The right to euthanasia abroad: the experience of public law research

Vasilevich Dmitrii Grigor'evich PhD in Law Associate Professor of the Department of International Law at MITSO International University Republic of Belarus, Minsk, Kazinets street, 21, room 3 niipgergo2009@mail.ru Goncharov Vitalii Viktorovich PhD in Law Associate Professor; Department of Civil Procedure and International Law; Kuban State University 350040, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 niipgergo2009@mail.ru Other publications by this author     Potapenko Sergei Viktorovich ORCID: 0000-0003-3013-5072 Doctor of Law Professor; Department of Civil Procedure and International Law; Kuban State University 350040, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 niipgergo2009@mail.ru Other publications by this author

Bezuglov Sergei Vyacheslavovich PhD in Law Associate Professor of the Department of State and International Law of the Federal State Budgetary Educational Institution of Higher Education 'I.T. Trubilin Kuban State University' 350044, Russia, Krasnodar region, Kalinin St., 13 niipgergo2009@mail.ru

Introduction.

The issues of the place and role of somatic human rights in the general system of human and civil rights and freedoms are the subject of close research by such authors as S. Y. Poyarkov, ^{[2, pp. 47-50]} I. V. Gorokhova, ^{[3, pp. 86-90]} E. S. Zaitseva, ^{[5, pp. 164-171]} M. V. Saudakhanov, ^{[10, pp. 192-195]} A. M. Smirnov, ^{[11, p. 54]} as well as a number of other specialists. In turn, the problem of securing and implementing such an important and controversial somatic right as the right to euthanasia is widely analyzed in the works of V. V. Alexandrova, ^{[1, pp. 177-184]} Yu.A. Dmitriev, ^{[4, pp. 52-59]} N. A. Ivanova, ^{[6, pp. 67-71]} A. I. Lushnikova, ^{[7, pp. 106-120]} A. V. Popova, ^{[8, pp. 51-61]} A. Haddadi, ^{[12, pp. 145-152]} as well as some other scholars. However, there is no consensus in the domestic and foreign scientific legal literature regarding the concept, legal nature and content of the right to euthanasia, as well as the necessity and expediency of its consolidation in legislation, which determines the choice of the topic of this scientific research, the purpose of which is to study the right to euthanasia as a socio-legal phenomenon, the reasons for its the emergence and advancement in the legislation and judicial practice of a number of foreign countries. The scientific objectives of the study are: a) analysis of various points of view in Russian and foreign literature, as well as foreign legislation on the concept of the right to euthanasia, its content and features of legalization; b) development and justification of the copyright definition of the right to euthanasia; c) formalization of features distinguishing the concept of euthanasia from related and similar concepts of murder, suicide, assisted suicide; d) analysis and classification of foreign legislation of a number of countries in the context of the consolidation and implementation of the right to euthanasia by individuals in these countries; e) identification and formalization of the causes of the emergence and promotion of the above-mentioned right in the legislation and judicial practice of a number of foreign countries; f) substantiation of the degree of possibility, necessity and prospects for the consolidation of this right in the Russian Federation and the Republic of Belarus.

Research methods and methodology. Empirical research base

A number of scientific research methods were used in the work, in particular: analysis, synthesis, analogy, formal law, comparative law, interpretation of legal norms, sociological, historical and legal, etc. The empirical basis of the research consisted of: the norms of foreign legislation that enshrine the right to euthanasia as the most important type of somatic rights; materials of the scientific legal doctrine of human rights.

The main text.

The most important type of the modern system of human and civil rights and freedoms are somatic rights, which are directly related to the human body, as well as his life and death. In this regard, one of the key somatic rights is the human right to euthanasia, which is enshrined in the legislation of most foreign countries.

In scientific legal doctrine and foreign legislation, there is no single point of view on the legal nature of this right, as well as on its concept, content, and features of legal implementation.

A number of researchers note that the right to euthanasia can be understood as the deprivation of a person's life, but carried out with the help of third parties. ^{[6, pp. 67-71]} Other authors, on the contrary, believe that euthanasia can only be attributed to the deprivation of human life by third parties, but on condition that the subject (bearer) of the right to euthanasia expressed his own will without coercion and motivation from the outside, being in a sane state. ^{[12, pp. 145-152]} Third authors believe that euthanasia can be carried out either by a person independently or with the help of third parties, or by third parties in general, but with the informed consent of the subject (bearer) of the right to euthanasia, or according to his will and desire. ^{[7, p. 106]}

We believe that euthanasia should be distinguished from related and similar concepts, such as suicide, murder, complicity in murder, etc.

In our opinion, the division of euthanasia, termination of life at the request of a patient, and assisted suicide, which exists in a number of classifications, is not correct.

So, if a person commits suicide and is assisted by third parties, then it should be clarified what the nature of this assistance is and how it affects the possibility and effectiveness of the death of the above-mentioned person.

If, for example, a hospital institution provides the holder of the right to euthanasia with a room (a separate room), as well as medicines, various medical systems through which he can administer these drugs to himself (but this assistance does not consist in performing actions that result in the death of this person), then assisted suicide is taking place.

If third parties commit acts that result in the death of the patient (for example, they inject medicinal substances that lead to the death of a person), then we should not be talking about assisted suicide, but about causing death to the person (including murder).

At the same time, euthanasia differs from suicide, in our opinion, since the latter takes place without the participation of (conscious) third parties. In suicide, a person takes his own life by committing certain actions (for example, firing a firearm), or inaction (resulting in death). The occurrence of death in the latter case should not be confused with the occurrence of death, for example, from the refusal of a medical institution to provide medical services to a person (patient). If he has the right to them, then we are talking about murder, or other crimes (for example, leaving a person in danger, resulting in his death).

To date, the vast majority of countries have legalized euthanasia in one form or another, consolidating the right of individuals to it.

Only a few countries reject the legality of this human right to euthanasia, considering any form of participation of third parties in actions or omissions aimed at causing death to be a crime. These countries include, in particular, the Russian Federation, the Republic of Belarus, Kenya, and Belize.

A significant number of countries have allowed any form of euthanasia (such as taking a person's life on their own, with the help of third parties, or by the actions (inaction) of said third parties). These countries include, for example, Belgium, the Netherlands, and Switzerland.

Some countries allow euthanasia, but only mainly in the form of assisted suicide of individuals, when the latter are assisted by third parties (for example, specialized medical institutions) in carrying out the act of suicide. Such countries (or parts of them) include some US states, Colombia, etc.

The right to euthanasia, which is enshrined in foreign countries, can be classified according to a number of other criteria.

For example, depending on the age of the subject (bearer) of the right to euthanasia, countries can be identified where it is allowed only for adults (Great Britain), or for people of any age (in particular, in Belgium, the minimum age when a child can exercise this right has been removed since 2014, and previously it was 12 years old)..

According to the criterion of mandatory conditions, without which this right cannot be realized, countries are divided into three groups: where these conditions are mandatory; states where their observance is desirable, but in certain cases may not be observed; countries where these conditions are limited to verifying the identity of a person wishing to exercise the right to euthanasia.

For example, in the Netherlands, according to the Act on Termination of Life at the request of a patient and on Assisted Suicide (which entered into force in 2002), medical institutions can euthanize a person if: the voluntary and balanced decision of this person to die is proven; he experiences suffering (physical or mental) for a long time, and they make him life is unbearable; he has objective information about his state of health; in his opinion, he has no other way out of the situation. In Switzerland, the conditions for the use of euthanasia are simpler (they come down to checking the patient's sanity and the voluntary nature of the decision).

At the same time, in some countries, the patient's will to commit euthanasia is not necessary in some cases. Some countries (mainly the Anglo-Saxon legal system) fix in their judicial precedents, on the one hand, the need for the patient's will and desire to exercise his right to euthanasia, and on the other hand, the possibility of not requiring proof of this to perform euthanasia (for example, when the patient is in a coma, and his consent is announced with the words relatives of the patient). This right was confirmed, in particular, by the British House of Lords in the case of Airedale National Health Service Trust v. Bland (1993), noting that the right to euthanasia can be exercised for any reason (rational and irrational, known and unknown reasons, etc.) or without them. ^{[7, pp. 106-120]}

According to the level of consolidation of the right to euthanasia, States can be divided into several groups: those countries where this right is enshrined in legislation (the majority of such countries); states where this right is recognized only by judicial authorities. This circumstance is due to the fact that the legislator, on the one hand, does not keep pace with law enforcement practice, and on the other hand, the fact that parliamentarians are afraid of a negative assessment of their activities by voters, a significant part of whom are still against the legalization of the right to euthanasia.

What are the real reasons why this somatic law is being promoted everywhere in the world?

The main reason is economic in nature. The population of countries that have legalized euthanasia is rapidly aging, and the treatment of the elderly and the disabled is becoming an unbearable burden for the economy. And promoting euthanasia reduces these costs. A number of reasons are religious in nature. In particular, some world religious denominations have approved euthanasia. For example, the Vatican has been actively blessing this form of suicide for over 10 years. ^[9] Some of the reasons are due to the general decline in morale and morals of the population, the dominance of the death cult, etc.

In our opinion, the legalization of euthanasia in Russia and the Republic of Belarus is unacceptable. Firstly, it contradicts the cultural traditions of our countries. Secondly, it violates the religious beliefs of the majority of believers. Thirdly, the right to euthanasia contradicts the constitutions of our countries and current legislation (in particular, various personal rights, such as the right to life).

Conclusion

In the course of our research, we have drawn a number of conclusions:

1. In the scientific legal doctrine and legislation of various countries, several points of view have emerged regarding the concept, content and features of the legal exercise of the right to euthanasia: a) as a right, the essence of which is to deprive oneself of life independently, but with the help of third parties; b) as a right through which a person is deprived of life by third parties persons, but of their own free will, made voluntarily and in a sane state; c) as a right, the essence of which is to deprive a person of life while observing the conditions specified in the legislation.

2. In our opinion, the right to euthanasia should be understood as the right to end a person's life by third parties, or with the help of third parties (without whom it could not be realized), carried out through the use of methods and conditions stipulated in current legislation, legal customs, or reflected in judicial precedents. Euthanasia should be distinguished from suicide, that is, from taking a person's life by committing certain actions (active suicide), or by inaction (resulting in death). We believe that the concept of assisted suicide, which is actively used in foreign legislation when describing the human right to euthanasia (and the methods of its commission), when a person takes his own life, but with the help of third parties, is correct only in cases where the lack of the above-mentioned assistance did not affect the likelihood of death. If death would not have been possible without the aforementioned assistance of third parties, then we are not talking about assisted suicide, but about murder.

3. Foreign legislation enshrining the right to euthanasia shows that foreign countries can be divided depending on the degree of consolidation of this right into: a) legally prohibiting any form of euthanasia, including the participation of third parties in associated suicides (for example, Kenya, Belize, the Republic of Belarus, the Russian Federation); b) countries where euthanasia is allowed, including the participation of third parties in associated suicides (in particular, the Netherlands, Switzerland); c) states where only the participation of third parties in associated suicides is allowed (Colombia, some US states).

According to the age criterion of the subject (bearer) of the right to euthanasia, countries can be divided into: a) where it is allowed for adult citizens (for example, Great Britain); b) where it is allowed for children (in a number of countries, in particular, Belgium, this right is reserved for children of any age).

According to the criterion of mandatory conditions, without which this right cannot be realized, States can be classified into: a) those where euthanasia is not possible without mandatory conditions (for example, Belgium); b) those where conditions may not always be met (in particular, the United Kingdom); c) those where There are no such conditions, or they are related only to checking the legal capacity and will of the legal entity (bearer) (for example, Switzerland).

According to the criterion of the source of the consolidation of this right, countries can be divided into those: a) where this right is enshrined in law (in particular, Canada, Switzerland, Belgium, the Netherlands); b) where this right is permitted by decisions of constitutional courts (for example, Germany, Colombia, Italy).

4. In our opinion, the reasons for the emergence and promotion of the above-mentioned right in the legislation and judicial practice of a number of foreign countries are, first of all: a) economic (in particular, the high cost of medical services for the treatment of incurable or terminally ill persons, an increase in their number due to an increase in the number of elderly and sick citizens, a decrease in the number of people of working age); b) cultural (a drop in the general level of culture and morals of the population); c) religious (a number of religious denominations, for example, the Vatican, have officially approved the right to euthanasia).

5. We consider it impossible to consolidate the right to euthanasia in the Russian Federation and the Republic of Belarus, as this: a) contradicts national cultural traditions; b) violates the religious canons of the majority of believers in these countries; c) contradicts and violates basic constitutional norms and principles, as well as human rights (in particular, the right to life, the principle of respect for human dignity from the beginning to the end of his life).