Euthanasia: the Counter-example of the Belgian and Dutch Laws

Only five years after the Claeys-Leonetti law of February 2, 2016, the end-of-life debate has been reignited in France with a pro-euthanasia offensive consisting of four proposed laws.

In the Senate, the bill "aiming at establishing the right to die with dignity" (No. 131) introduced by Senator Marie-Pierre de la Gontrie (PS) was rejected on March 11, 2021. It was a text essentially echoing a bill to legalize euthanasia and assisted suicide and to ensure universal access to palliative care drafted by the l’Association pour le Droit à Mourir dans la Dignité (ADMD, Association for the Right to Die with Dignity) in 2018.

In the National Assembly, the current pro-euthanasia offensive has taken shape through the proposed laws No. 3806 "aiming at guaranteeing and reinforcing the rights of people at the end of life" brought by Jean-Louis Touraine (LREM), No. 3755 "aiming at affirming the free choice of the end of life and ensuring universal access to palliative care in France" brought by Marine Brenier (LR) and No. 288 "giving the right to a free and chosen end of life" brought by Olivier Falorni (Libertés et Territoires group). The latter will be debated on April 8. However, the government does not seem to be in favour of legalizing euthanasia in the immediate future: in the Senate on March 11, Health Minister Olivier Véran stated that he "does not believe that the time chosen to modify the legal regime of the end of life is the right time". He also announced the creation, starting in April 2021, of a new national plan for the development of palliative care and end-of-life support.

"One dies poorly in France". Such is the leitmotiv of the partisans of the legalization of the euthanasia, that the deputies Touraine and Brenier endorse in the explanatory statements of their proposed laws. One can thus read there that the Claeys-Leonetti law constitutes a "too restrictive legal framework" (Brenier's proposal) and "presents (...) some gaps, responsible for suffering and regular media cases" (Touraine's proposal). The objective is therefore to make the French law on the end of life evolve by a new step including euthanasia, so as to "put an end to a hypocrisy that has lasted too long" since it would seem that "between 2,000 and 4,000 people end their lives each year in France thanks to active assistance in dying by a doctor" (Touraine's proposal): it would therefore be because such a practice exists clandestinely that it must be officially authorized. This conception of the law delegitimizes any prohibition or obligation and makes the law itself useless in fine.

Foreign laws authorizing euthanasia: models for euthanasia promoters

Proponents of euthanasia also rely on the existence of foreign laws permitting this practice and/or assisted suicide. In Europe, this has been the case in the Netherlands since 2001, in Belgium since 2002, in Luxembourg since 2009 and in Switzerland. In recent news, the Portuguese law on euthanasia, passed on January 29, 2021, has just been judged contrary to the Constitution by the Constitutional Court on March 15, 2021. Three days later, on the other hand, the Spanish Senate approved the "euthanasia regulation law" passed last December.

Does this mean that people die better in those countries where euthanasia is permitted? Its promoters praise these laws as being exemplary, and the present bills are largely inspired by the Belgian law, which is itself similar to the Dutch law. According to the Touraine proposal, "The systems put in place by these countries, comparable to the one proposed in this text, are supervised and offer a means of control, unlike the current French legislation. They have never been called into question in these various countries because they respond to the demands of the population." For MP Brenier, the fact that other countries authorize euthanasia is "proof that we must follow this approach. In this sense, Belgium is a good example to follow. In 2002, the year in which active assistance in dying was legalized, our parliamentary counterparts designed a global legal framework that included the implementation of active assistance in dying, in-depth work on their palliative care system and, therefore, the end of life in general. By working on this tailor-made framework, which would allow a precise control of all these medical acts, Belgium has put forward what must also be our objective in France: the free choice of the patient above all". As for MP Falorni, he writes of the Belgian law that "No, it has not favored a multitude of abuses. On the contrary, it has strictly defined active assistance in dying, whereas nearly 2,000 acts of clandestine, and therefore de facto criminal, euthanasia are practised in France without any control." The reality is less exemplary than the promoters of the so-called "gentle death" would have us believe.

The abuses permitted by foreign laws authorizing euthanasia

Indeed, abuses are notorious in Belgium as in the Netherlands[1] and come from various sources.[2] The authors of a recent study express concern that "several conditions in the euthanasia law that are supposed to function as safeguards and procedural guarantees in reality often fail to do so".[3] The conditions under which euthanasia is permitted were originally intended to be strict but have proven to be vague and subjective, allowing for broad interpretation by practitioners. In particular, the fact that euthanasia is permitted in cases of psychological suffering allows for a number of abuses because of the difficulty of understanding the extent of such suffering: this is why Belgian health professionals regularly ask that the conditions allowing such a euthanasia be redefined, or even that such a possibility be removed.[4] In Belgium as in the Netherlands, however, the trend is towards the multiplication of euthanasia (officially 235 euthanasias performed in 2003 and 2444 in 2020 in Belgium) and the progressive destruction of the original safeguards: in 2014, the possibility of requesting euthanasia was also opened to minors "with the capacity of discernment" without age limit in Belgium, while the Netherlands allowed the euthanasia of newborns under certain conditions by the (unofficial) Groningen Protocol (2005) and is thinking about opening access to people tired of living and minors under the age of 12. The euthanasia mentality is progressing as shown by three studies revealing that "40% of Belgians are in favour of stopping care for people over 85 years of age".[5] In the Netherlands, the NVVE association has created "flying teams" and an end-of-life clinic to treat borderline cases that doctors refuse to take on.[6]

The questionable effectiveness of control commissions

In the Belgian and Dutch systems, there are commissions which are responsible for monitoring the application of the law on euthanasia, but their effectiveness is widely questioned. This control is carried out a posteriori - that is, after the death of the person - and is based on the simple declaration made by the doctor who performed the euthanasia. It is futile to hope to protect the life of persons with a control carried out after their death. Moreover, the declarative nature of the system has an impact on the quality of the control: doubtful cases are not declared, as the president of the Belgian commission recognized.[7] A study shows that about 50% of Belgian euthanasia were not declared in 2007.[8] The question of the independence of such a control commission also arises: in the Belgian case, nearly half of its members come from associations militating in favour of euthanasia[9] and/or are doctors who themselves practice euthanasia: they are therefore both judges and jury. Finally, it is enough to read the reports of these commissions to realize that they sometimes validate cases of euthanasia that are at the limit of legality, or even beyond the provisions of the law. According to the third five-year report (2012-2016) on the evaluation of the Dutch law, "When a doctor has acted in a way that does not comply with the criteria of thoroughness but apparently in good faith, the commission prefers to adopt an educational attitude towards him or her rather than to initiate proceedings".[10] Very few cases are ultimately referred to the courts: between 2002 and 2016, the Belgian commission referred only one case to the public prosecutor out of 14,573 euthanasia.[11] This is astonishing when cases are regularly publicized in the media, such as those concerning the Verbessem brothers (twin brothers who are deaf and have glaucoma that should make them blind), Nathan Verhelst (victim of a failed sex change operation) or Tine Nys (a woman who was diagnosed with autism a few months before her euthanasia) in Belgium, or Gaby Olthuis (a woman who was euthanized because she suffered from tinnitus) in the Netherlands. The Dutch justice system is very lax in this matter, as shown by the Albert Heringa case, which saw the acquittal of a man who illegally "assisted his mother in her suicide".

The concerns of Jean Léonetti, father of the French end-of-life laws

It is interesting to note that Jean Léonetti, the father of the Léonetti and Claeys-Léonetti laws, wrote in a 2008 report about "Concerns about the legislation and practices resulting from the legalization of euthanasia" in these two countries.[12] Regarding the Dutch system, he noted that "the application of this law has several characteristics: the criteria for evaluating the degree of the patient's suffering are vague, the very existence of an a posteriori control makes the verification focus more on compliance with the procedure than on the reality of the medical reasons; the doctor's assessment is subjective and disregard for the law is not sanctioned. There is, moreover, a certain paradox in claiming loudly and clearly a right to autonomy for the person and in relying with this regulation on the doctor's decision".[13] Mr. Léonetti also observed that as a consequence of this "medical power" in this matter, a loss of confidence in medical personnel is visible and is pushing elderly Dutch people to move to Germany. He concluded: "Dutch medical practices are not well received by a part of the population".[14]

Belgian euthanasia abuses before the ECHR

The European Court of Human Rights (ECHR) is currently seized of the case of Tom Mortier v. Belgium, which challenges Belgian euthanasia abuses. The ECLJ has been authorized by the Court to submit written observations as amicus curiae in this case. While the ECHR has never admitted a right to euthanasia,[15] while not opposing it in principle, it has also declared itself aware that a legislation legalizing euthanasia may lead to abuses: it noted that "the risks of abuse inherent in a system that facilitates access to assisted suicide should not be underestimated "[16] and judged that "protecting everybody from hasty decisions and preventing abuse"[17] are legitimate objectives. Indeed, such abuses are foreseeable because "if death is traded as a solution to suffering and if suicide is viewed favorably when a doctor provokes it, the real question is not so much why some people are opposed to it, but "why say yes to some, and no to others?"."[18] Finally, are foreign laws authorizing euthanasia so exemplary? The objectives stated by the promoters of euthanasia when the Belgian and Dutch laws were adopted were to put an end to clandestine euthanasia, to supervise requests for euthanasia and to control the application of the law: these have not been achieved. However, these are the same objectives that are being put forward today by the authors of the current pro-euthanasia offensive in France.

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[1] On the situation in the Netherlands, see: L’euthanasie aux Pays-Bas, Alliance Vita, November 24, 2017.

[2] See in particular the report by Pierre Barnérias, "L'euthanasie, jusqu'où ? " (2013) See also: C. du Bus, "Euthanasie en Belgique : une nouvelle étude pointe les dérives de la loi", European Institute of Bioethics, 9 February 2021

3] Kasper Raus, Bert Vanderhaegen, Sigrid Sterckx, “Euthanasia in Belgium: Shortcomings of the Law and Its Application and of the Monitoring of Practice”, The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine, Vol. 46, Issue 1, February 2021, Pages 80–107.

4] See for example Ariane Bazan and others, "Schrap euthanasie op basis van louter psychisch lijden uit de wet. De dood als therapie?", De Morgen, 08.12.2015: 65 university professors, psychiatrists and psychologists demand that the possibility of euthanasia for patients with mental suffering and whose death is not expected in the short term be removed.

[5] https://www.lesoir.be/213111/article/2019-03-19/sante-40-des-belges-sont-pour-larret-des-soins-pour-les-plus-de-85-ans

[6] L’euthanasie aux Pays-Bas, op. cit.

[7] Complément d'enquête : " Santé, GPA, vieillesse : quand l'homme défie la nature ", France 2, October 2014.

[8] Smets T., Bilsen J., Cohen G., Rurup ML., Mortier F., Deliens L., "Reporting of euthanasia in medical practice in Flanders, Belgium: cross sectional analysis of reported and unreported cases," BMJ, 2010;341:c5174.

[9] É. de Diesbach, M. de Loze, C. Brochier and E. Montero, Euthanasie : 10 ans d’application de la loi en Belgique, European Institute of Bioethics, April 2012, Brussels, p. 6.

[10] https://www.ieb-eib.org/ancien-site/pdf/20170704-derde-evaluatie-wtl.pdf    

[11] Dominique Grouille, "Fin de vie : les options belge, suisse et orégonaise", La revue du praticien, vol. 69, January 2019.

[12] Jean Leonetti, RAPPORT D’INFORMATION FAIT AU NOM DE LA MISSION D’ÉVALUATION DE LA LOI N° 2005-370 DU 22 AVRIL 2005 relative aux droits des malades et à la fin de vie,, p. 131 et seq. (Netherlands) and p. 137 et seq. (Belgium).

[13] Ibid, p. 136.

[14] Ibid.

[15] Pretty v. The United Kingdom, no. 2346/02, 29.04.2002, § 39-40.

[16] Ibid. § 58.

[17] Haas v. Switzerland, no. 31322/07, 20.01.2011, § 56.

[18] Aubert Martin, " Euthanasie: les dérives vendues comme des progrès souhaités  ", Huffpost, 20 June 2017.