?”8. In accordance with the Medical Professional Ethics Rules; if the physician decides that he/ she cannot apply his/ her medical knowledge properly in a situation and if it is possible for the patient to apply to another physician, he/ she has the right not to apply the treatment or to discontinue it9. Therefore, in my opinion, this rule can be applied by analogy to a patient who requests passive euthanasia, and thus the physician’s conscientious objection to euthanasia becomes possible.
IV. THE RIGHT TO LIVE AND THERIGHT TO DIE WITH DIGNITY
Article 2/1 of the European Convention on Human Rights regulates that, “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. This article expressly prohibits euthanasia. Article 5 of the Lisbon Declaration, published by the World Medical Association in 1981, is in the same direction and states this in the form of, “The patient has the right to die with dignity”.
Article 17 of the 1982 Constitution of the Republic of Türkiye law no. 2709, titled Immunity, Material and spiritual existence of the person: “Everyone has the right to live, to protect and develop their material and spiritual existence. Except for medical obligations and the cases written in the law, the physical integrity of the person cannot be touched; cannot be subjected to scientific and medical experiments without his consent”. According to this the “right to life” is an inviolable right. According to the anti-euthanasia point of view in the doctrine, even the person himself/ herself cannot touch this right. Article 23 of the Turkish Civil Code states, “No one can give up their rights and capacity to have rights, even partially”. Therefore, according to Turkish laws, a person does not have the right to determine his/her own life. In this context, it will come to the fore that, according to Turkish Law, the consent given by the person for euthanasia is also considered invalid10.
V. EUTHANASIA IN TURKISH CRIMINAL LAW
There is no explicit regulation on euthanasia in the Turkish Penal Code. However, under the title of Reasons Eliminating or Reducing Criminal Liability, the law which considers the “consent of the person concerned” as a reason for compliance and regulates that the person will not be punished for the act committed by obtaining consent11, clearly states that this rule will not be applied in the case of “a right that cannot be exercised in absolute terms”12. As explained above, according to Turkish law, a person cannot dispose his/ her right to live13. Therefore, it can be concluded that euthanasia is prohibited in the Turkish Penal Code. As a matter of fact, it is clear that there is a unity of doctrine in Türkiye that active euthanasia will constitute a “crime of wilful murder”14. However, we can say that there is no consensus in the doctrine about the severity of the sentence.
Although a group of people in doctrine argue that passive euthanasia, which is result of negligent act, is a crime of voluntary manslaughter15. In my opinion, in such a case; it can be said that the physician does not have criminal responsibility in accordance with “the patient’s right to refuse or request the treatment to be stopped, which is planned or to be administered to him/ her”16, as it is regulated in the Patient Rights Regulation. However, in such a case, the patient’s consent must be clearly demonstrated and the situation must be subject to strict requirements; otherwise, there is a possibility of abuse of the situation.
VI. EUTHANASIAIN THE WORLD
While euthanasia is strictly prohibited in some countries, it can be applied by court decisions or by the physician’s own approval in some countries. In some countries, passive euthanasia is frequently practiced, while active euthanasia is penalized. When we look at the world in terms of whether euthanasia is enforceable and the penalties to be faced when it is applied, in Türkiye and France, euthanasia is considered as a crime of “deliberate killing”. In countries such as Portugal, Germany and Italy, it is not permitted, but under the headings of “killing by consent” and “killing by request”, relatively lighter sentences are given as a result (for example the 20 years sentence was reduced to 3 years in the Portuguese Penal Code (art. 206) a sentence of 6 months-5 years is stipulated, while in Italian Penal Code (art. 579) a sentence of 6-15 years is given.). In the Netherlands, Switzerland, Belgium, Luxembourg and Spain, we see that euthanasia is not punishable if it is carried out under certain conditions17.
The Netherlands, which is the first country that comes to mind when euthanasia is mentioned, brought the concept of “euthanasia” to the stage of history. After the first practice, a statement was published by the Royal Netherlands Medical Association and limits of euthanasia were narrowed. According to this statement, patient must request euthanasia and the patient’s disease must be incurable and the physician should consult another physician when deciding whether to apply or not18. Even today, it is said that the Netherlands will make euthanasia legal for children who have a terminal illness at the age of 1-1219. In Belgium, euthanasia has been available for persons over 18 years of age who have an intolerable and incurable disease, as of 200220. In France, although euthanasia is considered a crime of “deliberate killing”, it seems that since 2016, terminally ill patients have been allowed to sleep21.
VII. CONCLUSION
In my opinion, within the scope of this study, it is not possible for us to consider euthanasia as a whole, with all it’s legal, philosophical, moral, religious and conscientious consequences. While even the perspectives of states on euthanasia are changing day by day, it would be unfair to expect people’s perspectives to remain constant in one opinion.
As I tried to explain above, euthanasia is divided into two, as active and passive. In active euthanasia the patient’s life is terminated by an “action”, while in passive euthanasia there is an “inaction”. Although all kinds of euthanasia are prohibited in our legal system, from my perspective, there are legal gaps in terms of passive euthanasia.
My opinion on active euthanasia can be considered as “deliberate killing”, but it must be evaluated in each case separately and a reduction in punishment may be possible in several cases. In the case of passive euthanasia; the patient’s consent should be obtained clearly without leaving any room for doubt, and the patient’s “decision making capacity” should be evaluated by experts. However, in any case, the patient should really have an incurable disease and should not demand euthanasia only in state of crisis.
BIBLIOGRAPHY
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FOOTNOTE
1 Hatice İlhan, Ötenazi Kavramının Ahlak Felsefesi Açısından İncelenmesi, İstanbul Üniversitesi Sosyal Bilimler Enstitüsü Felsefe ve Din Bilimleri Anabilim Dalı Din Felsefesi Bilim Dalı Yüksek Lisans Tezi, İstanbul 2011, p. 57.
2 Türk Dil Kurumu, Güncel Türkçe Sözlük, (Date Accessed 06.06.2022), http://www.tdk.gov.tr.
3 Özge Demirörs/ Sevinç Arslan Hızal, Türk Ceza Hukuku Açısından Ötanazi, Ankara Üniversitesi Hukuk Fakültesi Dergisi, V. 65, Iss. 4, 2016, p. 1488.
4 Mehmet Emin Artuk/ Caner Yenidünya, “Ötanazi”, in: Hukuk ve Etik Boyutuyla Ötanazi, ed. Nur Centel, 12 Levha Yayınları, İstanbul 2011, p. 116.
5 Durmuş Tezcan/ Mustafa Ruhan Erdem/ Murat Önok, Teorik ve Pratik Ceza Özel Hukuku, 19. Edition, Ankara 2021, p. 200
6 Tezcan/ Erdem/ Önok, p. 201.
7 Law No. 5275 on the Execution of Criminal and Security Measures, Art. 82.
8 Gökhan Türe/ Oğuzhan Türe, Hekimin Hizmetten Çekilme Hakkı, TBB Dergisi, C. 131, Ankara 2017, p. 296.
9 Ethical Rules of the Medical Profession, Art. 25.
10 Erika Biton Serdaroğlu, Ötanazi – Ölme Hakkı, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, V. 22, Iss. 3, 2016, p. 485.
11 Turkish Penal Code no. 5237 Art. 26/2.
12 Turkish Penal Code no. 5237 Art. 26/2
13 Tezcan/ Erdem/ Önok, p. 197.
14 Tezcan/ Erdem/ Önok, p. 201.
15 Tezcan/ Erdem/ Önok, p. 201.
16 Regulation No. 23420 on Patient Rights, Art. 25.
17 Tezcan/ Erdem/ Önok, p. 199
18 Muhammed Sulu, Ötenazi Üzerine, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, V. 22, Iss. 1, 2017, p. 561.
19 https://tr.euronews.com/ What is Active, Passive Euthanasia and assistant suicide? Which European Countries have Which practices?
20 https://tr.euronews.com/ What is Active, Passive Euthanasia and assistant suicide? Which European Countries have Which practices?
21 https://tr.euronews.com/ What is Active, Passive Euthanasia and assistant suicide? Which European Countries have Which practices?
