When a doctor suicides his seriously ill patient, he is standing with one leg in prison. This is unbearable. The constitutional court has to take corrective action.
Every Sunday Heribert Prantl, columnist and author of the Süddeutsche Zeitung, deals with a topic that will be relevant in the coming week – and sometimes beyond. Here you can also order "Prantls Blick" as a weekly newsletter – exclusively with his personal reading recommendations.
Germany is a safe country. But hardly anywhere else is there so much legal uncertainty about dying as here. Dying children in Germany hardly find a doctor who helps them with suicide: who is allowed to die when and why? And who is allowed to help him when and why and how? What is possible at the end of life and under what conditions? Is there the freedom to shape one's own dying?
Not even the palliative care physicians, whose job and vocation it is to look after dying and dying people, know it well. Dying is becoming a legal art. On the deathbed stand strange paragraphs. If the Federal Constitutional Court in Karlsruhe now does not clarify, the Bar will still have to introduce the "specialist lawyer for the right to die".
The Supreme Court is handling constitutional complaints on Tuesday and Wednesday this week against the new Paragraph 217 of the Criminal Code, which since 2015 punishes the "business promotion of suicide". Societies based in Germany and Switzerland, which offer euthanasia, have sued; have sued seriously ill people who want to end their lives with the help of such an association; and have complained physicians who believe that the new paragraph endangers a patient-oriented treatment.
Dying is currently a big topic at the highest courts
It is, so to speak, much died at present in the highest German courts; the highest judges can not and must not avoid the basic questions that arise at the end of a life – not least because the legislator has answered these questions so unsatisfactorily and unclearly. Because the legislature fails, it is high time for the highest courts. It is the task of the judiciary to bring safety to life and death.
It was only recently that the Federal Supreme Court had to decide whether an artificial extension of life could be a loss that would make the doctor liable for damages; the judges rejected that. Now, the Federal Constitutional Court has to decide in another matter whether and what euthanasia may be provided.
The Strafparagraf 217 was reintroduced in 2015 in order to drain the water from the "Sterbehilfeverein Deutschland" of former Hamburg justice senator Roger Kusch. This article 217 aggravated the uncertain legal situation at the end of life – according to the palliative physician Gian Domenico Borrasio. By 2015, the aid for suicide was unpunished.
However, the new Penal Code 217 now criminalizes the "businesslike" promotion of suicide, with up to three years in prison. That does not sound so bad, but it is – because this formulation can also cover the discontinuation of treatment, indirect euthanasia and palliative care.
"Businesslike" is a very broad and very vague legal term that (unlike commercial practice) does not require profit. According to the rationale for Paragraph 217, even the one who commits an act for the first time acts in a businesslike and therefore punishable manner, if this constitutes "the beginning of a continuation of an activity", as is the case with every medical act.