In the midst of the coronavirus crisis, Health Minister Jens Spahn has asked a group of experts for proposals on new regulations for suicide assistance, which consists mainly of those who previously supported the unconstitutional § 217 of the German Criminal Code. In their statement published today, the Giordano Bruno Foundation (gbs) and the Hans Albert Institute (HAI), which only learned of the letter a few days ago, explain what an alternative regulation that complies with the ruling of the Federal Constitutional Court could look like.
In the preliminary remarks of the conjoint paper, which was submitted to the Federal Ministry of Health before the deadline (June 9), gbs and HAI criticize the "tendentious selection" of the experts who were contacted by the Ministry on April 15, 2020. Overall, the ministry's approach raises suspicions of a "closed shop mentality": "While the public was busy coping with the corona crisis, the ministry consulted - with a few exceptions - the same experts who were responsible for the formulation of the unconstitutional § 217 of the German Criminal Code, while the critical voices who had pleaded for the constitutional adherence to individual self-determination rights were almost entirely excluded".
The state is under an obligation
In the second part of the statement, which takes a critical look at the letter from the Minister of Health, the gbs and HAI warn against "undermining the disposition of the Karlsruhe ruling". For example, the Minister's demand to "assess the voluntary nature, permanence, and seriousness of the suicide wish" contradicts the ruling of the Federal Constitutional Court. This is because the Federal Constitutional Court assumes that "politically mature citizens" do not have to justify their judgement to the state - unless there are clear indications that their free responsibility is considerably restricted. The statement also criticizes: While the minister's opinion is correct that the right to self-determined death does not entitle a "claim against third parties to suicide assistance", it does, however, imply a "claim against the state not to disproportionately impede suicide assistance from third parties".
"This point is of great importance for the further debate", emphasizes gbs board spokesman Michael Schmidt-Salomon, who drafted the statement in cooperation with members of the gbs Karlsruhe working group on assisted suicide. "Unfortunately, the statements of the Federal Minister of Health suggest that he concludes from the statement that nobody can be obliged to provide suicide assistance that the state is not obliged to provide assistance either. The Federal Constitutional Court's judgement aims in the exact opposite direction: precisely because no one can be obliged to assist suicide, the state has a duty to ensure that its citizens can exercise the right to die in a self-determined manner".
Concrete demands on the constitutional state
In the gbs/HAI statement, the authors present seven concrete demands that would have to be met in order to implement the Federal Constitutional Court's requirements in social practice. For example, the decree issued by the Federal Minister of Health to the Federal Institute for Drugs and Medical Devices (BfArM) not to issue positive notices to seriously ill persons for the purchase of the narcotic sodium pentobarbital should be repealed immediately: "A continuation of the previous practice", the paper states, "would have to be interpreted as a perversion of justice relevant to criminal law".
Furthermore, the statement calls for an amendment to the "model occupational regulations for medical practitioners working in Germany", which is not compatible with the German constitution, and for the inclusion of assistance with suicide in the catalogue of services provided by health insurers. With regard to the legal regulations, the authors recommend that criminal law should only be used in extreme cases (suicide by force, threat, deception, etc.). However, it would be necessary to ensure "that any punitive measures not only cover unlawful interventions that resulted in suicide, but also those interventions that unlawfully prevented a voluntary suicide".
Counselling offers instead of mandatory counselling
Two points of the list of demands deal with the subject of "suicide counselling". The statement says: "Instead of a compulsion to provide counselling, which cannot be justified under constitutional law to politically mature citizens, the state should create the widest possible range of counselling services and provide neutral and objective information nationwide. (...) Personal consultations must be free from any tendency. Counselling with the principle of avoiding or promoting suicide would be inadmissible. The aim of counselling is clarity for those affected - neither 'living at all costs' nor assisted suicide".
Moreover, the authors recommend state support for independent counselling centres on a non-profit basis, which discuss "open-endedly about their wishes to die" with those affected: "Such open-ended counselling centres could not least make a significant contribution to more effective prevention of desperation suicides and desperation suicide attempts, since those affected tend to turn to institutions which respect their wishes to die in principle, rather than pathologizing them from the outset". In this context, the "National Suicide Prevention Programme" had proved ineffective in view of the 100,000 suicide attempts per year in Germany, and needed "fundamental correction".
Will there be a "constructive dialogue"?
"Our proposals are on the table now," says gbs spokesman Michael Schmidt-Salomon. "We are curious whether, and if so: how the ministry will react to our arguments. After all, Jens Spahn claimed in his letter of April 15, which we only learned about in June indirectly, that he was seeking a 'constructive dialogue'. If this dialogue is really to include 'finding a constitutional solution that meets with broad acceptance in society', as the Minister's letter states, his Ministry would be well advised to dare to take a more pluralistic approach!"
Otherwise, the philosopher fears an "eternal return of the same": "It would be a tragedy for many severely suffering people if it were to happen once more that an unconstitutional law drafted behind closed doors were to be passed by parliament, which could only be overturned after long negotiations before the Federal Constitutional Court. I very much hope that the political leaders have learned from the disaster of the failed § 217 of the German Criminal Code - even if the first strike of the Minister of Health unfortunately gave the opposite impression".
The complete statement by the Giordano Bruno Foundation and the Hans Albert Institute was published today on both the gbs website and the HAI website. In addition, for reasons of transparency, the Giordano Bruno Foundation has decided to publish the invitation letter of the Federal Minister of Health dated 15 April 2020 on its website.
Addendum (June 15): The Institut für Weltanschauungsrecht (ifw - Institute for Secular Law) has also submitted a statement to the Federal Ministry of Health on the new regulations on suicide assistance (written by Prof. Dr. Dr. Eric Hilgendorf and Dr. Jacqueline Neumann). The statement can be downloaded here.