|Gonzaga Journal of International Law||
Cite as: Jonathan T. Smies, The Legalization of Euthanasia in the Netherlands, 7 Gonz. J. Int’l L. (2003-04), available at http://www.gonzagajil.org/.
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LEGALIZATION OF EUTHANASIA IN THE NETHERLANDS
Jonathan T. Smies*
On April 1, 2002, legislation regarding the practice of euthanasia and assisted suicide became effective in the Netherlands. With this new law the Netherlands earned the distinction of becoming the first nation in the world to legalize euthanasia. Although this event made many headlines, the practice of euthanasia in the Netherlands had already achieved a status of de facto legality through Dutch jurisprudence and prosecutorial policy. Even though it is in many respects simply a codification of past jurisprudential development, the law is significant inasmuch as it is a creature of politics. Additionally, the Dutch act is likely to exercise considerable influence internationally as other jurisdictions are likely to use it as a guide.
Part one of this paper offers a history of the development of Dutch euthanasia law and practice leading up to the passage of the law. The second section addresses the substance of the legislation itself. The third and final section considers the Dutch law in light of the European Convention on Human Rights. Before the historical development is addressed, some discussion of the terminology involved is necessary.
“Euthanasia” [euthanasie], in its strictest sense, is the intentional killing by a physician of a patient requesting death. According to prevailing opinion in the Netherlands, the term cannot include situations in which the patient has not requested to be killed. In this sense most observers claim that euthanasia is always voluntary. Actual practice belies this claim, as every year Dutch physicians intentionally kill hundreds of individuals incapable of manifesting a request. These deaths, lacking the voluntariness/request component, are classified in the literature as “termination of life without an explicit request,” and shall be considered below.
Another category of activity leading to death recognized in Dutch law is “assistance with suicide” [hulp bij zelfdoding]. The role of the physician in assisted suicide is to create a situation in which the patient may, by some act of his own, end his life. Although it formally occupies a separate position, assisted suicide is often treated along with euthanasia. Unless there is a relevant distinction to be made, this paper shall follow this convention and treat both under the loose heading of “euthanasia.”
Some deaths administered by physicians in the Netherlands are made without a patient’s explicit request. This is referred to as the “termination of life without an explicit request” [levensbeëindiging zonder uitdrukkelijk verzoek]. This most controversial form of life termination often involves the death of coma patients and newborn babies. The unease with which this type of behavior is received is chiefly attributable to the fact that an actual manifestation of patient volition in favor of death is neither possible nor sought. This category is further divisible into what we shall call “involuntary” and “non-voluntary” euthanasia. The former refers to cases where an individual is euthanized even though an express will to the contrary is known. “Non-voluntary euthanasia” is a situation in which the will of the individual is not ascertainable. This subdivision of the category of “termination of life without an explicit request” into two forms of “euthanasia” is necessary, even though the Dutch definition of “euthanasia” precludes such scenarios. The voluntary request of the patient, as noted above, is a, if not the, key constitutive element of what is called “euthanasia” in the Netherlands. Although proponents of euthanasia prize voluntariness, the existence of this category of life termination (which is readily conceded by proponents of euthanasia), demonstrates that it is not supreme.
Finally, all three of these behaviors can be subsumed into the larger category of “medical decisions concerning the end of life” [medische beslissingen rond het levenseinde] (MDEL). Besides including euthanasia, assisted suicide, termination of life without an explicit request, it also embraces “normal medical practice” [normaal medisch handelen], and refusal of medical treatment that results in death. “Normal medical practice” encompasses two types of behavior: administering pain relief even though the dosage used is likely to hasten death and not initiating (or terminating) life-prolonging treatment in instances when it is “medically futile” [medisch zinloos]. The former is sometime mentioned in the literature as “passive euthanasia,” and is not the focus of this paper. With some conception of the terminology, we now turn to the history of the law and practice of euthanasia in the Netherlands.
I. A HISTORY OF DUTCH EUTHANASIA LAW AND PRACTICE
The topic of euthanasia is not new to Dutch law and society. For well over one hundred years the Netherlands has had legislation outlawing the practice. However, the post-war experience has been one in which euthanasia and assisted suicide came to be re-examined in the courts of law and public opinion. The new law enacted by Parliament is a direct descendant of prior jurisprudence. It may even be said that the recent legislative action is really nothing more than an adoption of the standards previously developed in the case law. What follows is a history of the way in which this development in the law and society has run, beginning with past legislation on the subject.
A. The Criminal Code of 1886
The Criminal Code [Wetboek van Strafrecht] of 1886 replaced an older Napoleonic code. The Code provided two sections which explicitly made both euthanasia and assisted suicide criminal acts. Article 293 prohibited euthanasia: “A person who takes the life of another person at that person’s express and earnest request is liable to a term of imprisonment of not more than twelve years or a fine of the fifth category.”  This article was introduced into the Criminal Code in 1886 to dispel any doubts as to the legality of killing a person requesting death. Although the potential maximum fine for this offense of “killing upon request” is the same as that for murder, the maximum prison term is eight years less than the maximum twenty the Code allows for murder.
Besides making euthanasia illegal, the 1886 Code also created criminal liability in cases of assisted suicide. Article 294 provided:
A person who intentionally incites another to commit suicide, assists in the suicide of another, or procures for that other person the means to commit suicide, is liable to a term of imprisonment of not more than three years or a fine of the fourth category,  where a suicide ensues.
Although understood as a less grievous offense under the Code, assisted suicide was prohibited along with euthanasia.
Finally, although not explicitly concerned with the subject, Article 40 has proven to be crucial to the development of the law in this area. It provides that: “a person who commits an offense as a result of a force he could not be expected to resist is not criminally liable.” This superior force [overmacht] is a defense of necessity. It was this defense of necessity found in Article 40 that courts would use to relieve physicians in violation of Articles 293 and 294 from criminal liability.
B. The Pre-War Period
The sections of the 1886 Criminal Code relating to euthanasia and assisted suicide were little applied in the pre-war period. There are only three cases before 1945 in which Article 293’s prohibition of killing on request was relevant. In this same period there are no known cases involving assisted suicide under Article 294. The newly adopted Criminal Code’s prohibitions of euthanasia and assisted suicide were seldom put to use prior to the end of the Second World War.
The dearth of prosecution for euthanasia and assisted suicide in these early years could be attributable to either a nascent prosecutorial policy against pursuing such convictions, or simply a relative lack of these life-terminating activities actually occurring in the Netherlands. The best explanation is probably the latter of the two, as there was very little interest in euthanasia and assisted suicide in the pre-war period. It has been noted that early interest in these practices was greatest in England and the United States, where voluntary euthanasia societies were formed in the 1930s. Additionally, the United States was home to early legislative efforts to legalize euthanasia, along with a significant public opinion in favor of the practice. The Netherlands did not see the founding of a pro-euthanasia society until 1973, and there were no early efforts to adopt legislation legalizing the practice. The rise of the Nazi Party in Germany and the eventual brutal occupation of the Netherlands from 1940 to 1945 might explain some reluctance amongst the Dutch in this period to show any interest in euthanasia. Even before the ascendancy of National Socialism—from the 1920s onwards—the medical community of her German neighbor had been contemplating and engaging in euthanizing “life unworthy of life” [Lebensunwerten Lebens]. Whatever the reason, there was relatively little concern in the Netherlands on the issue of euthanasia and assisted suicide until the close of the Second World War.
C. The Case Law
1. Early Cases
In 1952 a doctor from Eindhoven was tried for killing on request. The doctor had acceded to the request of his brother, who was suffering from advanced tuberculosis. In his defense the doctor told the district court [arrondissementsrechtbank] that his conscience had compelled him to act in accordance with his brother’s wish to die. Although he was found guilty of killing on request under Article 293, the court’s sentencing was drastically more lenient than the maximum of twelve years imprisonment contemplated by the Code. The doctor was only given one year of probation. The court imposed the sentence it did “because, as far as the Court is aware, this is the first time that a case of euthanasia has been subject to the ruling of a Dutch judge.” This sentencing generated very little commentary or controversy.
There was a much more pronounced reaction to a 1969 decision of the Court of Appeals, Amsterdam, which held that before terminating life-support the physician must consult with other colleagues and discuss the situation with the family of the patient. The case involved Mia Versluis, a twenty-one year old woman, who was comatose and kept alive by artificial respiration. The anesthesiologist responsible for the initial operation, a foot operation from which the patient never regained consciousness, recommended cessation of treatment, and the father of the patient objected and sought to prevent his daughter from being removed from treatment. Although the doctor never removed the breathing-tube, the Court of Appeal found the doctor guilty of behavior that undermines confidence in the medical profession, and fined him f 1,000. The ruling in the case of Versluis ordered the decision to be published in the Official Gazette, indicating the intention to further public debate on the issue.
2. Postma: Adoption of Conditions of Average Medical Practice
The next significant case to appear on the jurisprudential landscape was the 1973 decision in Postma. Ms. Postma was a doctor who terminated the life of her 78 year-old mother, who had been living in a nursing home and recovering from a cerebral hemorrhage. The deceased had made her desire to die known to both her daughter and the nursing facility staff. At the trial in Leewarden’s District Court, the Medical Inspector gave testimony indicating that average medical practice in the Netherlands did not support the notion that a patient’s life must be prolonged in every possible way. The inspector claimed that it was widely accepted practice to administer pain relief which ran the risk of causing the patient to die sooner, so long as certain conditions were met: the patient must be incurably ill; the suffering must be mentally or physically unbearable; there is an expressed wish to die; the patient is in the terminal phase of illness; and the person who accedes to the request is a doctor (preferably the doctor responsible for treatment). The Court adopted all but one of the inspector’s conditions: it did not accept the proposition that the patient must be in the terminal phase of illness. Although she met all of the other conditions, the Court held that Postma’s choice of an injection that was immediately lethal was not a reasonable means of ending the patient’s suffering. She was given a conditional jail sentence of one week along with a year’s probation. Postma triggered significant attention to the issue of euthanasia by the Royal Dutch Medical Association [Koninklijke Nederlandse Maatschappij Ter Bevordering Der Geneeskunst (KNMG)], as its journal Medisch Contact covered the decision and printed a general discussion about euthanasia. Public debate also increased on the issue, as the word previously rarely utilized, “euthanasia,” was increasingly used in public discourse. Postma’s significance lies in the fact that it was the first decision that, although not speaking directly to euthanasia per se, hinted that doctors who administer pain relievers in quantities likely to lead to death might escape criminal liability if they adhere to certain conditions.
3. Wertheim: Conditions to Avoid Criminal Liability and Prosecutorial Policy
In 1981 charges were brought against Ms. Wertheim, a euthanasia activist accused of assisting in the death of a 67 year-old woman suffering from various maladies. In its opinion, the Rotterdam District Court noted that suicide is sometimes acceptable, and the assistance of others is occasionally for some to end their own lives. The Court dispatched with the fact that such behavior is explicitly criminalized in Article 294 of the Criminal Code by creating a set of requirements, which if followed, might justify assisted suicide. These requirements are divisible into conditions on the patient and those assisting him. The Wertheim Court required the following relating to the patient: the presence of unbearable physical or mental suffering; that this suffering and the desire to die were enduring; that the decision to die was made voluntarily; that the patient was well informed of his situation and alternatives, was capable of and actually did weigh the various considerations; that there were no alternative means to improve the situation; and that the person’s death did not inflict any unnecessary suffering on any third party. The requirements as to the assistance itself were as follows: the decision to assist must not be made by one person alone; a doctor must be involved; and both the decision and the assistance itself must be in accordance with utmost care. Applying these newly adopted requirements to the actions of Wertheim, the Court ruled that the defendant failed to conform to them, and found her guilty of assisted suicide under Article 294. The penalty imposed was a conditional sentence of six months subject to one year of probation, along with two weeks of house arrest. The Court’s decision not to impose a jail sentence was owed to the fact that Ms. Wertheim, at age 76, was too frail to handle the mental and physical burden of prison life.
The prosecution in Wertheim had been seeking a conviction for murder, and not being satisfied with the conviction or the sentence imposed, initially filed an appeal. The appeal was later dropped after consultation with the Procurator-General [Procureur-Generaal] of The Hague Court of Appeals and the Dutch Minister of Justice. With a confusion exposed as to how exactly prosecutions in such cases would advance, the national College of Procurators-General [College van Procureurs-Generaal] decided that uniformity was in order. The College declared that every case of euthanasia or assisted suicide that a prosecutor became aware of must be referred to the College for a determination of whether to prosecute. It announced that the guidelines it would apply in deciding whether to prosecute Article 293 and 294 cases were the conditions articulated in Postma and Wertheim. This intervention of the College of Procurators-General was a significant move in settling the matter of when an individual otherwise in violation of the Criminal Code’s prohibitions on euthanasia and assisted suicide might be justified in his action and not subject to prosecution.
Prosecutorial decision-making is centralized in Dutch criminal law, as the College sets policy that binds all prosecutors lower in the hierarchy of the Public Prosecution Service [Openbaar Ministerie]. Some Continental systems, such as Germany, require the prosecution to prosecute every case presented. Prosecutors in the Netherlands are not so bound, as the “opportunity principle” [opportuniteitsbeginsel] of prosecution governs. This allows the prosecutor complete discretion whether to prosecute a given case. In cases of euthanasia or assisted suicide, the College was free to simply articulate the set of conditions under which no prosecution would be brought. Thus, although euthanasia and assisted suicide remained formally illegal under the Criminal Code, after the College of Procurators-General’s action in the wake of Wertheim, physicians adhering to the judicially enumerated requirements were given a virtual guarantee of being free from future prosecutions.
What has escaped the commentary on this occurrence is the fact that this development was wholly outside of any appreciable form of democratic control. The College is the governing body of the Public Prosecution Service, and operates under the direction of the Minister of Justice, who is appointed by Royal decree and responsible to both houses of Parliament. The Minister of Justice has the power to prosecute even against the advice of the College, but this is a rare occurrence. The official policy of the College, and therefore of all prosecutors in the Netherlands, is set by a majority of the members. Thus, three un-elected Procurators-General have the power to effectively set national policy on any one of a number of issues relating to the application of the Criminal Code. This is how the “policy of tolerance,” the policy in which behavior that is formally illegal is tolerated if undertaken in accordance with certain standards, developed and was incorporated into Dutch Criminal Justice. The standardization of non-prosecution of euthanasia and assisted suicide cases meeting predetermined conditions is but one fruit of the tolerance policy. Two other notable areas in which the College introduced the policy of tolerance include soft drugs and prostitution. The policy of tolerance was initially conceived as a temporary measure to square cultural changes with the letter of the Criminal Code. It was assumed that such policies would be democratically legitimized later by legislative action. However, the policy that was intended as a stop-gap has been retained on controversial social issues—issues that Parliament lacks the political will to address.
4. Schoonheim: The Supreme Court on Euthanasia and Conflicting Duties
The Dutch Supreme Court first ruled on the issue of euthanasia in the groundbreaking Schoonheim case. Schoonheim, a general practitioner, performed euthanasia on a 95 year-old patient who had requested such treatment. At trial in the Alkmaar District Court, the defendant offered defenses of “absence of substantial violation of the law” [ontbreken van de materiële wederrechtelijkeheid] and overmacht. The trial court accepted the first defense, and the prosecution appealed to the Court of Appeals, Amsterdam. The appellate court rejected all of the defenses, and found Schoonheim guilty of a violation of Article 293 but did not impose any punishment. The Supreme Court affirmed the lower court’s rejection of the defense based on “absence of substantial violation,” but held that the Article 40 defense of necessity had been inadequately considered by the lower courts.  The verdict was vacated and referred to the Court of Appeals at The Hague.
The Supreme Court offered some guidelines for how the justification of necessity was to be considered. The Court noted, “[o]ne would have expected the Court of Appeals to have considered … whether, according to responsible medical opinion, subject to the applicable norms of medical ethics, this was, as claimed by the defendant, a situation of necessity.” The “necessity” referred to by the Court is based on the defendant’s argument that he was presented with a conflict of duties (one duty to obey Article 293 and the competing duty to relieve the suffering of his patient). Reference was also made to “unbearable suffering,” “loss of personal dignity,” and the possibility that the patient might not be able to “die in a dignified manner.” The Court set “responsible medical opinion” tempered by the “norms of medical ethics” as the standard by which courts should decide whether physician action was justified by necessity. This deference to the medical community is remarkable, as “the Court appears to abdicate to medical opinion the power to determine the circumstances in which killing attracts the necessity defense.” The decision of the Supreme Court is also remarkable inasmuch as the allowance for the necessity defense was traditionally limited to situations in which the preservation of life was the goal. Finally, the judgment is curious inasmuch as there is an absence of any discussion of why exactly the duty to relieve suffering trumps one of the traditional duties of the doctor—the duty not to kill.
The Hague Court of Appeals, after obtaining more evidence, accepted the defense of necessity and acquitted Schoonheim. Schoonheim represents the first case in which no criminal liability was ascribed to a physician who had committed euthanasia. Physicians engaging in euthanasia would now have available the defense of necessity.
5. Pols: The Supreme Court Elaborates
The second occasion on which the Supreme Court addressed euthanasia was the Pols case. The defendant Pols was a psychiatrist who in 1982 killed her 73 year-old friend who had been suffering from multiple sclerosis and expressed a wish to die. Pols offered two defenses: “absence of substantial violation of the law” and overmacht. The Groningen District Court rejected both, and in so doing interpreted the former as an invocation of “medical exception,” which although theoretically available, was inapplicable in the current case, as Pols did not consult with another doctor. The district court found the defendant guilty, but gave no punishment. The Court of Appeals at Leeuwarden rejected all defenses, and increased the sentence to two months of jail and two years of probation. This decision was appealed to the Supreme Court, which held that there was no “medical exception” defense available in euthanasia prosecutions. The high court also noted that there was no social consensus that euthanasia is a form of “normal medical practice” capable of being understood within the “medical exception.”
In the first two cases in which euthanasia was considered by the Dutch Supreme Court, the grounds of defense available to a charge of committing euthanasia under Article 293 became clear. Schoonheim held that physicians could avail themselves of the defense of overmacht as justification of necessity based on a conflict of the duties of a physician. However, the defense of “absence of substantial violation of the law” was precluded. Pols made clear that physicians could not successfully offer a defense of “medical exception.” By 1987 the contours of what defense might be available to physicians who failed to comply with the requirements adopted by the College of Procurators-General were clear.
6. Admiraal: Acceptance of the ‘Requirements of Careful Practice’
In 1984 the Executive Board of the Royal Dutch Medical Society [Koninlijke Nederlandse Maatschappij Ter Bevordering Der Pharmacie] issued a report in which the permissibility of euthanasia itself was not addressed, but rather under what conditions it would be acceptable. The report claimed that euthanasia performed by a physician should demonstrate care to satisfy the five “requirements of careful practice:”
1. the request for euthanasia must be voluntary;
2. the request must be well-considered;
3. the patient’s desire to die must be a lasting one;
4. the patient must experience his suffering as unacceptable for him;
5. the doctor concerned must consult a colleague.
The law would prove to show great deference to these requirements.
A year after these requirements were promulgated, the case of Admiraal was occasion for judicial adoption of the “requirements of careful practice.” The District Court for The Hague acquitted Admiraal, an anesthesiologist who had put to death a patient with multiple sclerosis. The case set the precedent that doctors in compliance with the “requirements of careful practice” will not be convicted for performing euthanasia. Reacting to the decision, the Minister of Justice made it clear that no prosecution would be sought for doctors in compliance with the requirements. In addition, subsequent case law answered the question of whether all five of the requirements always had to be fulfilled in order to prevent prosecution. In 1988 the Supreme Court upheld a decision of the Arnhem Court of Appeals that held that failure to consult another doctor alone is insufficient grounds for prosecution.
7. Chabot: Patients with Non-Somatic Suffering Qualify
One of the requirements of careful practice, under which physicians performing euthanasia and assisting with suicide were assured freedom from prosecution, required that the patient be suffering. Doctors with patients who were suffering physically were not subject to prosecution, but it was not yet clear whether they would be treated the same in cases involving patients with non-somatic suffering. The psychiatrist and general practitioner of a woman suffering from depression decided to assist the woman with suicide. Although they were acquitted, the Rotterdam District Court noted that in cases of non-somatic suffering the consultation of another independent physician is preferable. In another case, the Almelo District Court held that although the suffering of a 25 year-old anorexia nervosa patient was not primarily physical, it was unbearable and therefore sufficient to dismiss the indictment against the pediatrician who had assisted in the patient’s suicide.
The Supreme Court addressed the issue of non-somatic suffering in the landmark 1994 case of Chabot. Dr. Boudewijn Chabot was a psychiatrist who supplied lethal drugs to a patient who had recently experienced a series of traumatic events that had left her with no desire to live. Although offered treatment for her condition, the patient refused. The Court began by affirming its earlier holdings that euthanasia and assisted suicide can be justified if:
the defendant acted in a situation of necessity, that is to say … that confronted with a choice between mutually conflicting duties, he chose to perform the one of greater weight. In particular, a doctor may be in a situation of necessity if he has to choose between the duty to preserve life and the duty as a doctor to do everything possible to relieve the unbearable and hopeless suffering of a patient committed to his care.
The prosecution argued that the defense of justification should not be available to doctors who assist with suicides in cases where the suffering is non-somatic and the patient is not in the “terminal phase.” The Supreme Court rejected this contention, and held that in such cases the justification can be rooted in the autonomy of the patient herself. The Court noted that, “the wish to die of a person whose suffering is psychic can be based on an autonomous judgment.” However, since Chabot did not consult an independent medical expert, who had himself examined the patient, and such evidence of consultation is essential in cases of non-somatic suffering, the Court found him guilty of assistance with suicide. No punishment was imposed.
Chabot represents a significant extension of the Dutch Supreme Court’s willingness to rely upon the norm of individual autonomy. Although always one of the norms justifying euthanasia and assisted suicide in the jurisprudence, autonomy had not previously been relied upon to the extent the Court relied upon it in Chabot.
8. Prins and Kadijk: Termination of Life Without Explicit Request Permitted
As noted above, in addition to euthanasia and assisted suicide, there exists another form of physician-administered death in the Netherlands, termination of life without an explicit request. This is simply euthanasia without the voluntariness component. Such terminations can be either involuntary or non-voluntary. The former refers to cases where an individual is euthanized even though an express will to the contrary is known. “Non-voluntary euthanasia” is a situation in which the will of the individual is not ascertainable or has not been made manifest. The jurisprudence addressing this category has been primarily concerned with cases of infants with birth defects.
Prins was a 1995 case in which a gynecologist stood trial for the murder of a three day-old baby girl with spina bifida. Surgery on the baby’s condition was deemed futile, and since the infant was suffering greatly, and it was believed that nothing could be done to relieve the pain, the doctors and parents decided to administer a lethal injection. The defendant offered three defenses: current understanding of the phrase “take a person’s life” [van het leven berooft] used in Article 289 of the Criminal Code does not apply to a life-terminating action by a physician in the context of careful medical practice; the action was done in accordance with medical-professional standards (the medical exception); and necessity. The Alkmaar District Court rejected the first two defenses, but held that the defense of necessity could be accepted in cases of active termination of life without an explicit request, as long as a series of requirements were met. The Court found Prins’ defense of necessity acceptable for the following reasons:
a. the baby’s suffering had been unbearable and hopeless, and there had not been another medically responsible way to alleviate it;
b. both the decision-making leading up to the termination of life and the way in which it was carried out had satisfied the ‘requirements of careful practice’;
c. the doctor’s behavior had been consistent with scientifically sound medical judgment and the norms of medical ethics;
d. termination of life had taken place at the express and repeated request of the parents as legal representatives of the newborn baby.
In both Prins and Kadijk the courts made two assumptions crucial to the exculpatory decisions. The first is that someone with a “short” life expectancy can legitimately be killed. The short life expectancy of the suffering infant somehow made the killing more acceptable to the courts. It seems that answering the question of what sort of life expectancy is “short” will always yield an arbitrary answer. After all, the rate of death for human beings remains at 100%; death, be it sooner or later, remains the lot of us all.
A second assumption underlying both decisions is that there is a moral equivalence between a decision not to treat when death is probable and intentionally killing the individual. However, as Jochemsen notes:
such an equation misunderstands the causality between the nontreatment decision and death. Such an equation would only be valid if medicine could completely control the situation of the patient. Such control does not exist, nor is it desirable.
Prins and Kadijk signaled a change in Dutch law, as the normal requirement that euthanasia be voluntary and at the request of the patient was not followed, resulting in the acceptance of non-voluntary euthanasia.
9. Sutorius: The Suffering Requirement and “Tiredness of Life”
10. Van Oijen: The Boundary Between Euthanasia and Palliative Treatment
11. The Case Law in Perspective
D. The Frequency of Euthanasia and Related Practices
2. Incidence of Euthanasia and Related Practices 1990-1995
3. 1995 Physician Attitudes and Practices
4. Psychiatric Practice and Physician-Assisted Death
E. Legislative Developments Prior to the New Law
1. The Law on Notification
II. The New Dutch Law Legalizing Euthanasia
A. Early Legislative Proposals
B. How a Euthanasia Bill Became a Law
C. The Text of the Act
1. Amendments to the Criminal Code
1. A person who terminates the life of another person at that other person’s express and earnest request is liable to a term of imprisonment of not more than twelve years or a fine of the fifth category.
2. The offence referred to in the first paragraph shall not be punishable if it has been committed by a physician who has met the requirements of due care as referred to in Article 2 of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act and who informs the municipal autopsist of this in accordance with Article 7 second paragraph of the Burial and Cremation Act.
Article 294 was also amended, now reading as follows:
1. A person who intentionally incites another to commit suicide, is liable to a term of imprisonment of not more than three years or a fine of the fourth category, where the suicide ensues.
2. A person who intentionally assist [sic] in the suicide of another or procures for that other person the means to commit suicide, is liable to a term of imprisonment of not more than three years or a fine of the fourth category, where the suicide ensues. Article 293 second paragraph applies mutatis mutandis.
In light of these amendments to the Criminal Code, physicians who engage in euthanasia or assisted suicide can avoid criminal sanction if they act in accordance with the requirements of due care and report the death in a proper manner.
2. The Requirements of Due Care
1. The requirements of due care, referred to in Article 293 second paragraph Penal Code mean that the physician:
a. holds the conviction that the request by the patient was voluntary and well-considered,
b. holds the conviction that the patient’s suffering was lasting and unbearable,
c. has informed the patient about the situation he was in and about his prospects,
d. and the patient hold the conviction that there was no other reasonable solution for the situation he was in,
e. has consulted at least one other, independent physician who has seen the patient and has given his written opinion on the requirements of due care, referred to in parts a – d, and f. has terminated a life or assisted in a suicide with due care.
3. Oversight: The Regional Review Committees
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act exempts physicians acting along the lines of the requirements of due care from prosecution under articles 293 and 294 of the Criminal Code. However, one wonders how exactly public prosecutors can be assured that all of the exculpatory conditions are met. In the establishment of the Regional Review Committees for Termination of Life on Request and Assisted Suicide [Regionale Toetsingscommissies voor Levensbeëingiging op Verzoek en Hulp bij Zelfdoding], the Act provides a framework for oversight of physician decisions to terminate life.
The composition of the regional review committee is addressed in the second paragraph of Article 3.
A committee is composed of an uneven number of members, including at any rate one legal specialist, also chairman, one physician and one expert on ethical or philosophical issues. The committee also contains deputy members of each of the categories listed in the first sentence.
The Dutch word rendered “philosophical issues” in English is zingevingsvraagstukken, which “is used to describe the discussion on the prerequisites for a meaningful life.” Ministers appoint the members of the committee for a renewable term of six years. After having been given the report of the physician, the committee makes a determination of whether or not the requirements of due care were kept. The committee can ask the physician to provide written or oral supplements to the report, and can also conduct an independent investigation of other individuals. The committee must give the physician a written opinion within six weeks of receiving the physician’s original report. If the opinion of the committee is that the physician was in conformity with the requirements of due care, no further action is taken. However, if the committee’s opinion is that the requirements have been violated, the committee must inform the College of Procurators General and the regional health care inspector of this fact. Any information gathered by the committee in its investigation must be surrendered to the public prosecutor upon request. Finally, the committees must provide the Ministers with an annual report detailing: the number of cases of termination of life upon request and assisted suicide in which the committee has rendered an opinion; the nature of these cases; and the considerations involved and opinions.
Criticism can be made of the effectiveness of this system of oversight. One critic notes that the oversight system greatly hampers the prosecutor’s ability to monitor physician conduct, as a favorable committee ruling precludes any further prosecutorial activity.
Under the amendments to the Criminal Code in the Act, physicians who terminate life upon request or assist in a suicide will be free from criminal liability if they adhere to certain requirements of due care. The primary means of ensuring compliance is through the regional review committees, which review the reasoned report of the attending physician and the municipal coroner’s report. If the committee issues an opinion that the requirements of due care were violated, the matter is referred to the College of Procurators General and the regional health care inspector. The ability to pursue criminal prosecution rests with the former, which will also create national uniformity in prosecution standards. With an understanding of the background to and substance of the new Dutch law, consideration of its validity under the Convention for the Protection of Human Rights and Fundamental Freedoms is now appropriate.
III. THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The Netherlands is party to international agreements that restrain Parliament’s ability to enact legislation that may violate various rights of individuals within its territory. Significant for present purposes is The Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), a document to which the Netherlands is an original signatory. What follows is an analysis of the validity of the new law in light of the ECHR.
B. Article 2—the Right to Life
Article 1 of the ECHR is entitled “Obligation to protect human rights,” and reads: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”  The first right enumerated in Section I is that of the right to life. Article 2, “Right to life,” provides:
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection. 
The positioning of this right at the top of the list of all other enumerated rights in the Convention indicates the gravity of the right to life in the minds of the drafters—one must have a right to live before any other rights can be exercised. Unlike many other rights listed in the document, there can be no derogation in war or time of public emergency from the obligation in Article 2 to protect the right to life. Also, the European Commission of Human Rights has held that the few enumerated situations listed in which deprivation of life does not violate Article 2 are exhaustive.
The significance of the right to life is further illustrated by the extent to which States have a positive duty to protect, and not merely abstain from violating, the right. Article 3 of the United Nations Universal Declaration of Human Rights reads: “Everyone has the right to life, liberty and security of person.” The ECHR somewhat unexpectedly varies from this course with the opening sentence of Article 2: “Everyone’s right to life shall be protected by law.” The language of the first sentence of Article 2 with its mandatory “shall” indicates that all Contracting States must ensure that they possess an effective legal regime that protects the right to life. States who fail to establish and execute laws that protect life contravene Article 2, and as a result, are not in compliance with the obligation imposed under Article 1. The position of the right to life vis-à-vis other rights, the fact it cannot be derogated from the exhaustive nature of the exceptions to the right, and requirement that States effectively protect the right to life all indicate that the right to life is of fundamental importance to the entire scheme of the ECHR.
The relevant question for present purposes is whether the Netherlands, in legalizing euthanasia and assisted suicide, has contravened this most foundational right enshrined in Article 2 of the ECHR.
C. The Council of Europe Parliamentary Assembly’s Recommendation 1418
The issue of the permissibility of euthanasia and assisted suicide under Article 2 has yet to be directly addressed by either the European Commission or Court of Human Rights. Responding to the introduction of the legislative proposal in the Dutch Parliament, the Parliamentary Assembly of the Council of Europe adopted Recommendation 1418 (1999), Protection of the Human Rights and Dignity of the Terminally Ill and Dying. In the recommendation, the Parliamentary Assembly forcefully declared that euthanasia and assisted suicide were violations of Article 2.
The document begins by observing that protecting human dignity is the raison d'être of the Council of Europe. Next, there is a brief discussion of some of the problems and potential threats to human dignity presented by the advent of new medical techniques. There are other threatening factors identified, such as: poor access to palliative care; neglect of psychological and spiritual needs; use of extraordinary measures to artificially prolong the life of a patient without their consent; patient fears of losing autonomy and becoming burdensome to others; and insufficient allocation of resources to help the dying. The heart of the recommendation is the last section, which recommends that the Committee of Ministers encourage the Member States to effectuate a three-pronged approach to respecting and protecting the dignity of the terminally ill and dying. The three aspects of this protection are as follows: recognition of right to comprehensive palliative care; preserving the patient’s right to self-determination; and by “upholding the prohibition against intentionally taking the life of terminally ill or dying persons.”
Although self-determination is cited by the recommendation as worthy of protection, it is circumscribed by other considerations, as it must be ensured that “the expressed wishes of a terminally ill or dying person with regard to particular forms of treatment are taken into account, provided they do not violate human dignity.” This provision notwithstanding, it is in subsection (c) of section 9 that the Assembly’s opposition to euthanasia and assisted suicide is brought into boldest relief: The Assembly recommends that the Ministers encourage States to respect and protect the dignity of terminally ill or dying persons
c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:
i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that "no one shall be deprived of his life intentionally";
ii. recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person;
iii. recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.
The Parliamentary Assembly’s interpretation of Article 2 is that the practice of euthanasia and assisted suicide is incompatible with the ECHR. Further, the autonomy of the patient can never represent a legal justification for the party responsible for bringing about the death.
The Assembly forwarded Recommendation 1418 to the Committee of Ministers. The Ministers issued a brief interim reply on November 7, 2000. The reply did little more than note the divergence in the laws of the various States relating to advance refusals of treatment and euthanasia and indicate that the Ministers instructed the Steering Committee on Bioethics to gather information and the Steering Committee for Human Rights to formulate an opinion on the recommendation. A more lengthy reply was forthcoming from the Committee of Ministers on April 8, 2002. In this document the Ministers claimed that they were, considering the lack of case law from the Court, unable to render an opinion on some of the more significant issues raised by the recommendation. The reply identifies three “very complex questions of interpretation” best left to the Court:
the question of interplay and possible conflict between the different relevant rights and freedoms and that of the margin of appreciation of the States Parties in finding solutions to reconcile these rights and freedoms; the question of the nature and the scope of positive obligations incumbent upon States Parties and which are linked to the effective protection of rights and freedoms provided by the Convention; the question of whether the relevant provisions of the Convention must be interpreted as also guaranteeing “negative rights,” as the Court has ruled on certain Articles of the Convention, as well as the question of whether an individual can renounce the exercise of certain rights and freedoms in this context . . . 
The ambitious Recommendation 1418 of the Parliamentary Assembly did not meet its goal of convincing the Committee of Ministers to encourage States to conform to an interpretation of Article 2 that prohibits euthanasia and assisted suicide. The Ministers drew attention to the fact that the European Court of Human Rights has yet to provide the case law necessary to determine the role of Article 2 and euthanasia and assisted suicide. The time is now ripe for the Strasbourg organs to provide some guidance in this area.
D. Strasbourg Case Law on Article 2 and Euthanasia
For many years the European Court of Human Rights had offered little assistance in determining whether Article 2 proscribes legislation sanctioning euthanasia and assisted suicide. However, the recent judgment in Pretty v. The United Kingdom, while not offering a definitive answer to this question, does indicate that the Court considers the interpretation offered in Recommendation 1418 (1999) as worthy of endorsement. 
Prior to Pretty, the Strasbourg organs had a few occasions to visit issues of at least tangential relevance to the question of the role of Article 2. In Widmer v. Switzerland the Commission took up the question of whether Article 2 requires States to enact legislation making passive euthanasia punishable by law. The petitioner claimed that Switzerland, for its failure to make passive euthanasia illegal, was in violation of the Article. The Commission found that although the Swiss legislature did not outlaw passive euthanasia, it did provide for criminal liability in cases of death caused by negligence. This was enough to prevent a finding of contravention of Article 2. Widmer did not directly address whether States are under a duty to protect individuals against passive euthanasia per se.
The question of whether the State is obliged under Article 2 to make reasonable efforts to prevent individuals in its custody from committing suicide was raised in Keenan v. United Kingdom. The applicant claimed that the United Kingdom’s failure to take appropriate steps to protect the life of her deceased son, who had suffered from a mental illness and died of suicide while in prison, was a violation of the article. The United Kingdom argued in response that any duty to protect an individual from himself would be inconsistent with the norms of autonomy and individual dignity that underlie the ECHR. The Court began its analysis by noting that Article 2 not only requires States to refrain from unlawfully taking life, but also requires States to establish appropriate safeguards to protect the lives of all within its jurisdiction. This duty can be conceived in two ways:
primary duty on the state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. . . . a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.
Recognizing that the latter obligation to establish operational measures that preserve life could be interpreted so broadly as to “impose an impossible or disproportionate burden” on State authorities, the Court noted that in order for a positive obligation to arise:
it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
The judgment of the Court was that the prison authorities did all that was reasonably expected of them in light of the circumstances; there was no violation of Article 2 in this case. Although the issue is somewhat muddled by the facts of the case (i.e., the individual who committed suicide was suffering from a mental disease), Keenan indicates that States may be obligated in some situations to take measures aimed at preventing an individual from committing suicide. Inasmuch as this principal can be gleaned from the case, it represents a preference for the right to life over an unfettered right to individual autonomy.
The judgment of the European Court of Human Rights in Pretty signals a further development in the case law; it is a development which may eventually prove fatal for the new Dutch law. The applicant in Pretty was a woman who wished to obtain a guarantee or undertaking from the U.K. authorities that her husband would not be prosecuted for assisting in her suicide, which she desired. She claimed that allowing her to be assisted in suicide would not violate Article 2. She attempted to buttress this claim with the observation that were this the case, the Contracting States in which assisted suicide is lawful would be in violation of the article. It was further argued that the article protects the right to life and not life itself, so as to be directed toward protection of individuals from third parties, not from themselves. The petitioner also submitted that the right to life imported a corollary right to die, a right to choose not to go on living. Finally, the applicant distinguished Keenan by noting that the individual in that case was in need of protection from himself only because he lacked the capacity to make a rational decision to end his own life.
The Court was not persuaded that the positive right to life enshrined in Article 2 could be interpreted as bearing a “negative aspect.” Specifically,
Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.
The Court indicated that this decision against the recognition of a right to die is confirmed by the view expressed by the Parliamentary Assembly in Recommendation 1418 (1999). Finally, the fact that Contracting States might currently permit assisted suicide was of no concern to the Court, as they were not party to the present action. Jurisdictional considerations aside, the Court also noted that even if another State’s failure to prohibit assisted suicide was found not to violate Article 2, this would not mean that a State such as the United Kingdom would be in breach for not allowing assisted suicide. The United Kingdom’s refusal to waive enforcement of its law prohibiting assisted suicide did not violate an imagined ‘right to die’ implicit in the applicant’s Article 2 right to life. Pretty makes it very clear that the Convention’s Article 2 protection of the right to life cannot be understood in a negative sense – there is not an ECHR Article 2 right to die.
Although Pretty is a decision of significance in this respect, the Court has yet to visit the issue of whether Article 2 prohibits States from failing to effectively punish and prevent euthanasia and assisted suicide. If, or more probably, when, this issue is addressed, how the Court construes the nature of the right to life is likely to prove determinative.
E. Article 2 Right to Life: Alienable or Inalienable?
The “right to life” is left undefined in the first sentence of Article 2. The next sentence at least sheds light on how the right is violated, which is by intentionally depriving someone of his or her life. This reading is not satisfactory to all commentators, as some argue that there may be situations in which the right to life is not violated simply when another person intentionally kills. Those who hold that the article protects not life itself, but only the right to life can also support this perspective. The case of euthanasia and assisted suicide would appear to present a more complicated case than the typical failure to prevent the deprivation of someone’s life, as it could be argued that one cannot be deprived of something they wish to give away. The issue is simply one of alienability. First, natural rights thinkers such as Locke and Blackstone have held that some rights can be forfeited but not alienated. A forfeiture of right is the result of some fault on the part of the right-holder, whereas alienation of right is by gift. A common example is that one attempting to murder another forfeits his right to life to the threatened victim (or a possible intervening third party). “A nonforfeitable right is one that a person cannot lose through his own blundering or wrongdoing; an inalienable right is one that a person cannot give away or dispose of through his own deliberate choice.” Second, there is a distinction between alienating and annulling a right. A right which may be annulled is one that is indefeasible—it cannot be taken without consent. By contrast, an inalienable right cannot be made void even when the possessor of the right consents. Finally, Feinberg differentiates between waiving the ability to exercise a right one still possesses and relinquishing possession of the right itself. Operating from the premise that it is the right which is inalienable and not the object of the right itself (i.e., life), Feinberg argues that the right to life is a “discretionary right.” According to the discretionary-right view, “declining to exercise” and “waiving” allows for a right holder that never relinquishes the right itself, which is inalienable.
It does not follow from the inalienablility of the right to life, that I may not decline to exercise it positively or that I cannot waive it (by releasing others from their duties not to kill me or let me die) if I choose. If I decline to exercise the right in a positive way or else waive it, then it is my life that I alienate, not my right to life.”
Whether or not the Dutch law exempting physicians from criminal liability for the performance of euthanasia or assisted suicide according to the requirements of due care conflicts with Article 2 hinges primarily on how one conceives the issue of the alienability of the right to life.
If the right to life is indeed alienable, then there is presumably no violation of this right secured by Article 2 if one freely and voluntarily waives it. The language of Article 2 requires that the victim be “deprived” of his life. Operating from the alienability premise, giving away the right to one’s life is no different in principal than any other contractual waiver of right. It would border on the absurd to claim that after making an intelligent and free waiver of a contractual right the party now without the right in question has somehow been “deprived” of it. Individuals who consent to having a doctor end their life or assist in their suicide, according to this reading, were by no means deprived of their right to life. Further, if the right to life were interpreted as alienable, it would create a situation in which the individual could balance other rights against the right to life. One right often mentioned in this context is the right to be free from inhumane and degrading treatment of ECHR Article 3. This situation, in which the right to life is viewed as alienable, relieves the State of some of the vigilance otherwise normally required to protect the right to life, as each individual is delegated the responsibility to protect their own right to life in the field of euthanasia and assisted suicide and conduct their own balancing tests regarding other rights.  Proponents of the Dutch law’s validity under the ECHR must rely on the free-alienability conception of the right to life.
The validity of the law under Article 2 is quite doubtful if the right to life is a truly inalienable and non-discretionary or mandatory right. An inalienable right is one that is not susceptible to transfer or waiver. Obviously, this portrayal of the right removes any ability to claim that the individual was not really “deprived” of anything. The inalienability view holds that even where an individual appears to freely, voluntarily and knowingly request the violation of his right to life, there has nevertheless been a transgression of his right to life. This understanding clearly puts limits on the extent to which individual autonomy is determinative—there are some decisions that no moral agents are capable or authorized to make.
The Grand Chamber of the European Court of Human Rights has endorsed the view that the right to life is inalienable. The Court considered the right to life in light of three international instruments read together: Article 3 of the Universal Declaration on Human Rights (“UDHR”), Article 6 of the International Covenant on Civil and Political Rights (“ICCPR”), and ECHR Article 2. Reading these provisions together, the Court concluded “the convergence of the above-mentioned instruments is significant: it indicates that the right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights.” Although it did not specifically hold that the right to life is inalienable, the Court did characterize it as an “inalienable attribute of human beings.” There would appear to be no appreciable difference between these two characterizations. Additionally, the characterization of the right to life as the pinnacle of the hierarchy of human rights further exposes the inconsistencies in the alienability standpoint. If the right to life really is regnant, how could one possibly waive his right to life and not be allowed to waive any one of a number of derivative rights? Although factually unrelated to cases of euthanasia and assisted suicide, the Court in Streletz lends strong support to the notion that the right to life is inalienable. If, or more properly, when a case arises in the future regarding a Contracting State’s failure to adequately protect the right to life of someone who had been or is in danger of being euthanized or assisted in suicide, such a State is likely to be found in violation of Article 2, as the individual is incapable of opting out of this right.
F. Enforcement of Article 2
How is this right secured and enforced? Unless the ECHR provides a means of redress, the inalienable right to life under Article 2 will prove most inconsequential. Several different types of parties can apply to the European Court of Human Rights for relief from alleged breaches of the Convention. Another contracting State may simply refer an alleged breach to the Court for consideration. Additionally, the Court may receive applications from “any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or protocols thereto.” If the Court were to accept an application challenging the validity of the new Dutch law legalizing euthanasia and assisted suicide, it might have to construe loosely the requirement that non-State challengers be a “victim” of the alleged breach. However, any one of the other forty-three Council of Europe Member States would have standing to bring a challenge on their own initiative. The Dutch Review Procedures Act is susceptible to challenges under Article 2 by both individuals and Contracting States. If an application challenging the Dutch law is deemed admissible, and the trajectory of Pretty and the dicta in Streletz are any guide, the European Court of Human Rights may very well find the Netherlands in contravention to Article 2 of the ECHR.
Although the Netherlands did not demonstrate the interest in legalizing euthanasia and assisted suicide that other nations did in the early decades of the twentieth century, by the last quarter of the century such practices had achieved a status of de facto legality. This de facto legality came to be through a series of judicially created exceptions to the Criminal Code’s explicit prohibitions of euthanasia and assisted suicide and the prosecutorial policy of toleration. The Termination of Life on Request and Assisted Suicide (Review Procedures) Act that was approved by Parliament in 2001 is little more than legislative assent to these earlier developments. With the amendments to the Criminal Code contained in the Act, euthanasia and assisted suicide performed under the conditions of due care are no longer subject to criminal sanction in the Netherlands.
Questions remain whether this development will be unaffected by the fact that the Netherlands is a Contracting State to the ECHR, Article 2 of which contains a protection of the right to life. The way in which the Strasbourg organs construe the nature of the right to life—alienable or inalienable—should prove determinative. In Pretty the European Court of Human Rights announced that the article cannot be understood as securing a corollary “right to die”—a right necessary to the discretionary-right view. Additionally, dicta in Streletz indicates the Court’s inclination to adopt the idea that the right to life is inalienable. To the extent that these signs are indicative of a move in ECHR jurisprudence toward the conception of the right to life as an inalienable and mandatory right, the Dutch Act legalizing euthanasia and assisted suicide is likely to be found by the Court as being in violation of ECHR Article 2.
* Jonathan T. Smies received his J.D. from the University of Michigan Law School and his B.A. from Wheaton College. He is a member of the State Bar of Wisconsin and an Austin Fellow. The Austin Fellowship is an intellectual community of lawyers and law students dedicated to the principled renewal of the Western legal tradition.
 Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding [Termination of Life on Request and Assisted Suicide (Review Procedures) Act], Wet van 1 April 2001, Staatsblad 2001, 194.
 The legislature of the Northern Territory of Australia passed an act on May 25, 1995 authorizing euthanasia, which became effective on July 1, 1996. The act was in force for less than a year, as on March 25, 1997 the Australian National Assembly invalidated it. See Andrew L. Plattner, Note, Australia’s Northern Territory: The First Jurisdiction to Legislate Voluntary Euthanasia, and the First to Repeal it, 1 DEPAUL J. HEALTH CARE L. 645 (Spring 1997); See also Lara L. Manzione, Is there a Right to Die?: A Comparative Study of Three Societies (Australia, Netherlands, United States), 30 GA. J. INT’L. & COMP. L. 443, 444 (Spring 2002).
 Belgium has already adopted an act that became effective on September 23, 2002. Paul Meller, Euthanasia Ban Ends, N.Y. TIMES, September 24, 2002, at A13. Although similar, the legislation has been called “the most liberal euthanasia bill in the world.” Allerlaaste Groen Licht Voor Euthanasie [Very Latest Green Light for Euthanasia], HET VOLK (Belgium), May 16, 2002, at 4. This bill passed the Belgian Parliament on May 16, 2002, by a margin of 86 to 51, with 10 abstentions; those opposed indicated that some effort may be made to have the law tested by the European Court of Human Rights. Antoon Wouters, CD&V trekt met euthanasiewet naar Straatsburg [Christian Democrat and Flemish Party are Going to Strausburg with Euthanasia Bill], DE STANDAARD (Belgium), May 17, 2002, at 4. Professor Hugo Van den Enden of the University of Gent estimates that between 3,000 to 5,000 Belgians will take advantage of the new law annually. Enorme Vraag Naar Euthanasie [A Tremendous Demand for Euthanasia], HET VOLK (Belgium), September 24, 2002, at 1. See also Ezekiel Emanuel, Euthanasia: Where the Netherlands Leads Will the World Follow? 322 BRIT. MED. J. 1376 (June 9, 2001)(espousing the view that the Dutch legislation is likely to have little overall effect internationally).
 Ministerie van Justitie [The Ministry of Justice] offers the following definition in answer to the question of “Wat is euthanasie?” [“What is euthanasia?”]. [“In the Netherlands, ‘euthanasia’ is understood to mean the termination of life by a physician upon the request of a patient. Pain, humiliation and the desire for dignity in dying are the most important motives of patients that request euthanasia.”] “In Nederland wordt onder euthanasie verstaan: levensbeëindiging door een arts op verzoek vaan een patient. Pijn, ontluistering en het verlangen waardig te sterven zijn de voornaamste motieven van patiënten voor het vragen om euthanasie.” Available at
http://www.justitie.nl/publiek/familie_en_gezin/euthanasie/watiseuthanasie.asp (last visited July 13, 2002)(trans. mine). Several activities which are not euthanasia: “refusal of medical treatment by a patient who, as a result of this refusal, dies;” “not initiating or terminating medical treatment when this treatment is medically useless and futile, with the acceptance that the patient will die;” and “symptomatic treatment, for instance, pain treatment with the unintended side effect of shortening the patient’s life.” Pieter V. Admiraal, A Physician’s Responsibility to Help a Patient Die, in EUTHANASIA: THE GOOD OF THE PATIENT, THE GOOD OF SOCIETY 86 (Robert I. Misbin ed., 1992).
 See, e.g., JOHN GRIFFITHS, ALEX BOOD, & HELEEN WEYERS, EUTHANASIA AND LAW IN THE NETHERLANDS 4 (Amsterdam University Press 1998)(defining euthanasia as “killing another person at his request”).
 See infra at 32.
 See Griffiths, et al., supra note 5, at 16. Since 1984 the Royal Dutch Medical Association [Koninklijke Nederlandse Maatschappij Ter Bevordering Der Geneeskunst (KNMG)] has taken the position that there is no distinction between euthanasia and assisted suicide. In the document “Statement on Euthanasia” [“Standpunt inzake euthanasia”] the executive committee of the KNMG abolished such distinction, as it “felt that from a moral point of view it makes no difference whether the lethal medicine is administered directly by the doctor or is handed by the doctor to the patient (in the case of a drug taken orally).” Else Borst-Eilers, Euthanasia in the Netherlands: Brief Historical Review and Present Situation, in EUTHANASIA: THE GOOD OF THE PATIENT, THE GOOD OF SOCIETY 58 (Robert I. Misbin ed., 1992). The statement of the KNMG is published in 39 Medisch Contact 990-998 (1984).
 Through a philosophic analysis of the nature of autonomy, David S. Oderberg questions whether the voluntariness requirement is of any relevance to the euthanasia debate. Although the fashionable respect for autonomy of today is derived from the thought of Kant, it has taken a form that he himself may not have recognized. Kant held that the autonomy of rational beings was still circumscribed by the precepts of morality; hence, he argued that suicide is immoral—it was incoherent to think that a rational being would be capable of willing his own non-existence.
the conception of autonomy which Kant understood, and which itself is embedded in traditional morality, has mutated…into what might be called a doctrine of the paramountcy of the will—the idea that the will must be allowed to range freely over whatever ends a person deliberately chooses as integral to his “personal fulfilment,” perhaps in one of the variety of utility-maximizing ways proposed by consequentialists, the utility being, however, solely personal.
* * *
the moral importance of autonomy is not equivalent to the paramountcy of the will, though this is how it is currently understood. A proper understanding, however, sees autonomy as always and everywhere subject to human good. Autonomy is not merely the moral capacity to do whatever you like (even if what you seek to do is primarily “self-regarding,” in John Stuart Mill’s terminology); this is accepted on all sides of the euthanasia debate, except by the most extreme libertarians or relativists with flawed moral theories of their own.
* * *
In light of these considerations, we can see that there is no right to voluntary euthanasia qua voluntary. I also suggested, however, that the voluntariness requirement, given so much support by those who ultimately wish to see the legalisation of euthanasia in all its forms, is quite simply an ethical “red herring.” Just as you would, it is hoped, baulk at injecting someone with heroin on request, so you would, it is hoped, baulk at any old request to be killed. . . . The real disagreement . . . is over whether there can be good reasons to act on a request to infringe someone’s right to life other than the mere fact of the request itself. It is here that so-called “quality of life” judgments enter powerfully into the debate . . .
DAVID S. ODERBERG, APPLIED ETHICS: A NON-CONSEQUENTIALIST APPROACH 55, 57-58, 60 (2000).
 Wet van 15 september 1886 [law of September 15, 1886]. This act brought into effect the Penal Code of 1881 (Wet van 3 maart 1881).
 English translation of Griffiths, et al., supra note 5, at 308. See also, Article 23 of the Criminal Code which provides that a “fine of the fifth category” is a maximum of f 100,000 (about U.S. $45,000).
 MARGARET OTLOWSKI, VOLUNTARY EUTHANASIA AND THE COMMON LAW 393 (1997); B. Sluyters, Euthanasia in the Netherlands, 57 MEDICO-LEGAL J. 34, 35 (1988).
 Article 289; See also supra note 5 at 308.
 Article 23 of the Criminal Code provides that a “fine of the fifth category” is a maximum of f 25,000 (about U.S. $11,000).
 Article 294; See English translation supra note 5, at 308. The explanatory statement that accompanied the first draft of this article in 1879 was as follows:
He who complies with another person’s explicit and serious wish to take his life is to be subjected to a punishment considerably lighter than he who has been found guilty of plain murder. The consent cannot remove the punishability of taking another person’s life, but it does completely alter the character of the act—the law, so to speak, no longer punishes the assault against a certain person’s life, but the violation of the respect due human life in general—no matter what the motive for the act may be. Crime against human life remains, crime against the person is absent.
Supra note 5, at 325.
 Griffiths, et al., supra note 5, at 307.
 Id. at 44 n.3. A 1908 case where a man was convicted for attempted murder was occasion for the defendant claiming that his victim had requested him to do so. A similar defense of victim request was also raised in 1910, where a man shot his girlfriend, but he was convicted of murder. In 1944 the Supreme Court nullified a ruling of the Amsterdam Court of Appeals, noting that insufficient attention had been paid to the explicit request of the victim, a women strangled by her boyfriend.
 In 1906 the Ohio Legislature rejected a bill to legalize voluntary euthanasia. The climate in America on the topic of euthanasia (even non-voluntary in nature) at the time is also evident in a 1937 Gallup Poll, which found that 46% of those interviewed favored “mercy deaths under government supervision for hopeless individuals.” Richard L. Worsnop, Caring for the Dying, 7 CONG. Q. RESEARCHER 769, 779 (September 1997)
 Supra note 5 at 53. The Dutch Association for Voluntary Euthanasia (Nederlandse Vereniging voor Vrijwillige Euthanasie) was founded in 1973.
 The 1920 publication of Alfred Binding and Karl Hoche, The Permission to Destroy Life Unworthy of Life [Die Friegabe der Vernichtung Lebensunwerten Lebens], in its promotion of euthanasia or ‘dying help’ [sterbehilfe], exercised great influence over the German medical community. In 1933 the German Ministry of Justice issued a memorandum detailing how physicians might be authorized to end the suffering of incurable patients “in the interest of true humanity.” Nazis Plan to Kill Incurables to End Pain; German Religious Groups Oppose Move, N.Y. TIMES, October 8, 1933, at 1.
 Nederlandse Jurisprudentie 1952, no. 275; see supra note 5, at 44.
 The Netherlands is divided into nineteen judicial districts, each containing a court of first instance. Cases from the district courts can be appealed to one of the five courts of appeal [Gerechtshof]. The court of last resort is the Supreme Court [Hoge Raad].
 Nederlandse Jurisprudentie 1952, no. 275.
 Supra note 5, at 44.
 Id. at 47, 48.
 Id. at 48. 1,000 Netherlands Guilders is worth about U.S. $450.
 Nederlandse Staatscourant 1969 no. 55:7.
 Nederlandse Jurisprudentie 1973, no. 183; translated in Griffiths et al., supra note 5, at 52; Although the normal citation convention in Dutch law is to reference the court and not the party, hereafter I have followed the Anglo-American practice of referencing cases by party name.
 Supra note 5 at 52, n.28, citing Nederlandse Jurisprudentie 1973, no 183:560. The Court’s reasoning for rejecting the terminal phase requirement, as the Court knew “of many cases of incurable illness or accident-caused disability, combined with serious physical and/or mental suffering, where the patient is otherwise healthy and can continue living in this state for years. It is not the court’s view that such suffering should be denied the relief described by the expert witness.”
 Id. at 53. The KNMG came to support of euthanasia. This support was evidenced at the time of the trial, as eighteen doctors signed an open letter to the Minister of Justice admitting to have committed the same act of the accused Postema at least once. Else Borst-Eilers, Euthanasia in the Netherlands: Brief Historical Review and Present Situation, in EUTHANASIA: THE GOOD OF THE PATIENT, THE GOOD OF SOCIETY 57 (Robert I. Misbin ed., 1992). The KNMG’s support for euthanasia was opposed by a minority of the medical profession. In 1972 the Netherlands Physician’s League [Nederlands Artsen Verbond (NAV)] was founded as an organization of physicians who strictly adhere to the Hippocratic Oath.
 Nederlandse Jurisprudentie 1982, no. 63:223, discussed in Griffiths et al, supra note 5, at 59.
 Nederlandse Jurisprudentie 1982, no. 63:223, translated in Griffiths et al, supra note 5, at 59.
 Tweede Kamer (app) (1981-1982) 1757.
after judicial Prosecution
Year Non-prosecution Prosecution investigation taken further
1984 16 1 0 0
1985 26 4 1 0
1986 81 0 1 2
1987 122 2 1 1
1988 181 2 1 0
1989 336 1 1 0
1990 454 0 0 0
1991 590 1 0 0
1992 1318 4 1 0
1993 1303 15ª 1 0
ªThe relatively high number of decisions not to prosecute following judicial investigation concerns cases which were reconsidered taking account of the Chabot decision (see infra at 21).
John Keown, Euthanasia in the Netherlands: Sliding Down the Slippery Slope?, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES 296 n.159 (1995)(citing Jaarverslaag Openbaar Ministerie 1994, Ministerie van Justitie, Den Haag, 1995). A table of Euthanasia case disposals in the Netherlands from 1984-1994 demonstrates the extremely low rate at which cases were prosecuted.
 Grondwet Nederlandse (Constitution of the Kingdom of the Netherlands) Art. 43 (Ned.).
 The College is made up of three to five Procurators-General. When membership of the College is limited to three, only two votes are needed to set national prosecutorial policy.
See Press Release, Public Prosecution Service, New Public Prosecution Service Guidelines: Clear Strategy on Criminal Enforcement of Drugs Policy (Sept. 18, 1996), available at http://archief.om.nl/english/engl_frm.htm. Obviously, Parliament has now addressed the issue of euthanasia and assisted suicide and afforded a democratic resolution to the question.
 Supra note 5, at 61.
 Nederlandse Jurisprudentie 1985, no. 106, translated in Griffiths et al., supra note 5, at 322-28. This case is often referred to as the 1984 Alkmaar case.
 Supra note 5, at 62.
 Nederlandse Jurisprudentie 1984, no. 407.
 Supra note 5, at 62; Nederlandse Jurisprudentie 1984, no. 43.
 Article 40 provides for a defense in cases of “irresistible compulsion or necessity [overmacht].” “The defence takes two forms: first, ‘psychological compulsion’ and secondly ‘emergency’ (noodtoestand) or choosing to break the law in order to promote a higher good.” John Keown, Some Reflections on Euthanasia in the Netherlands, in EUTHANASIA, CLINICAL PRACTICE AND THE LAW 195 (Luke Gormally ed. 1994). The first is akin to the common law’s defense of duress. It was the defense of noodtoestand upon which the defendant relied; Supra note 5, at 62-63.
 Supra note 5, at 63.
 Id., quoting NJ 1985, no. 106.
 John Keown, Euthanasia in the Netherlands: Sliding Down the Slippery Slope?, EUTHANASIA EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES 263 (John Keown ed., 1995).
 Griffiths et al., supra note 5, at 63.
 Keown, supra note 55, at 264.
 Id., at 263-64 (giving the example of pushing someone out of the path of a moving car as a traditionally-accepted action justified by necessity that might otherwise be prohibited). The notion that criminal liability for killing another human being could be avoided through a defense of necessity does not fit comfortably within common law jurisprudence. The issue is usually conceived of in terms of a ‘choice of evils’—for some decisions made in the face of such a situation of choice the law will grant the defendant temporary leave from his normal duties under the law. One condition usually imposed is that the evil avoided by deviating from the law must exceed the evil of the illegal act itself. The famous case of R v. Dudley & Stephens, 14 Q.B.D. 273 (1884), represents a landmark in common-law thinking on the issue of whether the necessity defense will allow for one innocent life to be taken in order to save another (or others). Chief Justice Lord Coleridge wrote that in the eyes of the law, necessity could never justify the killing of another innocent human being. The common law’s reluctance to allow for a defense based on necessity for killing an innocent may be attributable to some of the Christian moral theology which influenced its development. In the Christian framework, physical death itself is not the ultimate evil, as the greater concern is sin and the health of that which never dies (i.e., the soul). Thus, the extension of one’s life at the expense committing the mortal sin of murder with its attendant ill effects on the soul was not something the common law countenanced. This concern for the life of the soul is illustrated in the old rule which prohibited the accused from testifying on his own behalf: the common law made the assumption that it was better to loose one’s life (even if unjustly) at the hand of the criminal law than to perjury oneself to avoid it, thereby damning the soul. Although there has traditionally been no room in common-law jurisprudence for a justification of necessity for the killing of an innocent individual, one observer notes that the English courts have reversed themselves. See Charles I. Lugosi, Playing God: Mary Must Die So Jodie May Live Longer, 17 ISSUES L. & MED. 123 (Fall 2001)(discussing Re A (Children) (Conjoined Twins: Surgical Separation),  4 All E.R. 961 (C.A. Civ.) (U.K.), a case in which it was held that necessity allowed for the separation of two conjoined twins, even though the death of one was a certain result).
 Keown, supra note 55, at 264.
 Nederlandse Jurisprudentie 1987, no. 608.
 Griffiths et al., supra note 5, at 63.
 Id. at 64.
Id; Nederlandse Jurisprudentie 1984, no. 450.
 Nederlandse Jurisprudentie 1985, no. 241.
 Griffiths et al., supra note 5, at 64.; Nederlandse Jurisprudentie 1987, no. 607.
 Griffiths et al., supra note 5, at 64.
 Nederlandse Jurisprudentie 1985, no. 106, translated in Griffiths et al., supra note 5, at 322-28.
 Griffiths et al., supra note 5, at 64.
 “Standpunt inzake euthanasia [Position on Euthanasia],” Medisch Contact 31: 990-998 (1984).
 These requirements are listed in Griffiths et al., supra note 5, at 66. In 1992 the additional requirement of keeping a fully-documented written record was added. Griffiths et al., supra note 5, at 66 n.76.
 Nederlandse Jurisprudentie 1985, no. 709.
 Griffiths et al., supra note 5, at 67.
 Nederlandse Jurisprudentie 1988, no. 157.
 Nederlandse Jurisprudentie 1992, no. 664; on appeal the Hague Court of Appeals also acquitted the doctors. Tijdschrift voor Gesondheidsrecht 1993, no. 52. For a discussion of the case see Griffiths et al., supra note 5, at 80 n.123.
 Tijdschrift voor Gezondheidsrecht 1992, no. 19; For a discussion of the case see Griffiths et al., supra note 5, at 80 n.123.
 Nederlandse Jurisprudentie 1994, no. 656; For an English translation of the case, see Griffiths et al., supra note 5, at 329-40. The case originated in the Assen District Court, which acquitted the defendant.
 Id. Her two sons both died within a short period of time.
 Nederlandse Jurisprudentie 1994, no. 656: 3154, quoted in Griffiths et al., supra note 5, at 81.
 Griffiths et al., supra note 5, at 82. Chabot was later subject to a formal reprimand from an Amsterdam medical disciplinary board, which claimed that he was wrong to have decided that his patient could not be treated and that his actions undermined trust in the medical profession. Tony Sheldon, Reprimand for Dutch Doctor who Assisted Suicide, 310 BRIT. MED. J. 894 (April 8, 1995).
 Nederlandse Jurisprudentie 1995, no. 602.; For a discussion of the case in English, see Henk Jochemsen, Dutch Court Decisions On Nonvoluntary Euthanasia Critically Reviewed 13 ISSUES L. & MED. 447 (Spring 1998).
 Jochemsen, supra note 84, at 452.
 Griffiths et al., supra note 5, at 83.
 For an English translation of the case, see Griffiths et al., surpa note 5, at 341-51.For a discussion of the case in English, see Jochemsen, supra note 84, at 452.
 Jochemsen, supra note 84, at 452.
 Griffiths et al., supra note 5, at 84. Jochemsen notes that in the decision and its: “mentioning the consent of the parents as essential for the defense of necessity. Other conditions considered important by the Leeuwarden court were: (1) no doubt must exist about diagnosis and prognosis, (2) the doctor must consult colleagues, (3) death must be brought about in a careful and correct way; and (4) the doctor must report the case.” Jochemsen, supra note 84, at 453 (footnote omitted).
 Jochemsen, supra note 84, at 454.
 Id. at 457.
 Id. (footnote omitted).
 Borst-Eilers, supra note 7 at 64. Of course, “euthanasia,” as formally defined in the Netherlands, is necessary and only what occurs when there is an actual request. Hence, the category “termination of life without explicit request” was conceived of to cover scenarios such as those in Prins and Kadijk. One cannot help but comment on the Orwellian character of this euphemism, at least to the ear of an Anglophone. Although it was a change in the law to accept euthanasia sans request, the practice of non-voluntary euthanasia for infants was nothing new at the time of these decisions. A 1987 survey conducted by the Dutch Pediatric Society found that of the eight neonatology centers surveyed all allowed for the termination of newborns in some circumstances. Five of the centers admitted to a general policy of administering a lethal drug in exceptional cases, while the other three centers limited such behavior to the “dying phase.” Nevertheless, former Minister of Health, Welfare and Sport, Else Borst-Eilers still maintains that “[i]n the Netherlads, euthanasia is defined as the deliberate termination of the life of a person on his request by another person. Essential in this definition is the request. Without such a request, the termination of a life would be murder.” Supra note 7 at 55. If this is indeed the case, one of two things must be true in light of the Minister’s admissions regarding neonatal practice: (1) there is no “murder,” as a disabled newborn is not really a “person;” or (2) such an infant is indeed a “person,” and murder is the admitted result. Neither result is satisfactory.
 Linawati Sidarto, GP Flouted Euthanasia Law, HET FINANCIEEL DAGBLAD (English ed. Dec. 2001).
 Raphael Cohen-Almagor, Euthanasia in the Netherlands: the Legal Framework, 10 MSU-DCL J. INT’L L. 319, 340 (Summer 2001).
 LJN no.: AA7926 Case no.: 15/035127-99 (October 30, 2000).
 Tony Sheldon, “Existential” Suffering not a Justification for Euthanasia, 323 BRIT. MED. J. 1384 (December 15, 2001); the spokesman for the Royal Dutch Medical Assoc. said the definition of “hopeless and unbearable suffering” had been “stretched too far” in the decision. He also noted its novelty: “What is new is that it goes beyond physical or psychiatric illness to include social decline. We are concerned that this judgment will marginalize the role of the GP.” Quoted in Tony Sheldon, Dutch GP Cleared After Helping to End Man’s ‘Hopeless Existence’ 321 BRIT. MED. J. 1174 (November 11, 2000).
 Sidarto, supra note 95; LJN number: AD6753 Case number: 23-000667-01B (December 6, 2001).
 Sheldon, supra note 98 at 1384.
 Sidarto, supra note 95.
 However, the fact that no criminal penalty was imposed does indicate a willingness on the part of the courts to compromise on the suffering requirement.
 Griffiths et al., supra note 5, at 82.
 See Id. at 29
 Tony Sheldon, Dutch GP Found Guilty of Murder Faces No Penalty, 322 BRIT. MED. J. 509 (March 3, 2001). Van Oijen appeared on the 1994 television documentary Death By Request.
 Id. The Court noted that his was merely an “error of judgment,” and that Van Oijen had acted “honourably and according to his conscience.” Other than improperly administering the anesthetic, the defendant failed to obtain a second medical opinion.
 Supra note 105. Although formally finding guilt, the court’s failure to impose criminal penalty even though the voluntariness requirement was completely lacking does speak to the degree to which this requirement is actually valued. This is analogous to what happened in Sutorius regarding the suffering requirement. Van Oijen was also found guilty of wrongly reporting the death as one due to natural causes, for which he was given a suspended fine of f 500 (about $2100).
 On the deference given to the medical community, see Julia Belian, Deference to Doctors in Dutch Euthanasia Law, 10 EMORY INT’L L. REV. 255, 257 (1996)(“the judiciary has, for all practical purposes, deferred to a completely extra-governmental body: the medical community”).
 See supra note 94. This, along with involuntary euthanasia, constitutes what as known in the Netherlands as “termination of life without an explicit request.” According to the semantic framework current in the Netherlands “euthanasia” can never be involuntary or non-voluntary, as the definition of the word itself mandates voluntariness.
 Griffiths et al., supra note 5, at 321, citing Schlaken, Note Accompanying the Decision of the Supreme Court in the Chabot Case, 1994 Nederlandse Jurisprudentie no. 656: 14.
 For the results in English, See Paul J. van der Maas, et al., Euthanasia, Physician Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995, 335 (no. 22) NEW ENG. J. OF MED. 1699 (1996).
 Johannes J.M. van Delden, et al., The Remmelink Study: Two Years Later; Assisted Suicide 23 THE HASTINGS CTR. REPORT 24 (1993).
 Van der Mass et al., supra note 114, at 1699.
 Id. at 1701 (Table 1).
 Id. Only percentages are given in the study; the number 2,447 was arrived at by multiplying 1.9% by the total number of deaths in the Netherlands in 1990, which was 128,786.
 Van der Mass et al., supra note 114, at 1701. Only percentages are given in the study; the number 3,118 was arrived at by multiplying 2.3% by the total number of deaths in the Netherlands in 1995, which was 135,546.
 Id. This number is not adjusted for the change in the total number of deaths in these years.
 Van der Mass et al., supra note 114, at 1701
 Id. Data are also available for the total number of reported euthanasia and assisted suicide cases nationally in 2000 and 2001. In 2000 there were 2,127 cases actually reported to the Dutch authorities. Toetsingscommissies euthanasia [Euthanasia Review Committee], Jaarverslag 2000 [2000 Annual Report], 28-32. 2,054 cases were reported in 2001. Toetsingscommissies euthanasia [Euthanasia Review Committes], Jaarverslag 2001 [2001 Annual Report], 30-34.
 Van der Mass et al, supra note 114, at 1702 (Table 2).
 Johanna H. Groenewoud, et al., Physician-Assisted Death in Psychiatric Practice in the Netherlands, 336 NEW ENG. J. MED. 1795 (1997).
 Id. at 1795.
 Id. at 1796.
 Groenewould, et al, supra note 136, at 1801.
In Dutch psychiatry, there is a rather liberal attitude toward physician-assisted suicide in psychiatric patients but a very reluctant practice. Consultation of a psychiatrist about requests for euthanasia or physician-assisted suicide because of medical diseases is relatively rare and perhaps should occur more often, although most Dutch psychiatrists think that the primary care giver should decide whether psychiatric consultation is necessary.
 See Griffiths, et al., supra note 5, at 39, citing Wet van 7 maart 1991, houdende nieuwe bepalingen inzake de lijkbezorging, Staatsblad 1993, 655, (defining euthanasia as “killing another person at his request”).
 See Griffiths, et al, supra note 5, at 39.
 Id. at 39-40.
 Gerrit van der Wal, et al., Evaluation of the Notification Procedure for Physician-Assisted Death in the Netherlands, 335 NEW ENG. J. MED. 1706 (1996).
 Id. at 1706-1707.
 See Gerrit van der Wal, et al, supra note 145, at 1707.
 Law of 2 December 1993 (Staatsblad 1993: 643), effective 1 June 1994 (Staatsblad 1994: 321).
 See Griffiths, et al, supra note 5, at 309.
 Id. at 309 n.6.
 Order in Council of 17 December 1993 (Staatsblad 1993: 688), effective 1 June 1994 (Staatsblad 1994: 321).
 See id. Article 1, translated in Griffiths, et al, supra note 5, at 309-310.
 Jochemsen, supra note 74, at 448. (Jochemsen notes that the new regulation was criticized in Parliament for including nonvoluntary euthanasia along with voluntary euthanasia in its regulatory framework.)
 Supra note 155, at Article 1, translated in Griffiths, et al, supra note 5, at 310. “This report does not affect the applicability of articles 287 [manslaughter], 289 [murder], 293 [euthanasia], 294 [assisted suicide] of the Criminal Code.”
 Staatscommissie Euthanasie [State Commission on Euthanasia], Rapport van de Staatscommissie Euthanasie [Report of the State Commission on Euthanasia], The Hague, 1985, translated in Griffiths et al., supra note 5, at 314.
 Proposed Article 292b, supra note 160, translated in Griffiths, et al., supra note 5, at 314-315.
 Proposed Article 293, supra note 160, translated in Griffiths, et al., note 5, at 314-315.
 Griffiths et al., supra note 5, at 316.
 See Griffiths, et al., supra note 5, at 74, 316. (The Proposal formed the framework of later proposals, such as the Wessel-Tuinstra draft of March 8, 1986, Second Chamber of Parliament, 1986-1987, 18 331 no. 38, and the Government’s tentative draft bill [de Proeve] of 1986, Second Chamber of Parliament, 1985-1986, 19 359, no. 2. The latter included the requirement that euthanasia could only be performed where there was “a concrete expectation of death”).
 Tweede Kamer der Staten General, [Second Chamber of Parliament] 1998-1999, 26 691, no. 1-2.
 Nederlands Parlement Haalt Euthanasie; Kritiek op Den Haag uit Vaticaanstad [Dutch Parliament Goes for Euthanasia: Criticism of The Hague out of the Vatican], DE FINANCIEEL-ECONOMISCHE TIJD, November 29, 2000, at 7.
 Id. (The three other Christian parties are the Orthodox Calvinist (Reformed) Party [Staatkundig Gereformeerde Partij], the Catholic Political Party [Katholiek Politieke Partij], and the Christian Union [ChristenUnie]).
 Eerste Kamer Ook Voor Euthanasiewet [First Chamber also in Favor of Euthanasia Bill], DE TELEGRAAF, April 11, 2001.
 Demonstratie Tegen Euthanasiewet [Demonstration Against Euthanasia Bill], DE TELEGRAAF, April 11, 2001.
 Besluit van 15 maart 2002, houdende vaststelling van het tijdstip van inwerkingtreding van de Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding; see also supra note 1.
 See supra note 1.
 Supra note 1, at Article 20A, Staatsblad 2001, 194, translation available at, http://www.minjust.nl:8080/c_actual/persber/26691-engels.pdf, cite now available at http://www.justitie.nl/english/.
 Supra note 1, at Article 20B, Staatsblad 2001, 194. translation available at http://www.minjust.nl:8080/c_actual/persber/26691-engels.pdf, cite now available at http://www.justitie.nl/english/.
 Supra note 1, at Article 2, Staatsblad 2001, 194, translation available at http://www.minjust.nl:8080/c_actual/persber/26691-engels.pdf, cite now available at http://www.justitie.nl/english/.
 Supra note 20.
 Nieuw Burgerlijk Wetboek 7:448, amended by Dutch Medical Services Act of 1994, Stb. 1994, 837 (November 17, 1994), renumbered by the Decree of the Minister of Justice, Stb. 1993, 837 (December 15, 1994); see also E.H. Honduis and A. Van Hooft, The New Dutch Law on Medical Services, 1996 NETHERLANDS INT’L. L. REV. 9 (1996).
 Supra note 1, at Article 2 (2), Stb 2001, 194.
 Id. at Article 2(3).
 Id. at Article 2 (4).
 Kamerstuk 1998-1999, 26691, nr. 1-2, Tweede Kamer (August 17, 1999).
See Ministry of Justice Press Release 3940 (July 12, 2000), available at http://www.minjust.nl:8080/c_actual/persber/pb0622.htm.) (last visited August 31, 2002), cite now available at http://www.justitie.nl/English/.
 Supra note 1 Article 293, 294.
 Supra note 1, Hoofdsdruk (Chapter) III, Stb 2001, 194.
 Griffiths et al., supra note 5, at 39.
 Supra note 1, at Article 21(A), Stb 2001, 194.
 Id. at Article 21(B).
 Besluit van 6 maart 2002; Staatsblad 2002, 140. Physicians who terminate life must answer a series of twenty-two questions. See Model Report in the Supplement to Staatsblad 2002, 140, 6ff.
 Supra note 1, at Article 21(C), Staatsblad 2001, 194.
 Id. at Article(D).
Id. at Article 3, Staatsblad 2001, 194, available at http://www.minjust.nl:8080/c_actual/persber/26691-engels.pdf, cite now available at http://www.justitie.nl/english.
 Translation available at http://www.minjust.nl:8080/c_actual/persber/26691-engels.pdf, cite now available at http://www.justitie.nl/english/. Just how exactly one qualifies as an expert in the discussion of what the “prerequisites” of a “meaningful life” are not made clear in the text. It seems that any measure of what is necessary to make a life meaningful is inherently subjective—what may be at the center of one person’s life could be nonexistent or of little concern in the equally meaningful life of another. Loosing a finger may affect the meaning of a concert pianist’s life in ways it does not affect the meaning of an accountant’s. Although the a child with Down’s Syndrome is probably not in possession of the cognitive powers that work in quantum physics demands, it is presumption to assert that the child’s simple joys are any less meaningful to him than Einstein’s labors were to the great thinker. Perhaps the text of the Act refers not to individuals in possession of this elusive (or nonexistent) subjective knowledge of what the prerequisites for a meaningful life are in every human case, but simply to scholars familiar with the terms of the debate of what society might consider the prerequisites to a meaningful life to be—what Dutch society believes “needed” to have a “life worth living.” If there must be a debate, the continuation of it is to be preferred to the law’s heavy-handed recognition of a particular view of who is in possession of the prerequisites and who is not.
 Supra note 1, at Article 4, Stb 2001, 194.
 Id. at Article 8.
 Id. at Article 9, see also Article 12. Opinions are adopted by a simple majority of the committee; all members must participate in the vote.
 Supra note 1, at Article 10, 14. The physician must be informed that information regarding his actions has been given to the prosecutor. Otherwise, unless under another statutory duty, committee members are bound to keep information obtained in the course of their work confidential.
 Id. at Article 17.
 Henk Jochemsen, Legalization of Euthanasia in the Netherlands, 16 ISSUES L. & MED. 285, 286 (Spring 2001)(noting that the public prosecutor is not even privy to the committee report in cases where the committee rules in favor of the physician).
 European Treaty Series no. 005, opened for signature November 4, 1950, entered into force September 3, 1953, 213 UNTS 221. The Netherlands signed the ECHR on November 4, 1950. Ratification by the Netherlands occurred on August 31, 1954, available at http://conventions.coe.int/treaty/EN/searchsig.asp?NT=005&CM=&DF
Treaty on European Union (Treaty of Amsterdam), available at http://europa.eu.int/eur-lex/en/treaties/dat/C_2002325EN.000501.html. Although beyond the scope of this paper, consideration could be given to the possible significance of the Netherlands’ membership in the European Union. Article 6(1) provides: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member states Article 7 allows for the sanctioning of Member States upon the finding of the “existence of a serious and persistent breach” of the principles of Article 6(1). It is unlikely, given political considerations, the drastic exercise of EU sanctions against the Netherlands will occur in this case. However, this system of sanctions was utilized, much to the surprise of observers, in 2000 against Austria upon the inclusion of Jörg Haider’s Freedom Party in the governing coalition. If the European Court of Human Rights were to find the Netherlands in violation of the ECHR, EU sanctions could prove to be an effective means of enforcing the judgment, especially since Article 6(2) of the Treaty on European Union requires respect for human rights as guaranteed by the ECHR.
 Heading added according to the provisions of Protocol No. 11 (ETS No. 155), available at http://conventions.coe.int/treaty/en/Treaties/Html/005.htm.
 Id. at Article 15—“Derogation in time of emergency,” (Subsection 2 reads: “No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision”).
 Stewart v. U.K. (Application no. 10044/82), 39 Eur. Comm’n H.R. Dec. & Rep. 162.
 FRANCIS G. JACOBS, THE EUROPEAN CONVENTION ON HUMAN RIGHTS 21 (1975). Jacobs argues that the ECHR in this respect “carries a different emphasis [than the Universal Declaration], but does not seem to affect the substance of the rights guaranteed under the Convention.”
 7154/75, 14 Eur. Comm’n H.R. Dec. & Rep. 31 (States must not only refrain from taking life intentionally, but must also “take appropriate steps to safeguard life.”).
 That the right to life is “protected by law” implies that the State make the intentional killing by an individual a “punishable offense.” See J.E.S. FAWCETT, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 37 (1987).
 In addition to establishing and enforcing laws that protect life, the procedural right of Article 2 creates a positive obligation that States carry out an effective investigation of the circumstances surrounding the death. “This obligation applies irrespective of whether lethal force was applied by the State’s agents or by any other persons.” Peter Ferguson, The Right to Life: Some Procedural Requirements, 151 NEW LAW J. 808 (June 1, 2001), citing LESTER & PANNICK, HUMAN RIGHTS LAW AND PRACTICE 4.2.32 (1999).
 Recommendation 1418 (1999), available at
http://assembly.coe.int/documents/adoptedtext/ta99/erec1418.htm, adopted June 25, 1999 (24th Sitting). The recommendation grows out of the May 21, 1999 report of Ms. Edeltraud Gatterer, Rapporteur for the Social, Health and Family Affairs Committee (Doc. 8421). See also Opinion of the Committee on Legal Affairs and Human Rights (Doc. 8454).
 Id. at § 1 (“The voacation of the Council of Europe is to protect the dignity of all human beings and the rights which stem there from.”).
 Id. at § 2.
 Id. at § 7.
 Id. at § 9.
 Supra note 218, at § 9(a)-(c).
 Id. at § 9(b)(v).
 Id. at § 9(c).
 Twenty-four parliamentarians of the Council of Europe later issued Written Declaration No. 312, Legalisation of Euthanasia in Europe, Doc. 8951 (originally tabled on January 25, 2001, with third edition published on May 14, 2001). The concern was expressed forcefully, and included an explicit mention of the situation in the Netherlands: “the undersigned protest against every step toward legalisation of euthanasia in Europe. This instrument of completely false care and love leads the countries of our continent to great violations of human dignity and right to life…The legalisation of euthanasia in the Netherlands is a first step to promote this ethical mistake around Europe…the promotion of euthanasia infringes the European Convention of Human Rights, especially on Article 2…Support of euthanasia evades this Convention, proposing a category of individuals – handicapped, aged persons or persons in a coma – who are to be treated as non human-beings. Acceptance of euthanasia leads us very easily to a new totalitarianism.” The nationality of the members who signed is as follows: Poland (8); United Kingdom (4); Czech Republic (3); Turkey (2); Cyprus (1); Ukraine (1); Former Yugoslav Republic of Macedonia (1); Italy (1); Latvia (1); Hungary (1); France (1). Although a large number of representatives from Eastern European countries supported the declaration, Gaarthuis et al. are incorrect to imply that this declaration was the result of efforts strictly of “representatives from the new democracies of Eastern Europe.” Remy Gaarthuis et al., Active Euthanasia and the Right to Life According to the ECHR, Amsterdam International Law Clinic paper (March 30, 2001).
 Adopted at the 728th meeting of the Ministers’ Deputies (October 30, 2000), Doc. 8888.
 Adopted at the 790th meeting of the Ministers’ Deputies (March 26, 2002), Doc. 9404.
 Supra note 218, at § 11.
 Remy Gaarthuis et al., supra note 226, at 11, (most Article 2 decisions have been made by the Commission instead of the Court. )
 20527/92 (1993)(unreported); Discussed in Gaarthuis et al., supra note 226, at 14-15.
 “Passive euthanasia” is the term used to refer to abstaining from life-sustaining treatments.
 See Gaarthuis et al., supra note 226, at 15.
 Keenan v. United Kingdom, 27229/95 Eur. Ct. H.R. (Third Section) (April 3, 2001).
Id.at 956. Petitioner submitted the need to take appropriate steps, which include the training and instruction of State agents. Petitioner further submitted that certain classes of individuals in custody (i.e. vulnerable persons such as children or the mentally disturbed) require the State to act with a heightened standard of vigilance.
 Id. at 957. This is an interesting instance of a State masking its self-interest (i.e., a cost savings from extra expenses needed to protect some individuals from themselves) with lofty language of “autonomy” and “individual dignity.”
 Id., citing L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of judgments and decisions 1998-III, p. 1403, § 36.
 Id., citing Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998‑VIII, § 115.
 Kennan, 27229/95 Eur. Ct. H.R. at 958, citing Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998‑VIII, § 116.
 Id.at 961.
 Pretty, 2346/02 Eur. Ct. H.R. at 806.
 Id. at 807.
 Id. at 808.
 Id. at 823.
 Pretty, 2346/02 Eur. Ct. H.R. at 823.
 Id. at 829-830, explaining the Court noted that the comparison to the negative aspect to the right to free association in Article 11 (i.e., the freedom to associate with others does not imply that one can be forced to join a group—it is a right both to associate and a right not to associate) was inapposite. Article 2, the Court claimed, was phrased in different terms.
 Id. at 830.
 Remy Gaarthuis et al., supra note 226, at 9, (this argument is usually expressed by claiming that there is only a right to life, and not a “duty to live.” Another way of expressing the same idea is to say that Article 2 “does not contain an obligation to life”)(emphasis in original; footnote omitted). This premise coupled with the notion that there is a right to dignity while living leads some to speak tentatively of a “right to die” under the ECHR—a “right” explicitly rejected by the Court in the Pretty judgment. See e.g., Torkel Opsahl, The Right to Life, in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 221 (R. St. J. Macdonald et al. eds., 1993)(“right to a life in dignity may speak in favour also of a ‘right to die’”). Although the Court made it clear in Pretty that no “right to die” exists under the ECHR, some flaws in the notion of such a right are worth comment. This line of reasoning seems to assume that there is really only one moral agent involved in euthanasia or assisted suicide; this is not the reality, as inherent in the definition of these activities is the action of another party. It is disingenuous to ignore these other parties and argue that the State has no duty to prevent them from acceding in the wishes of the individual. Simply, even if there were no duty or obligation to life, it is a non sequitur to argue that the State is under no obligation to restrain third parties. Euthanasia and assisted suicide cannot so easily be collapsed into the category of an individual’s act of suicide.
 Fawcett supra note 216, at 37.
 JOEL FEINBERG, RIGHTS, JUSTICE, AND THE BOUNDS OF LIBERTY 238-246 (1980)(providing a discussion of how the concept of alienability can be understood by distinguishing similar terms). For a discussion of some of the linguistic issues surrounding the idea of inalienability at the time of the signing of the American Declaration of Independence, see B.A. RICHARDS, Inalienable Rights: Recent Criticisms and Old Doctrine, 29 PHILOSOPHY AND PHENOMENOLOGICAL RESEARCH 391, 398 n.31 (1969).
 FEINBERG, at 239.
 Id. at 240.
 Id. at 243.
 Id. at 243.
 FEINBERG, at 243.
 See supra note 8. This balancing by the individual is obviously not possible in the case of infants or adults who loose the ability to express an opinion on the matter and have not previously made their intentions known. In such a case some other actor(s) must perform the balancing test for the individual. It is at this point where it is inevitable that subjective definitions of “inhumane and degrading” and so-called “quality of life” judgments are relied upon as a justification for the lack of the voluntariness component.
 P. VAN DIJK & G.J.H. VAN HOOF, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 220-21 (2d ed. 1990)(noting the significance of the question of whether the right to life is alienable in connection with other rights).
In fact, the value of the life to be protected must be weighed against other rights of the person in question, particularly his right, laid down in Article 3, to be protected from inhumane and degrading treatment. Whether the will of the person is decisive in such a case depends on whether the right to life is or is not to be regarded as inalienable.
Another right that might be conceived of by some as worthy of being balanced against the right to life is the right to privacy of ECHR Article 8.
 In this context “protect” obviously does not mean the same level of protection that the State should provide in a situation in which it is understood that the right to life is inalienable. Essentially, the individual’s only protection in a system that adheres to the view that the right is alienable is to be certain that any request for euthanasia or assisted suicide truly is the desire of their heart; the waiver, once made, is tragically irreversible. Presumably, under the Dutch system one could be reasonably certain that persistent and notorious attempts to prevent future waiver-by-proxy (i.e., so called situations of ‘termination of life without explicit request’) might be another way an individual could protect his right to life under the alienable conception. Such attempts would include advance directives making one’s wishes clear that such treatment in the future shall not be an option. Obviously, some classes of individuals, such as infants, are not capable of making such efforts to protect their lives.
 See e.g., Feinberg, supra note 254, at 243. However, they are unlikely to use the same language. Some proponents of an individual’s right to elect euthanasia or assisted suicide claim to adhere to the inalienability of the right to life but not the object of the right itself, which can be alienated. Opposed to this camp of individuals who hold the discretionary right view are those who think the inalienable right to life is a so-called mandatory right: a right in which one has no lawful discretion regarding whether to exercise the right.
 See e.g., PETER SINGER, PRACTICAL ETHICS 191 (2d ed. 1993); Van Dijk & van Hoof, supra note 263, at 221 (claiming that there is a dividing line between “human” and “merely vegetative” life). However, the Court’s language would allow for someone who holds that individuals are capable of loosing their status as a ‘human being’ to argue that a creature who ceases to be (or has not yet become) a person ceases to be a holder of an inalienable right, and is therefore liable to have his life taken with or without his consent. Such a consequentialist reading would presumably assume that membership in the human community is contingent on the individual’s ability to exhibit signs of personhood (e.g., rationality or consciousness). Peter Singer argues that the killing of a disabled infant is not always morally wrong, as such individuals are without attributes of personhood.
 An example of a non-waivable human right is the prohibition being held in slavery or servitude found in ECHR Article 4 (1). Presumably, an individual cannot freely contract himself into slavery under the Convention. See Jacobs, supra note 214, at 44-45 (arguing that the element of consent cannot make lawful slavery or involuntary servitude otherwise prohibited by Article 4(1)). Some guidance about the issue of whether one can validly contract himself into bondage is given by the U.N. Supplementary Convention on Slavery (1956), which claimed: “It should not be possible for any person to contract himself into bondage.” Fawcett, supra note 216, at 63 (citing U.N. Doc. A/2929 p. 33). In the Vagrancy Cases, one of the claims brought by the applicants was a violation of their Article 5(1) right not to be deprived of their liberty. The Commission noted that the fact that the applicants allegedly voluntarily relinquished their liberty was not fatal to their application. “It is of the opinion that according to the generally recognised principles of law personal liberty is an inalienable right which a person cannot validly abandon.” Report of the European Commission of Human Rights in De Wilde, Ooms and Versyp Cases (“Vagrancy” Cases), Publications of the Court, Series B, at 91.
 Supra note 266.
 See J.G. MERRILS & A.H. ROBERTSON, HUMAN RIGHTS IN EUROPE: A STUDY OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 34 (4th ed. 2001)(noting “active euthanasia, that is intervention to end life, without a person’s consent would be very difficult to justify [under Article 2]”). Even if the Strasbourg organs reverse their course and adopt the position that the right to life is alienable, the Dutch law is still in jeopardy to the extent it allows for the continuation of “termination of life without explicit request.”
 ECHR Art. 33.
 ECHR Art. 34; ECHR Art. 35(1)(requires that in order for an application to be admissible, all domestic remedies must be exhausted).
 Obviously, a “person” who is a “victim” of a State’s failure to protect his right to life cannot himself bring suit post mortem. Standing might be easier to demonstrate for a group of individuals who as a class were susceptible to having their life ended intentionally. It is not certain how the Court might dispose of the fact that, as proponents of the Dutch legislation would be quick to point out, the Dutch scheme normally requires the consent of the patient, thus damaging any class claim of unavoidable injury. Suit might be brought on behalf of a comatose patient in jeopardy of suffering the fate of “termination of life without explicit request.” Additionally, there is the possibility of surviving family members initiating an action as was done in the case of Keenan.
 See supra note 265. Some of those who purport to hold to the inalienablility position adhere to the view that the right to life is a discretionary right (although the right to life cannot be waived, the exercise of it is up to the right holder’s discretion; this discretion necessitates a “right to die”). The debate is thus among two camps who both claim the inalienability position: those who advocate a discretionary right to life and those who assert that the right to life is mandatory. The discretionary interpretation goes a long way to undermine the actual strength of any “inalienable” right to life. This group of discretionary-right proponents may actually be better categorized as advocating what in practice is the alienable-right view.