ISSN 2451-0343

Bipolarity of regulations concerning euthanasia. Absolute prohibition in Polish system vs. expanding the limits of euthanasia acceptability, based on example of Benelux countries

Marta Krzysik

Student at Jagiellonian University



Different countries have adopted various regulations concerning decisions applying to the end of life - from absolute prohibition of euthanasia to its legality. Moreover, differences exist not only between different legislations, but also within particular national legal systems depending on the form of committing this act. Often, even in systems where there exists an absolute prohibition of active euthanasia, passive euthanasia or indirect euthanasia is at least partially accepted. Comparison of different penalty systems as far as active euthanasia is concerned shows that a great group of those introduce a formal prohibition of this type of behavior. On the other hand - Netherlands, Belgium and Luxembourg have legislation providing for homicide on demand. For this reason, models of euthanasia established in Poland and the Benelux countries will be presented as examples of extreme solutions that can create a base for discussion of comparative character. Detailed analysis of a process of transformations of a right to euthanasia in Belgium (with special emphasis on children euthanasia) will be carried out as this being a manifestation of liberal trends regarding the admissibility of "end of life on demand."

When considering legal regulations concerning euthanasia it’s necessary to develop the definition of this notion. The problem of defining euthanasia is currently the subject of nearly as fierce (and not leading to any conclusions) disputes as their moral evaluation and possible legal admissibility of this practice. However, despite the lack of a broad accepted definition, most competitive terminology proposals contain some critical common elements and divisions.1 See J. Malczewski, Z dziejów eutanazji, in: B. Chyrowicz SSpS (ed.) Eutanazja: Prawo do życia -Prawo do wolności, Lublin 2005 The legal literature divides euthanasia into passive and active. Passive (negative) euthanasiais defined as: an abandoning treatment of a treatable disease treatment in a patient afflicted by an incurable disease at the same time; a refuse (by a physician) to use extraordinary life-saving measures and using only ordinary means; discontinuation of treatment of the patient in case the patient does not wish it ; discontinuation without the consent of the patient when the doctor believes that further treatment only prolongs suffering; the absolute refusal of any intervention at the moment of dying. 2 See C. Barnard, Godne życie, godna śmierć: wybitny kardiolog o eutanazji i samobójstwie, Warsaw 1996, p. 61. Whereas, active (positive) euthanasia is an action undertaken to induce or accelerate someone's death, e.g. by administering a lethal dose ofmedicine or by other way of life deprivation. In international and comparative law the principle is abroad prohibition of active euthanasiaand any participation of a physician in the act of suicide. 3 See M. Śliwka, Prawa pacjenta w prawie polskim na tle prawnoporównawczym, Toruń 2008, p. 268. The International Covenant of Civil and Political Rights and the European Convention of Human Rights, protecting the inherent right to life, both preclude admissibility of the use of euthanasia definedas a deliberate action of a doctor in order to shorten the patient's life4 See Gałęska – Śliwka, M. Śliwka, Stan wegetatywny, eutanazja, zaniechanie uporczywej terapii, Państwo i Prawo 11 (2009) p. 17.

Prohibition of euthanasia is in force also in Poland. Its roots are in one of the basic functions of the State, which is human life and health protection. It is expressed in Article 38 of the Constitution of the Republic of Polandwhich states: "The Republic of Poland ensures legal protection of every human life"5 The Constitution Of The Republic of Poland (Dz. U. No 78 position 438, art. 38).. Active euthanasia and assistance in suicide is also prohibited by the Code of Medical Ethicswhich states in article 31: "The doctor is not allowed to practice euthanasia or assist the patient in committing suicide." Additionally, Polish criminal law in Chapter XIX of the Criminal Code, defining the scope of this protection, penalizes actions that could breach the aforesaid goods, as well as activities which could lead to situations in which those goods would be at a risk6 See O. Nawrot, Antropologia rozdziału XIX kodeksu karnego, Prawo i Medycyna 4 (2009) p. 13.. In the current Polish Criminal Code, the crime of euthanasia is encompassed by Art. 150 § 1, that is read as a repetition of Art. 150 of the Criminal Code of 19th April 1969 and Art. 227 of theCriminal Code of 11 July 1932 previously in force, respectively. The contents of those regulations differ from each other only by the height of the lower statutory minimum punishment. That shows a tendency of liberalization of the attitude to the punishment of absolute deprivation of liberty for that privileged type of homicide, lowering the minimum penalty from six to three months. 7 See R. Krajewski, Przestępstwo eutanazji w kodeksie karnym z 1997 r. , Prokuratura i Prawo 2 (2005) p. 66–67. Art. 150 of theCriminal Code provides for a person who kills a man at his demand and under the influence of sympathy for him, to be subjected to a penalty of imprisonment ranging from 3 months up to 5 years. The Polish doctrine emphasizes that we are facing the crime of euthanasia only in the situation when two conditions are met concomitantly, i.e. demand of a human being and compassion on the part of the perpetrator. 8 See D. Kowalska, Eutanazja w polskim prawie karnym a granice dopuszczalności interwencji lekarskiej, Prokuratura i Prawo 1 (2002) p. 86. The doctrine, due to the need to clarify the shape of the aforesaid premises, adopted anapproach that the demand must be unambiguous, definite, unquestionable to the receiver. Moreover, it can not take the form of a wish, requests, or consent. An implied demand or demand that is not aimed directly to the potential perpetrator is not acknowledged. It is also necessary that the demanding persondoes not act under pressure and is sound-minded at the moment of expressing the will to die. In contrast, The Supreme Court determined the forms of compassion that justify the application of Art. 150 of the Criminal Code, defining them as a perpetrator’s conviction about another man suffering so hard that causing his death would beexclusively relief and benefit for him and that those benefits could only be achieved by depriving him of life. 9 See wyrok SN z dnia 24 lutego 1936 r., II K 2240/35, Orzecznictwo Sądu Najwyższego 9 (1936) p. 336.In fact this will mainly concern terminally ill people, victims seriously injured in accidents, at risk of serious disability. Quality of life is legally irrelevant in the case of so-called euthanatic homicide (which, asit has already been emphasized, is mitigated type of homicide). It should be emphasized that special consideration of this type of homicide does not result directly from the state of health of the victim, but from the person explicitly expressed demand to give up her life (hence the name "homicide on demand") and from the perpetrator’s compassion (hence the name "hocide of compassion"). Naturally, in the literature it is widely accepted that perpetrator’s compassion for the victim is a direct result of the state of health of the latter, especially his physical and mental suffering, 10 See A. Grześkowiak, Prawo karne, Warsaw 2007, p. 281. nevertheless it does not give grounds for conclusion that the quality of victim life affects standards of its protection in this case. It is worth to side – mention that the subject of controversy is the legal classification of the act, in case when the victim declared only mental suffering but demanded euthanasia, and the perpetrator motive was compassion for the victim. In modern literature a rule is generally accepted that mental suffering can be at most a derivative of physical suffering, which can be seen in the case of the euthanatic homicide as legally relevant, and thus in situations when the victim’s suffering is only mental Art. 150§ 1 of the Criminal Code does not apply. 11 See A. Zoll in: A. Barczak-Oplustil, G. Bogdan, Z. Ćwiąkalski, M. Dąbrowska Kardas, P.Kardas, J. Majewski, J. Raglewski, M. Rodzynkiewicz, M. Szewczyk, W. Wróbel, A. Zoll (ed.), Kodeks karny. Część szczególna. Tom II. Komentarz do art. 117-277 k.k, Krakow 2006 , p. 281.However, it should be noted that the cited point of view is not a result of linguistic analysis of Art. 150§ 1 of the Criminal Code which verbalizescompassion but absolutely does not determine its causes. 12 See M. Budyn-Kulik, P. Kozłowska-Kalisz, M. Kulik, M. Mozgawa (ed.), Kodeks Karny. Komentarz Praktyczny, Krakow 2006, p. 301 Moreover, it seems that psychological distress (inability to accept a specific state) is the direct motive for such demand. 13 See O. Nawrot, Antropologia…, op. cit., p. 15-16. It is understood that euthanatic homicide is a consequence crime, and for committing it a direct intention is essential, meaning that the perpetrator’s will to cause victim's death must exist. An interpretation of the phrase “exceptional circumstances” covered in § 2 of the article under discussion is controversial because it lowers responsibility of the offender provided for in § 1 to a level of an extraordinary punishment mitigation or even waiving its impositionAccording to Marian Filar this exceptionality is to be found in the "specific quantitative escalation and intensity of general premises of euthanatic homicide”, such as very strong pressure on the doctor, specially strong compassion caused by well-developed emotional relationship between the potential perpetrator and the victim, or the range of sustained suffering. However, no matter which aspect of the problem is discussed, generalizations should not be taken nto consideration when such a delicate issue is dealt with, each case should be decided and judged individually. 14 See M. Filar, Lekarskie prawo karne, Krakow 2000, p. 325–326 The crime of Art. 150 of theCriminal Code has a broad character, despite the fact, that the perpetrator of the act is usually a physician or another medical personnel member. J. Warylewski remarks that euthanasia concerns only action, and "acts, whose aim is granting aid in suicide can not fall under Art.150 of theCriminal Code". This of course does not mean that any physician can help his patient to commit suicide, as Art. 151 of the Criminal Code states that "Whoever, by incitement or by providing assistance, induces a human to make an attempt on his own life, is subject to the penalty of deprivation of liberty for between 3 months and 5 years.". 15 See J. Warylewski, W sprawie prawnokarnego postrzegania eutanazji, Państwo i Prawo 3 (1999) p. 75. It should be agreed that Art. 151 of The Criminal Code covers a wide range of acts. However, some of them, as in the given example, are inseparable from the act of the euthanatic homicide. This shows a clear inconsistency of the legislator in the rules of criminal law regulations. As a matter of principle, the legislator regulates for a possibility not to inflict any actual responsibility for performing the act of euthanasia in its active form (if the court waives imposition of punishment), but such possibility is not envisaged as far as assistance in suicide to a suffering and terminally ill patient whose will is to end his life by means provided by his doctor is concerned. In that case, it is visible that the act entailing further-going intervention by the perpetrator is treated more leniently than the one which in a given situation may be performed exclusively in a passive way.16 See A. Marek, Prawo karne, Warsaw 2003, p. 431. It should also be noted that the quoted provisions of the Polish Criminal Code lay background for distinguishing euthanasia from so called lingering therapy. Opinions tend to vary. Sometimes both situations are interpreted as a whole, indicating that persistent treatment failure is identical with passive euthanasia. This is due to the fact that euthanatic homicidein principle, can be commited either by action or by discontinuation, which includes, inter alia, resignation from patient’s life functions support. 17 See M. Filar, Lekarskie…, op. cit. Such an approach to the subject seems to be too narrow. De lege ferenda introduction of an element differentiating cases of abandoning lingering therapy from euthanasia as a punishable criminal act (Art. 150 of the Criminal Code) and assisted suicide (art. 151 of the Criminal Code)should be considered . For if the physician is in a situation in which he is obliged to rescue patient's life, abandoning aid will be judged as unlawful and, consequently, he will be subject to criminal liability; regardless of naming it passive or active euthanasia in the form of abandoning.

In this case, the legal norm envisaging protection of human life gets infringed. However, if the doctor finds himself in a situation when he is not obliged to save patient life, abandoning aid can not be judged as an unlawful behavior and, consequently, it will not be punished. The doctor did not violate legal standards obliging him to protect human life. It is worth noting that human life as seen in the light of the Criminal Code axiology is not a value that could be graded, and it is not only a value belonging to the particular individual interested in its protection, but also an objective social value. The mentioned meaning of legal value, which is human life, was distinctively emphasized in already analyzed Art.150 and Art.151 of the Criminal Code. In case of euthanatic homicide we deal with a situation in which the life of a patient is not a value deserving protection any more, hence his from other person in aiding him to end his life. So, maintaining sanctions for euthanasia murder may serve as a proof for the fact that the legislator recognizes value of human life as important value from the public point of view, even in a situation when its protection from the point of view of a "bearer of this value " - a specific individual - is undesirable . In other words, in the light of Chapter XIX’s anthropology, an individual has no right to freely dispose of his own life as far as its unnatural ending is concerned. 18 See O. Nawrot, Antropologia…, op. cit., p. 17-18. Life is a value that transcends beyond its individuality and becomes a social value. Despite these general principles in Polish law the subject of the limits of human life protection has not been defined clearly and the Polish law system should be criticized for it. Additionally, Polish legislation for many years has not reacted to the problems connected with the end of human life, only casually and fragmentarily referring to them; for instance, in Art. 20 of the Act on Patient Rights and the Commissioner for Patients’ Rights, statesthat: 'The patient has a right for his privacy and dignity to be respected, especially at the time of granting him health services. A right for dignity includes the right to die in peace and dignity. Terminally ill patient has right to health services providing alleviation of pain and other suffering ".19 See art. 20 of the Act of 6 November 2008 of the patient’s rights and the Patient’s Rights Ombudsman (Dz. U. 2016 position 186) It is stated in Art. 36 of the Act on the Profession of Doctor and Dentist: “The doctor providing support is obliged to respect the privacy and dignity of the patient. The doctor is obliged to care that other medical personnel observe this principle during proceedings with the patient”. 20 See art. 36 of the Act of 5 December 1996 r. on The Professions of Doctor and Dentist (Dz.U. 1997 No. 28, position 152 with amendments). This concise statutory formulation is supplemented by medical ethics code, especially in Art. 32: "In the terminal stages a physician has no obligation to take up and continue resuscitation or aggressive medical treatment and emergency measures. It is the doctor’s decision to stop resuscitation and it is connected with the assessment of therapeutic opportunities." 21 Kodeks Etyki Lekarskiej, http://www.nil.org.pl/__data/assets/pdf_file/0003/4764/Kodeks-Etyki-Lekarskiej.pdf (access: 27.05.2015) Lack of comprehensive solutions is visible. Therefore, in the propounding of new changes and additional regulations that might ensure full protection and realization of human rights relating to the ending of life should be insisted on. 22 See M. Śliwa Zagadnienia związane z końcem życia ludzkiego – aktualne tendencje w prawie porównawczym, Prawo i Medycyna, 3-4 (2013) p. 187-188.

In Europe today only a few countries, including the Netherlands, Luxembourg and Belgium, have established statutory regulations of euthanatic homicide considering this act acceptable and fully in accordance with law, and thus not causing any penal consequences for the participants. Of course, this does not mean arbitrariness in assessing circumstances of the occurrence, and lack of criminal liability occurs only if all conditions envisaged by law allowing a behavior to be considered euthanatic homicide, are met23 See M. Szeroczyńska, Eutanazja i wspomagane samobójstwo na świecie, Kraków 2004.. Development and current legal regulations in the Benelux countries, connected with the end of life on demand, are presented as follows.

Euthanasia has been widely and openly practiced in the Netherlands for years, yet it has remained technically illegal. 24 See R. L. Marker, Kids and Euthanasia, The Human Life Review, Winter 2002, p.2. But also the Netherlands were the first country in the world, to settle the matter of the euthanatic homicide by an act in law specially devoted to a problem of the end of life on demand and aiding the suicide, that is the Act of 28th November 2001. Until that moment, Dutch Judiciary, headed by the Supreme Court, carved, by unified case-law, a basis for the statutory approach to the problem. This unified stance of the courts opened an opportunity to recognize euthanasia as an act that can be done only by a doctor, on a clear, direct and unforced demand of the patient, whose level of suffering has become unbearable. Here, the following practices were introduced: written protocols of euthanasia activities, necessity of consulting with another doctor and discussing the matter with members of the family of a person demanding to undergo the procedure. In the Dutch piece of legislation there are six conditions that must be followed absolutely and altogether, to assure the doctor will not be punished. And so: the doctor must be sure that the patient is sure of his decision and made it unforced; the disease is incurable and causes unendurable suffering. The doctor must also put forward a prognosis to the patient and together they should come to the conclusion that euthanasia is the only way the end of the sufferings of the ill person and - there is no alternative giving hope to improve prognosis. The doctor must also consult with another specialist who should issue a written opinion approving a potential treatment, and the act of euthanasia itself must be performed in accordance with current indications of medical knowledge. Euthanasia of minors is highly controversial. Two groups stand out. The first – people from 16 to 18 years old, who can validly decide ontheir submission to euthanasia - they do not need the consent of their legal guardian, it is only important that the legal guardian is informed about their decision. The second group includes children aged between 12 to16. In their case, for legal euthanasia, a cumulative permission, i.e. of the minor patient and his guardian (usually parents), is required. At the same time, the child must be able to take decision having sufficient recognition, i.e. must be aware of the consequences of its choice.25 See M. Szadkowska, Zabójstwo eutanatyczne – tendencje liberalizacyjne w Europie na przykładzie Belgii, Studia Iuridica Toruniensia, tom XIII.

Legislation repealing doctor’s criminal responsibility only if all the conditions and procedures are followed is supposed to be a guarantee of safety and respecting procedures. Art. 293 paragraph 2 of the Dutch Act refers to Article 7 pairs.2 of the Act on Burial and Cremation. One of the main actions in this matter is notifying a municipal pathologist of the occurrence of a case of euthanatic death. He should submita form to which a report should be attachedto the doctor, in order to verify the compliance with the so-called medical conditions of caring diligence. If it turned out that a pathologist is unable to issue a death certificate on the basis of these documents then he is obliged to report it to the prosecutor and the Regional Control Commission. The Commission evaluates whether the doctor acted within the limits of care assigned to him by legal provisions, and may ask him to supplement forms orally or in writing. The Commission delivers its opinion within six weeks. However, if it considers the doctor to have been negligent or when the prosecutor filed a motion stating that burial or cremation cannot be considered as unopposed, the Commission is obliged to report this fact to the Regional Inspector of Health and the Public Prosecutor General. In the context of euthanasia is not difficult to notice the importance of Commission which is a kind of bond connecting legislators with representatives of judiciary and finally, of the medical world. The Commission’s supervision has essential guarantee function to law, preventing illegal practices, but at the same time protecting doctors from being accused of pushing the boundaries of medical limits, if only they acted within the legally designated limits. The phenomenon of Dutch law that developed the right for the patients to decide upon their own death, creating a precedent unique in the world, which was a result of linking system solutions with social factors. The evolution of judicial decisions met public acceptance for euthanasia actions. Furthermore, steps taken by the legislature to regulate practices commonly used in the health service were preceded by decisions of the judiciary, which - through sentences and their justifications - cleared the way for socio - normative approval. The public space in the Netherlands has been strongly marked by liberalism. Individual autonomy marks the legal framework relating not only to life, but also to death.26 See R. Citowicz, Prawnokarne aspekty ochrony życia człowieka a prawo do godnej śmierci, Warsaw 2006, p. 167-169.

Above mentioned legislative regulations in the Netherlands were an evident turning point and an impulse to introduce adjustments in Europe; especially in Belgium and Luxembourg. At the same time they aroused a heated debate, concerning ethical and cultural questions. There emerged opinions trying to force introduction of similar solutions on a global scale.

In Belgium, at first mainly courts dealt with the problem of euthanasia in accordance with specific facts. Despite legislation of the Criminal Code, which at that moment equated euthanatic homicide with murder, courts as a rule acquitted the accused. In addition, due to the existence of the principle of law enforcement opportunism, a large part of these cases did not even reach the courts. Legislative process was a long procedure and gave rise to much social emotion and controversy. In the 1980screation of acts aiming at decriminalization of euthanasia began. Until the beginning of the twenty-first century it was not achieved, because the subject of euthanasia had not yet become a real public or political issue. 27 See J. Griffiths, H. Weyers, M. Adams, The legislation of Euthanasia in Belgium in: Euthanasia and Law in Europe, London 2008, p. 276.The final euthanasia legislation draft was adopted by the Parliament’s Second Chamber, on 16th May 2002, after the Senate decided upon its wording. But it was not a unanimous decision. 28 See K. Poklewski-Koziełł, Belgijska ustawa o eutanazji i projekt takiej ustawy w parlamencie Francji, Prokuratura i Prawo 7-8 (2002), p. 102. The last step was signing the presented version of the bill by the King of Belgium.29 Loi du 28 mai 2002 relative a l'euthanasie, http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&table_name=loi&cn=2002052837 (access: 28.05.2015). On 23 September 2002 it came into force. This brought t an end a relatively brief legislative process that had begun in the summer of 1999. 30 See J. Griffiths, H. Weyers, M. Adams, Belgian Law on Euthanasia and Other MBPSL in: Euthanasia and Law in Europe. London 2008, p. 306.The aforesaid act defines (in Art. 2) euthanasia as the act of a third party who, acting in direct intention, at the demand of a given person, deprives himof his life. It applies to euthanasiasensu stricto, also active euthanasia that may be carried out only at the patient's demand. According to Art. 3 section 1 of the Belgian Act, the medical staff cannot be held criminal liable if it acts according to the following rules:

1. inform the patient as to his diagnosed health condition, prognosis, possible therapies, available palliative care, and the consequences of the decision made,

2. both the doctor and the patient must be convinced, that there is no reasonable medical alternative and patient demand is totally unforced,

3. the doctor must be convinced that the patient actually feels the physical or mental suffering. To establish that, he should conduct at the appropriate time several serious conversations with the patient,

4. the doctor must consult with another specialist, who will have a look at the medical records, examine the patient and determine whether there are reasons for euthanasia,

5. the doctor must consult the matter with members of the medical staff, as well as family members indicated by the patient,

6. the physician should make sure if the patient had the opportunity to discuss his decision with chosen people.

Unless the doctor anticipates that the patient's death will occur in the near future, at least one month should pass between the demand to end life and the euthanasia procedure. The will of the patient should be expressed in writing. The document should be drawn up and signed by the patient. If he is not in a condition to do so, a person designated by him may do it. The decision expressed in this way is to be attached to the patient's medical records. The Act also provides the patient with a possibility of anticipated declaration (Déclaration anticipé), expressing willingness to undergo euthanasia procedure in the absence of a direct expression of the will. Each adult can submit that type of declaration at any time. The written form is required, as well as presence of two adult witnesses, of whom at least one must not have any financial interest in possible death of the person declaring and the person of trust, if such was established. In accordance with Article 4, Paragraph 1, al.3 declaration must be dated and signed by a demand-submitting person and the witnesses. The demand may be revoked s at any time. Moreover, the declaration expires after five years. The discussed declaration may be submitted onlyspecific circumstances exist. Under the act, the expression of the patient’s will is becomes real only if the doctor determines that the patient is in an impasse (and his disease is incurable) and his suffering, mental or physical is not endurable. Additionally, qualifying conditions for euthanasia procedure in case of anticipated declaration differs slightly from the general rule, as it introduces the premise of "irreversibility" of the patient condition. 31 See T. Smets, J. Bilsen, J. Cohen, M. Rurup, L. Deliens, Legal Euthanasia in Belgium. Characteristics of All Reported Euthanasia Cases, Medical Care 2009. Anticipated declaration (as in general demanded euthanasia) is not binding. Doctors are not obliged to perform euthanasia procedure. The doctor who is going to refuse to perform euthanasia is only obliged to inform the interested parties and to substantiate his refusal and, alternatively, transfer the patient’s medical documentation to another physician designated by the patient. egulations32 Arreté royal du 27 avril 2007 réglant la façon dont la déclaration anticipée en matiere d'euthanasie est enregistrée et est communiquée via les services du Registre national aux médecins concernés introducing anticipated declarations and governing the way of informing doctors about them came into force in 2008. Registration procedures must be realized in the municipal administration. Applications are passed to a national database, accessible via Internet. The Law on Euthanasia of 2002 provides for reporting to the Federal Control and Evaluation Commission, which is responsible for deciding whether the doctor conformed to the requirements of due care. Only if the doctor is found “not careful” is the case forwarded to the prosecutorial authorities. 33 J. Griffiths, H. Weyers, M. Adams, Belgian Euthanasia …, op. cit., p. 342.Moreover Commission is the body which monitors the application of the law.34 See P. Lewis, Euthanasia in Belgium Five Years After Legislation, European Journal of Health Law 16 (2009) p.125. Each case is examined ex-post by a special committee, which consists of doctors, ethicists and philosophers. Belgian Act also introduces the “person of trust” institution. This institution is directly related to the declarations submitted by the patient, concerning anticipated euthanasia. Introducion of one or more persons of trust should take place in the anticipated declaration. A person of trust must be an adult. Members of the medical services, primary care physician, and consultants dealing with a given individual patient can not be appointed to perform this function. In case several people are designated for a person of trust, an order in which their opinion will be taken into consideration must be defined. Person of trust is a sort of spokesperson for the patient in the event of his loss of ability to self-express the will of euthanasia, and therefore should then express this will on behalf of the patient. First, the role of this person is to disclose information about the anticipated declaration existence to physicians, if it has not been included in the medical records yet. Moreover, in case the decision to start euthanasia procedure is made, this is the first person involved in it, and the doctor should consult procedures with him. It should be noted, however, that the basis for determining the patient’s attitude towards euthanasia is the anticipated declaration. The role of the person of trust in this case is purely advisory. His task is therefore to inform physicians about the existence such declaration and about patient demands and will. On the other hand, this person can not make binding decisions. 35 http://www.ieb-eib.org/en/pdf/ar-20070427-euthanasie-decl-antic.pdf (access: 25.05.2015). The Belgian system is based on broad respect for the patient autonomy of will. The foundation of Belgian regulations is respecting a right to self- decid, seen as an aspect of human dignity protection. 36 See M-L. Delfosse, Directives anticipées: quells choix éthiques en Belgique?, Bulletin de la Société des Sciences Médicales du Grand Duché de Luxembourg 2008, p. 3. Regulation also provide for partners’ relationship between patient and doctor, and encourages mutual respect and dialogue.37 See M. Syska, Zgoda na zabieg medyczny oraz oświadczenia pro future w ustawodawstwie i orzecznictwie francuskim i belgijskim. Część II. Postulaty de lege ferenda wobec ustawodawcy polskiego, Prawo i Medycyna 2 (2011) p. 81, 89-90. Considering the above, it is indispensable to note similarity to Dutch solutions. Partial acquisition of patterns indicates that the Dutch archetype was used to catalyze changes in Belgium. Moreover, an Act adopted in the Netherlands has set specific juridical structures and proper outlines that allowe Belgian legislation process acceleration.

Another country that adopted liberal nature ofregulations concerning euthanasia was Luxembourg. Several years of work on the legislation resulted in adopting The Act on Euthanasia and Assisted Suicide on 16th March which defines this practice as "an act performed by a doctor who intentionally puts an end to the life of a person at her expressed and voluntary demand. While assisted suicide is a conscious aid provided to another person by a physician to commit suicide or providing means in order to do so, on clearly expressed and voluntary demand of that person”. 38 See A. Michałek-Janiczek, Legalizacja eutanazji i samobójstwa wspomaganego w Luksemburgu, Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego 8 (2003), p. 43. It should be noted that, as in the two other Benelux countries, euthanasia procedure may occur exclusively between doctors and patients. The doctor who commits euthanasia or assists the patient in an act of suicide does not take neither civil nor criminal responsibility if the following conditions are met:

1. at the time the demand was made, the patient was conscious and able to makea responsible decision,

2. the demand was voluntarily expressed, after proper deliberation. If necessary, it should be repeated. The demand should not be the result of external pressure,

3. patient is in a terminal state, and feels intolerable suffering, physical and mental, with no perspective for improvement,

4. the demand was expressed in writing.

Both in the case of euthanasia and assisted suicide the doctor should meet the following procedural requirements:

1. inform the patient of his observed health condition and prognosis concerning expected time of patient’s life duration. In case the patient demands help to die (euthanasia or suicide) the doctor should discuss the problem with the patient, not forgetting about the available treatment options and palliative care. The person performing the medical profession should come to the conclusion that the demand of the patient is expressed voluntarily and that in the opinion of the patient is the only acceptable solution. Description of the conversation should be included in the medical documentation as a proof of the fact that the proper information has been passed to the patient.

2. make sure that physical and mental suffering persist on the same level, as well as a demand to die. At appropriate time the doctor should conductseveral serious conversations with the patient, taking nto consideration his changing health condition,

3. consult another doctor as to the character of particular disease and its incurability. A purpose of the consultation should be stressed. The consultant is obliged to analyze medical documentation and examine the patient personally. He should come to the conclusion that the health condition and experienced sufferings are of a permanent character and there is no chance for a patient condition to improve. The consultant is obliged to prepare a report in writing. The patient should be informed as to the conclusions of the consultation.

4. verify if guides on the last stages of life (life testament) concerning the patient are recorded in the register of The National Commission for Protection and Control.

As a rule, it is required that the declaration as a whole is prepared personally by the patient. If he is not able to meet this requirement because of physical obstacles, it can be done by another adult person designated by the patient. In the declaration the authorized person indicates the reasons which prevented the dying person from acting independently. The demanded euthanasia is in this case conducted in the presence of a doctor whose name must be indicated in the content of the statement. The document shall be incorporated into medical records. The patient can withdraw his demand at any time. In this case the statement is removed from the medical records and issued to the patient personally. Each case of conducted euthanasia or physician-assisted suicide should be reported to the National Commission for Evaluation and Audit. It consists of 9 members with relevant experience; three of them are doctors; three are lawyers and one is a person performing another medical profession. Two representatives are indicated by patient rights protection organizations. The Commission term of office is three years.

The doctor must fill a special form. The first part of the form contains, among others, the personal data of the patient and the doctor, as a rule it remains confidential and generally is not examined by the members of the Commission. The second part of the declaration, containing a description of the case, is subjected to analysis. The first part may be opened only in the event of any doubts, after . The Commission may ask for medical records relating to the deceased patient. The doctor’s performance review should be completed within two months. If it is unfavorable, a copy of the decision is to be sent to the Medical Council. The Council decides as to the possible initiation of disciplinary procedure, and, if the conditions of conducting euthanasia were not met, notifies the prosecutor's office. 39 See M. Śliwka, Zagadnienia…, op. cit., p.177-180.In contrast to the Netherlands, Luxembourg parliament did not envisage the possibility of assigning the decision to undergo euthanatic homicide to underage people. The benefits of the Act include precise outlining of medical procedures in terminal state. These procedures are guarded by the National Commission for Evaluation and Audit. The Act in question should be appreciated due to the comprehensive settlement of the subject; the accuracy and balance of valuesand different arguments. The explicit provisions facilitate its interpretation, so that the interpretation is uniform and judicature - coherent. The disadvantage of the Act is combining the testament of life with the problem of euthanasia.

These legislative processes have created a new model and approach to the problem of euthanasia. However, this did not end the legislative work and the development of this issue in the public debate. Social debates are still vibrant; provisions give rise to much controversy. Liberal tendencies for euthanasia extension, especially as far as person’s actions are concerned, are clearly observable. A change in the law in Belgium is a clear proof for that.

Numerous similarities between Dutch and Belgian legislation were already mentioned above. However, the distinguishing feature of the Belgian Act is greater conservatism. In particular, it was clearly visible in case of minors’ euthanasia. A clear age limit was outlined in the Netherlands, dividing minors into categories, allowing them to decide either independently or together with legal guardians of the demand for euthanasia, while Belgian law mentioned only that the decision about euthanasia may be of the legal force, if it would be articulated by an individual with full legal capacity, and therefore the subject would be characterized with the attribute of adulthood. 40 See M. Szadkowska, Zabójstwo…, op. cit. When concluding the legislative process in Belgium, the Parliament still continued the debate on the euthanasia regulation liberalization, especially in relation to minor patients. Attention was paid to the need of allowing them to decide independently on being subjected to this procedure. Franconia Socialist Party at the end of 2012fild a motion for creating the possibility to undergo euthanasia by minors. Philippe Mahoux took special place among the support of the new rules and was one of the most important creators and originators of this project. He argued that there is a need for change caused by already existing and expanding practice of minors’ euthanasia. He stressed that this is the only legitimizing of the status quo. This will allow control over this process, determine the legal framework for that type of actions, provide for the maintenance of adequate standards and, above all, increase safety of both children and doctors performing these procedures. Doctors will no longer operate clandestinely and illegally (and this way of operation could lead to carelessness and worse care). The Senator pointed out, however, that this concerns only sane minors, suffering from incurable diseases whose suffering can not be relieved in any other way. 41 See F. Soumoi, Euthanasie : Mahoux veut étendre la loi aux mineurs, http://www.lesoir.be/139913/article/actualite/belgique/2012-12-18/euthanasie-mahoux-veut-%C3%A9tendre-loi-aux-mineurs (access: 26.05.2015).However, problematic was the question of the minor’s independent decisionlimit. There were two possible concepts. The first of them, like in the Netherlands, had to rely on establishing a rigid age limit and observing it regardless of the deciding minor’s emotional development. Indication of a particular age gave rise to serious doubts, because the environment of doctors, psychiatrists and psychologists have remained firmly divided into supporters of establishing that limit at 12 years, while others suggested permitting a higher age, i.e. 15 or 16 years. Theories condradictory as to age limits had no sufficient justification. Another possibility was proposed, i.e. giving the child the total freedom in deciding of its life and health, provided that a child is intellectually and emotionally well-developed. This would guarantee that such a decision is justified, thought-through and balanced. Criticism of this model appeared on the practical level. Methods and criteria for determining the degree of maturity, and persons chosen to estimate them were under question. The final declaration of a child would be confirmed by the signature of a guardian. Doubts also appeared as to the question of a minor free-deciding versus parental responsibility as the foundation of upbringing. A complicated argument focused around the concept of the parents’ consent, its binding force and the range and method of submitting declaration.

It was known that the participation of parents in their child euthanasia process must be ensured. However, the opinion prevailed that total )absolute) parent consent should be abandoned and a form of minor’s decision acceptance. In this way, despite having parental authority (authorizing to decide in most problems relating to the child), the possibility of deciding would be limited. The argument was that only an ill, suffering, experiencing daily pain child is able to evaluate its own situation, the ability and willingness to continue existence. Therefore, only a child is entitled to decide about shape of its life, and whether to quit it at a given moment.42 See M. Szadkowska, Zabójstwo…, op. cit. This view was subjected to broad and strong criticism due to numerous moral and ethical controversies. Christian, Muslim and Jewish religious leaders in Belgium condemned the bill as trivializing death and setting society on a dangerous path. 43 See J. Collins, S. Somskanda, Children’s right to die affirmed in Belgium, The Christian Century, 22 January 2014, p. 13. The loudest protestwere raised by conservative circles and the Catholic Church, claiming that "there is a risk of life sense changing by granting value of humanity only to those who are able to judge the dignity of their own existence. 44 http://ncronline.org/news/global/belgium-passes-law-allow-euthanasia-small-children (access: 21.05.2015). Official letters and petitions to government appeared, calling for common sense, comprehensive and balanced debate, no rush and public consultation. An opinion of the chairman of the Episcopal Conference of Belgium, Archbishop Andre - Joseph Leonard can be an example. He stated that such regulation undermines the essential solidarity of all citizens with people suffering. In his opinion, instead of extending the right to actively support death, society should consider how health services can provide better help to the seriously ill.45 See M. Teahan, Belgium bishops attack proposed euthanasia law extension, http://www.catholicherald.co.uk/news/2013/11/13/belgium-bishops-attack-proposed-euthanasia-law-extension/ (access: 20.05.2015). On February 6, 2014 the archbishop helped to lead a day of prayer and fasting in protest against the legislation. He said in a statement that the protest was intended to “wake up people’s consciences”.46 Euthanasia for Children?, www.americamagazine.org (access:10.03.2014). “Also some Belgian pediatricians expressed their opposition in their special solemn letter to parliamentarians, stressing that child euthanasia demand, spontaneous or thoughtful, never occurs in practice. Marie-Christine Marghem speaking on their behalf in Parliament emphasized that "no child wants to die, it does not want its parents to suffer, but it's not the same".47 See J. Szczygiel, Śmierć dla każdego, ,Gość Niedzielny 8 (2014), p. 54-55. Also The American College of Pediatricians was appalled by Belgium’s legalization of euthanasia for terminally ill children of any age. 48 See D. Andrusko, The American College of Pediatricians blast Belgian policy of “neonatal euthanasia”, , National Right to Life News, February/March 2014 , p. 13This fierce debate continued. The Committee on Justice and Social Affairs Committee was working on the project at that time. The debate was based on the opinions of specialists in the fields of medicine, bioethics and law so as to outline the widest background of the problem and help politicians who were not experts on regulated matters. They should deal with problems in such a way so as to formulate provisions of the act regulating euthanasia procedures best and most preferable from an ethical point view. At the same time magazines, petitions, requests and fervent appeals to stop work aiming at so far-reaching liberalization of the law on euthanasia reached members of Parliament. Even on the eve of the voting 250 experts from 35 countries, gathered at International Congress on Palliative Care in Mumbai, India, and claimed for the resignation of amendments, declaring: "All the dying children should have an access to adequate pain control and high quality palliative care. Euthanasia is not a part of palliative care and it is not an alternative for it." Moreover, it is worth mentioning that liberal changes according to the project discussed in Belgium were originally planned as going further, including a group of entities that could actually decide on submission to euthanasia of a person suffering from senile dementia, degenerative diseases, e.g. Alzheimer's disease. Ratio legis of this idea was the fact that this type of disease progresses continuously and the way in which it affects humans - impairing them mentally and physically thus causing gradual loss of his identity. The effect of long-term work and discussions became the amendments to the Act, introducing children euthanasia. At the end of November 2013 Committee of the Belgian Senate passed a project of widening euthanasia right to minors. Amendment got into the agenda of the federal parliament on13th February 2014 and was passed. 86 Belgian MPs were for the amendment , 44 were against and 12 abstained. For it “were not only socialists and liberals forming the government of Prime Minister Elia Di Rupo but also representatives of the Walloon and Flemish Ecological Party of Greens being in opposition. The Socialists argued that "it's not about killing people, but about freeing them from suffering." The Greens emphasized that, first if equality of all is the point: "the right to decide about their lives can not be reserved for adults". Until the last moment environments being against this regulation took actions aiming at Belgian monarch not to sign the bill. He received a petition signed by over 200,000 people, asking him to oppose the will of parliament. Finally, King Philip I of Belgium signed an Act allowing minor euthanasia on 2 March 2014. Thus, Belgium became the first country in the world to allow euthanasia, regardless of the age.

In case of minors’ euthanasia, the rights are not exactly the same as for adults. First of all, a child who asks for euthanasia must be in the final, terminal stage of the disease and suffer unbearable pain caused by its disease. For adults, there is no such requirement and Belgian law merely states that suffering of physical or mental nature must be hopeless, persistent and unbearable. On the other hand, in relation to the minor patients, exclusively mental anguish can not be a premise for euthanasia.49 See J. Piasecki, W Belgii zmiany: eutanazja dla dzieci, http://bio-etyka.blogspot.com/2014/02/w-belgii-zmiany-eutanazja-dla-dzieci.html (access: 19.05.2015). In addition, euthanasia of a persons under 18 years of age may be performed only if there is no other way to reduce the suffering of the child. Young patient must be aware of the situation and understand what euthanasia is. The child must be sufficiently competent to be able to decide about its health. What's more, minor’s demand must be accepted both by his parents and medical personnel. In case of children all other requirements for performing euthanasia must be met, for example, a demand for euthanasia must be permanent and repeated several times. The psychologist must also confirm that the child has comprehension and is able make a decision to die. This excludes from the scope of the act infants and mentally ill patients. In cases not promising for recovery and the suffering of newborns and young children doctors in consultation with parents decide of the act. 50 J Pawlicki, Eutanazja dla dzieci. Dlaczego Belgia się na to zdecydowała?, http://swiat.newsweek.pl/eutanazja-dla-dzieci-wspomagane-samobojstw-w-belgii-newsweek-pl,artykuly,276506,1,2.html (access: 19.05.2015). This way of children euthanasia regulation raised many objections. First of all, conditions of admissibility were criticized. The fundamental problem is underspecification and the discretionary nature of notions like "unbearable suffering". Substantial doubts regard the wording: "the child is to be aware of the situation and understand what euthanasia is". Determination of the state of consciousness raises concerns, clear criteria and standards of evaluation do not exist. This leaves door wide open for abuse and excessive freedom, depending on psychological trend and thechild’s development examination model. Despite such a significant extension of the admissibility of euthanasia, the debate in Belgium continues. There are still problems concerning rejected amendments of the Act. This refers to euthanasia of people with senile dementia or of patients with mental incapacity over the age of seventyThese are new challenges that the Belgian society and the Parliament are faced with. Still, a very timely question is how far the admission of ending life on demand may reach and whether there are limits not to be exceeded in order to protect human health and life.

It should be indicated that the legislative process in Belgium became a stimulus for other European countries to change their euthanasia legislation. The French Green Party may here serve as an example. On the same day when the Belgian parliament voted their act, the French brought a new project on euthanasia to the National (concerning only adults). Senator Corinne Bouchoux submitted the text. She declared that the first aim of the idea is that the killing of patients be legally treated as a natural death, and among recipients were, among others, mentally suffering patients.51 A. Leclair, Fin de vie : les écologistes veulent une nouvelle loi avant juin, http://www.lefigaro.fr/actualite-france/2014/02/13/01016-20140213ARTFIG00193-fin-de-vie-les-ecologistes-veulent-une-nouvelle-loi-avant-juin.php (access: 21.05.2015). Current French legislation since 2005 allows doctors to administer such a dose of strong pain relieving medicine, which, according to their knowledge, will have the side effect of shortening the life of the patient. In addition, new French legislation amended in 2015 permits that people terminally ill or badly suffering can be treated with pain –relieving medicines and at the same time deprived of food and fluids until their death. Nevertheless, euthanasia has not been regulated directly. It is possible that France, deriving from Belgian patterns, will commence legislative procedures striving toward legal institutionalization of euthanasia procedures. Another example might be the Netherlands, where law allows euthanasia for children at age of 12 and over. But now prominent pediatricians want the age limits rmoved. For example Eduard Verhagen, pediatrics professor at Groningen University, who is on the associates of ethic commission, said: ,,We feel that an arbitrary age limit such as 12 should be changed and that each child’s ability to ask to die should be evaluated on a case-by-case basis”.52 See W.J.Smith, Dutch Pediatricians Want to Euthanize Children, National Right To Life News, June 2015, p.25.

The described development of situation in Belgium and similar trends in other European countries indicate a process of continuous expansion of the circle of persons authorized to decide of the ending of their life. Attention should be paid to the fact that at first arguments for the admissibility of euthanasia were purely medical points, connected with an incurable disease, terminal state connected with a great pain. Gradually other reasons to justify euthanasia were accepted. They were related to mental experience sphere, inability to acknowledge one’s life situation. Admittedly, at least indirectly, they were connected with the state of health or functioning of the body. However, the role of subjective judgment of one’s own state of being, one’s psychological condition increased. The fact of desire and the need for further life became significant.

The glorification of personal freedom and the right for self-determination were the reasons for expanding the limits of personal acting in the range of giving assent for euthanasia. We can not ignore the dangers that are associated with the law development direction, concerning human life ending. Personal freedom is the foundation of human rights. However, it seems that life and health of a human being is the supreme value. Taking these two goods into consideration, it occurs that in case of euthanasia sometimes they are in conflict. Thus extreme caution and consideration are recommended before introducing any change of legislation. This process should be preceded by a wide-ranging social debate, medical consultations and legal aspects study. This is due to the fact that medical interventions involve the most basic moral convictions. Often enough, they concern matters which by their very nature can not be the subject of (almost) universal agreement. They are closely related to the conviction as to what gives a specific value to an individual human life, about the goals worth achieving, as well as ways of understanding individual destiny. These convictions strongly affect identity of individuals and usually can be changed only with a great difficulty. 53 See P. Łuków, Rola światopoglądów w tworzeniu prawa medycznego, Prawo i Medycyna 1 (2011), p. 6.

To conclude these deliberations an ethical problem should be pointed out. Euthanasia is one of the most difficult moral questions at the start of 21st century. The starting point was the thesis proclaiming the sanctity of life (traditional deontological ethics). Rejection of the traditional sanctity of life ethics may have complex and serious unwanted consequences. Opposite this risk, however, there is another trend, referring to a harm of those, whose life is unnecessarily prolonged.54 See P. Singer, Etyka praktyczna, Warsaw 2003, p. 207. Currently, in theories based on consequence, a problem of quality of life as a value more important than life itself increasingly emerges. This leads also to trials of determining terminal patients suffering level that could entitle a doctor to perform death procedure. Controversy over euthanasia concerns not only its biological – medical aspects, but above all - the cultural dimension. Attempts to change the structure of ethics proceed in a direction of making it possible to accept euthanasia morality ". These trials raise many objections and controversy. 55 See M. Sikora, M.S. Szczepański, Eutanazja w świadomości społecznej: między odrzuceniem a akceptacją, in: B. Chyrowicz SSpS (ed.), Eutanazja: Prawo do życia -Prawo do wolności, Lublin 2005. In the light of above considerations the problem of euthanasia appears as a very complex one. An animate and live argument concerns not only different legal regulations, the limits of admissibility and the definition of the concept, also on ethical grounds. For that reason, the problem of euthanasia, despite the flow of time, is a cause of discussions and loud public debate. The universally acceptable compromise which a significant majority of the population would stand for, has not been reached so far.

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