B>A short history of euthanasia laws, and their place in Turkish law
- Aysegil Demirhan Erdemir, M.D.
Eubios Journal of Asian and International Bioethics 11 (2001), 47-49.
Uludag University, Medical Faculty
Department of Medical Ethics
- Omur Elcioglu, Ph.D.
Osmangazi iniversity Medical Faculty,
Department of Medical Ethics,
Euthanasia has a very old history and this theme has been both opposed and defended since ancient ages. But humans have both some values with regard to our creation and some characteristics due to each person's position in society. The legal rules defend all these values. The characteristics with respect to human health are very important. Thus, Penal Codes and Civil Laws of various countries criticize euthanasia. But medicine has continuously developed and for this reason, persons who have defended this subject, have been criticized. Moreover, our traditions have criticized this condition.
The concept of euthanasia
Euthanasia comes from the Greek words, Eu (good) and Thanatosis (death) and it means "Good Death, "Gentle and Easy Death." Thus, this word has been used for mercy killing. That is, it means to kill a patient who is suffering extreme pain and agony and who has an incurable terminal illness. Thus, euthanasia is active death. Suetonius, a Roman historian, is the first writer who used the word, euthanasia, Furthermore, orthothanasia means passive death. In this method, the actions of curing the patient are never applied and his death is made easy in a passive form. The action of killing is applied by only the physician in the euthanasia. But in orthothanasia, the action of killing is not applied, but, passive actions are present in order to provide death. Namely, passive euthanasia is letting die by the doctor, others or by the patient himself. (26, 27).
The place of euthanasia in the history of medical ethics
The actions of easy death have been applied for hopeless patients who have been suffering extreme pain since ancient ages. However, this condition was generally criticized and a patient who was suffering extreme pain and who had an incurable terminal illness, must be treated. These actions were forbidden from time to time. In Mesopotamia, Assyrian physicians forbade euthanasia. Again in the old times incurable patients were drowned in the River Ganges in India (1, 9). In ancient Israel, some books wrote that frankincense was given to kill incurable patients.
In ancient Greece, suicide of the patient who was suffering extreme pain and had an incurable terminal illness was made easy and for this reason, the physician gave medicine to him. As Plato says "Mentally and physically ill persons should be left to death; they do not have the right to live." The first objection to euthanasia came from the Hippocratic Oath which says "I will not administer poison to anyone when asked to do so, nor suggest such a course." (8,13,19,30). In ancient Rome, euthanasia was a crime and this action was accepted as killing someone on purpose (intentionally).
In the Middle Ages in Europe, euthanasia was both criticized and defended. Christianity brought more respect to human beings; accordingly every individual has the right to live; only God creates human beings and death is the wish of God. Christian thinkers in the Middle Ages emphasized the following idea: God gives pain to pay back individuals sins; the more a person suffers the more his sins are forgiven. For this reason, it is not advisable to interfere with God's will. Mackinney (16) informed that a manuscript in Paris belonging to the 9 th century had the knowledge that a physician must heal the pain of his patient .
Islam focused on the issue of death very clearly. There are several ayets in the Koran about death. As in the Old and New Testaments, the Koran states that God is the only one who creates and the only one who takes it away. As it is seen, both the Christian and Islamic world criticized euthanasia and so, the words of Hippocrates about this theme became the main principles.
The first recommendation of euthanasia came in the 16th century by Thomas Morus; he said "when there is no cure and a patient suffers too much, the patient should be convinced to die. The patient should realize that his illness is incurable, he is a burden to others and his suffering causes pity for people around him." (20)
Moreover, the famous French surgeon Ambroise Pare was one of the pioneers of the Renaissance in the 16th century. According to him "Every individual has the right to live; only God creates human beings and death is the wish of God." (23).
Afterwards, the English philosopher Francis Bacon (1561-1621) had some ideas about this theme and he defended euthanasia in the 17th century. The first legal writings had some ideas about this theme and he defended euthanasia in the 17th century. The first legal source that reduced the punishment of a person who killed the patient with an incurable disease, was seen in Prussia in the XVIIIth century. This law was passed on 1st June 1794, and a person who killed a patient with an incurable terminal illness with a good intention, was punished as a guilty man. The physician, Paradys, emphasized the characteristics of euthanasia in the same century. Afterwards, academics such as, Reil, Marx and Ruhlfs described euthanasia as the birth of soul and explained that this subject must be investigated as an independent scientific branch, contrary to the ideas of some authors (6).
Moreover, in 1889, the German philosopher Nietsche said that terminally ill patients are a burden to others and they should not have the right to live in this world. A German lawyer, Jost, prepared a book called "Killing Law" in 1895. This scholar stressed that only hopelessly ill patients who wanted death, must be let die. According to Jost, life sometimes goes down to zero in value. Thus, the value of the life of a patient with an incurable illness is very little. In this state must help either the suicide of the patients, or must not permit the killing of the patient without the thoughts of a few physicians and the consent of the patient in order not to encourage every suicide. According to this scholar, some hesitations are present about the insane because they haven't the right of consent (14, 28).
Euthanasia was both criticized and defended in the 20th century. The efforts of legalization of euthanasia began in the USA. in the first years of the 20th century. The New York State Medical Association recommended gentle and easy death. Even more active euthanasia proposals came to Ohio and lowa state legislatures in 1906 and 1907. But, the government didn't accept these proposals. But, according to a questionnaire in 1937, 53% of American physicians defended euthanasia. Approximately 2000 physicians and more than 50 religious ministers were present among the members of the American Euthanasia Society. At that time, a majority of physicians in some American cites defended this subject. The American Euthanasia Society offered a law proposal to the American government in the same year. But, a result couldn't be obtained. According to this proposal, if a patient with an incurable illness was 21 years old and consented to this condition freely a committee of three persons would make some preparations. Two of them would be physicians and they would investigate the medical aspect of this subject. The third person would be a lawyer and they would asked the patient 3-4 days after his first decision and if the patient insisted the patient would be killed with an intravenous morphine injection. Thus, at that time, the USA Congress rejected active euthanasia. Today, euthanasia isn't accepted as a legal action in the USA (3,15).
The laws that accept euthanasia as a legal condition are present in two countries of the South America. According to Uruguay Penal Code, a Judge must not punish a person for mercy killing. A person must also be forgiven for this kind of killing in Colombia.
A law proposal that accepted euthanasia, was offered the government in Great Britain in 1939. According to this, a patient had to write his consent as a living will which must be witnessed by two persons. The will of the patient had to be accepted in the reports of two physicians. One of these physicians was the attending physician, the other one was the physician of the Ministry of Health. The will of the patient had to be applied after 7 days and most of the relatives of the patient had again to speak with him 3 days before the killing action. But this proposal wasn't accepted.
The reduction of punishment in mercy killing was accepted in Criminal Law in 1922 in Russia. But this law was abolished after a short while.
Some studies were made about euthanasia in Belgium. Various ideas were present in France. A French physician, called Dr.E.Forgue published an article, named "Easy death of incurable patients" in La Revue de Paris in 1925 and pointed out that killing an incurable patient wasn't a legal condition. But, Liege Bar said that killing an incurable patient with his free consent had to be forgiven. The court had to permit euthanasia in Germany. But, the members of Monistenbundes extremely defended euthanasia. One of the members, Roland Gerkan, prepared a law project about euthanasia while he was waiting for his death. Thus, the German thinker, Karl Binding and psychiatrist Hoche, recommended taking away" " worthless lives" of hopeless cases in 1920. Henkel and Kohlrausch criticized euthanasia and they were afraid of the misuse of this subject in 1935. Arndt informed that this subject had to be thought about in detail in order to reach a result in the Meeting of Lawyers in Konstanz in 1947. This subject was rejected in the decision of the Academy of Political and Ethical Sciences on November the 14 th, 1949. Because, the persons who accepted euthanasia, couldn't reach an agreement and this theme caused misuses. A woman physician, called Postma Van Boven defended this subject in Holland.
The Society of Euthanasia that assembled in Oxford in the last months of 1980, consisted of 200 members represented 15 countries and they highly defended this subject (17). The Netherlands has been considered as the most liberal European country in euthanasia during the 1990s, as widely discussed.
The legal problems of euthanasia
Euthanasia are divided into two kinds:
1) Humane euthanasia: Some conditions must be applied for humane euthanasia: a- The consent of the patient b- Suffering extreme pain and agony. c- An incurable terminal illness.
2) Criminal Euthanasia: This kind of euthanasia was applied in the form of collective killings especially in wars. In 1935,the German Nazi Party accepted euthanasia for crippled children and "useless and unrehabilitive" patients. In the Nuremberg Trial in 1946, it was learned that 275,000 people were killed in gas chambers. Anyone in a state institution could be sent to the gas chambers if it was considered that he could not be rehabilitated for useful work. The mentally retarded, psychotics, epileptics, old people with chronic brain syndromes, people with Parkinsonism, infantile paralysis, multiple sclerosis, brain tumours etc. were among those killed. The consent of the patient was absent in this type of euthanasia. This kind was applied by order (24).
Another common classifications of euthanasia is into active and passive forms. Active euthanasia is the killing by a doctor or others. Passive euthanasia is "Letting die" by the doctor, others or by the patient himself.
Euthanasia also may be voluntary or non-voluntary. Voluntary euthanasia is done with the patients wish and consent. Non-voluntary euthanasia is done without the patients wish and consent. For voluntary euthanasia (either active or passive), the following criteria should be present:
1- The patient has to give free consent without any outside influence.
2- The patient has to meet all criterias of competency.
3- The patient has to write it as a "Living Will" which must be witnessed and noterized.
4- The diagnosis of the condition should be correct.
5- The doctor should give complete information on diagnosis, prognosis, other possible ways of treatment and actually how mich the patient will suffer etc.
6- The patient's mental condition may change from time to time; this is called the slippery slope;
7- He should also be free to revoke his consent at any time.
Non-voluntary euthanasia is done in most of the following cases:
1- Newborn handicapped children (Down's syndrome, thalidomide babies, microcephalyhydrocephalus etc.)
2- Patient who are in coma or who are unconscious (as in Quinlan case).
3- Mentally impaired as in the case of mentally retarded or organic brain syndrome (15,17).
Let us consider some of the key thoughts that defend and criticize euthanasia.
The thoughts that defend the euthanasia
Some academics and physicians accept the application of euthanasia because of some causes. We can list them: a) The patient may want to die due to extreme pain. b) The patient may have an incurable terminal illnesses. c) The patient may have an incurable disability due to an accident. d) The patient may have a hopelessness because of these conditions. In doing do the persons who defend this subject, inform that euthanasia is different from the killing a man. The philosopher Franz Kafka had an incurable terminal illness and his physician wanted to let him die. According to an old thought, euthanasia and suicide are not different from each other and two conditions are applied for the same purposes. Thus, the patient applies the killing action himself in suicide. This action is done by the physician instead of the patient in euthanasia. Thus, euthanasia is applied for an incurable illness of the patient and this action must be accepted as a necessary goodness for the hopeless patient from the point of view of moral values.
Thoughts that oppose euthanasia
Many ideas that oppose this theme, are found, We can list these opposite thoughts: a) Medical science continously develops and everyday various techniques are discovered. So, an incurable illness can be treated in the future. Thus, until four decades ago, pneumonia was considered "a friend of the dying", it was the number one cause or death especially among old people. Today it is easily treated with antibiotics.
By artificial means, terminally ill and severely brain damaged patients may live in a comatose state for months or even years with no hopes of a recovery from their major illnesses. This is called physiological life, namely the person is kept alive with artificial extraordinary means while he stays unconscious. b) The diagnoses of a disease can be wrong. c) According to some lawyers, a patient can want death because of his psychological troubles and the consent of a patient cannot be a conscious will. d) To authorize the physician to use euthanasia can cause many misuses and this condition may cause the killing of crippled persons and patients with a curable illness. e) Many traditions oppose euthanasia. Some people with religious beliefs believe that only God has the right of killing and they don't accept this kind of application. f) A physician should always be a healing person (4,11,12).
Laws on euthanasia
The Penal Codes of European countries can be divided into two groups from the point of view of the punishment of the action of euthanasia. Of course, in addition, the Netherlands is an exception as it as passed a law not to punish euthanasia if strict criteria are met.
In the First Group, the penal codes of the countries in this group determine euthanasia as a different guilt and don't accept it as murder. These codes apply a light punishment for this action. These countries include Germany, Italy and Switzerland. Article 216 of the German Criminal Law accepts the punishment of 3 years in prison for euthanasia except for the insane.
The Old Italian Criminal Law in 1889 determined euthanasia as murder. Article 579 of the Italian Criminal Law in 1930 gives a punishment of 6-15 years. Article 101 of the Swiss Criminal Law accepts a punishment of 8 days to 2 years in prison if guilty of euthanasia. Moreover, the Danish Criminal Law (Article 239), the Austrian Criminal Law (Article 139), the Finnish Criminal Law (Article 21), the Greek Criminal Law (Article 300), the Icelandic Criminal Law (Article 213, the Norwegian Criminal Law (Article 235), the Dutch Criminal Law (Article 293) and the Polish Criminal Law (Article 227) accept light punishments for the action of euthanasia.
In the Second Group, we can see the countries who don't accept euthanasia. The punishments for murder are also applied for euthanasia. We can give French Criminal Law as an example.
Active euthanasia is punishable in Turkish Criminal Law (article 448) as a deliberate murder. Passive euthanasia is also punishable as neglect in Turkey by the same law (article 454). Moreover, article 13/3 and 14 of the Turkish Medical Ethics Regulation point out that a physician should only treat his patient.
Passive euthanasia became a popular subject after the mid 1960's when advanced technology became able te delay death (or extend life in dying patients). Physicians, churches, thinkers, humane and medical societies started defending passive euthanasia. Roman Catholicism, the most dogmatic religion, permitted passive euthanasia (1980), this was confirmed by the Vatican. During the same years the American Medical Association (AMA) also permitted passive euthanasia. This association statement says that the decision to cease extraordinary treatment is the decision of the patient or family.
Today, some relaxing (relieving) experiments have been applied to a patients with an incurable illness. According to Walter Cane: a) A physician should temporarily his patient by some methods.
b) The physician should avoid' everything that gives pain to the patients.
c) The morale of the patient should be in a good condition.
The nurses who are trained in an institute in regard to this subject, may help the physician. Both physician and these kinds of personnel provide a convenient room and bed for the patient. Moreover, the air in this room should be freshened. The bed should be clean. The beds should be automatically controlled. The patient should move comfortably in the bed. If spendinga long time in bed, bed-sores can occur. The patient may have pain because of these sores. Cleanliness and constructing the bed with a special material may prevent this condition. Drying of the tongue in these patients can be prevented with moisture. Moreover, sedatives, analgesics and narcotics can be administered to the patient. For example, opium is used for pain in the treatment of cholera, cancer and tuberculosis and this drug is accepted as the sacred iron of these diseases. Hyoscyamus also gives the same effects and decreases the suffering of the patient. This drug is used in liver diseases and hemoptysis. Moreover, lactucarius (the extract of lettuce) and some drugs (Conium maculatum etc.) are administered to hopeless patients. Psychological and religious suggestions, to provide silence and to give hope are important conditions for these kinds of patients (7,10,11,12).
Euthanasia is punishable in Turkish Law as a deliberate murder. This condition is opposite to religious and traditional thoughts. However, judges may acquit a doctor for euthanasia in some cases. We believe that an incurable illness can be treated in the future. So, a physician should heal his patient with an incurable illness. (18,21,22,29).
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