Everyone has the right to make their own decisions about their personality and their actions.
This principle is constitutionally guaranteed by the general right of personality. It is a core element of our constitution and our daily coexistence. The general right of personality protects, among other things, the “withdrawal”, being alone, knowledge of one’s parentage and the right to sexual self-determination. To put it in a nutshell: It protects the free development of one’s own personality, to live one’s life the way one wants.
Capturing the content of the general right of personality may sound easy at first. On closer inspection, however, it is not. Because the freedom of personal development is limited: It only lasts as long as the freedom of another is not unduly restricted or the exercise of the general right of personality violates the free and democratic basic order – it can be violated by a law that pursues a legitimate purpose, be limited within the bounds of what is reasonable. It is not for nothing that society, politics and the courts are concerned with the general right of personality.
The social and political discussion about the content and scope of the general right of personality often focuses on ethical debates, which are evaluated differently not only legally but also socially. It is often about questions that go to the core of one’s own personality, to basic values and moral concepts.
Probably the most relevant current question, the linchpin of which is the reach of the general right of personality and affects each of us in our most intimate fears and desires, is that of a legislative covering of the right to a self-determined death with dignity and, at the same time, the right to enlist the help of a third party. Even if the acceptance of this may be difficult for some people personally, depending on their conviction, origin or religion: that the right to make the decision independently, to end one’s life consciously and willingly and to get help in doing so is guaranteed by the general right of personality, is no longer disputed at the latest since the judgment of the Federal Constitutional Court of February 26, 2020.
With this groundbreaking decision, the Federal Constitutional Court not only eliminated criminal liability for commercial euthanasia, but also recognized this right as a fundamental value of our society. However, how the individual is to be granted access to this right in Germany – in very practical terms – has not yet been clarified – to the chagrin of a not inconsiderable proportion of the population. Retaining this status quo – no criminal liability, but no further regulation – would be conceivable, but would not do justice to those affected.
The Federal Constitutional Court has also given the legislature specific instructions as to how it envisages constitutional access to assisted suicide, which is the core of the discussion. The right to a self-determined death with dignity requires that the decision to commit suicide is self-determined, i.e. free and uninfluenced. The person concerned must also be given the opportunity to know all aspects relevant to the decision, including alternative courses of action. In addition, free will must be supported by an inner firmness and exist permanently.
It is now up to the legislature to find a regulation that secures this individual decision of everyone. The Federal Constitutional Court has expressly called on the legislature to ensure that the decision to commit suicide is based on free will. This – but no more – is required by the state’s duty to protect life. A procedure must therefore be created that offers legal certainty and leaves neither those affected nor helpers alone. Developing an advisory structure that does not patronize but listens is what is needed for consistent legislative implementation of the right to self-determined dying in accordance with the Federal Constitutional Court. A liberal reorganization is needed that believes in the ability of the individual to make the best decision for themselves – even when it comes to their own death.
It is simply not compatible with the decision of the Federal Constitutional Court to criminalize assisted suicide again, as some drafts envisage. The Federal Constitutional Court has made it unmistakably clear that encroachments on the right to self-determined dying by prohibiting assisted suicide are constitutionally proportionate only if this does not restrict the possibilities of assisted suicide to such an extent that the individual no longer has any real scope to exercise his/her constitutional rights protected freedom remains. Protection of life by means of criminal law is only permissible if the free decision of the individual to end his life is only protected and not made impossible. A de facto emptying of the autonomous decision by a “comprehensive” criminal liability would be simply unconstitutional.
According to the decision of the highest court, it can make just as little difference whether the person who is willing to die is seriously ill or not, even if the wish to commit suicide seems easier to understand in the former case. The only decisive factor is the permanent, serious autonomous decision that needs to be checked and secured by the state. This is best met by an organized counseling structure and by creating framework conditions through which those who are willing to commit suicide can implement their own responsible and self-determined decision to commit suicide painlessly and safely by gaining access to the appropriate medication in an orderly process. It is important to determine whether it is voluntary and serious, which ultimately must be ensured by advice and the doctor. This is particularly important for mentally ill people.
In summary: the right to self-determined death exists. It is enshrined in the general right of personality. This right is the starting point of any debate about assisted suicide. The discussion about a new regulation is without question urgent – not only for us as a society, but above all for those affected and helpers. Where there is a right, however, there is no room for a criminal prohibition. The general right of personality is thus the reason for the debate on assisted suicide, but at the same time it is also its limit.
Do you have suicidal thoughts? The telephone counseling service offers help. She is anonymous, free and available 24 hours a day on (0800) 1110111 and (0800) 1110222. Advice via email is also possible. A list of nationwide help centers can be found on the website of the German Society for Suicide Prevention.
