I. The Concept and Evolution of Euthanasia
The word "euthanasia" is derived from the Greek word euthanasia, meaning "happy" death. [It has two meanings: a painless death and a painless lethal procedure. In our country, the general understanding of euthanasia is: patients suffering from incurable diseases in a dying state, due to the extreme mental and physical pain, at the request of the patient and his relatives and friends, recognized by the doctor, with humane methods to make the patient in a painless state in the end of the life process. Scholars have categorized euthanasia into different types according to its different characteristics, such as active versus passive euthanasia, usual versus extraordinary euthanasia, intentional versus unintentional euthanasia, and voluntary versus involuntary euthanasia. [2] Among the classifications of euthanasia, the most common classifications are voluntary euthanasia, non-involuntary euthanasia and involuntary euthanasia. By voluntary euthanasia, it is meant that the person himself voluntarily, desires and requests euthanasia and thus it is carried out; by non-voluntary euthanasia, it is meant that the person has lost the ability to choose or to live but is put to death or allowed to die in a merciful manner; by involuntary euthanasia, it is meant that the person does not consent to the end of his life and yet he is put to death anyway. [3]
According to scholars, the idea of euthanasia is not a product of modern times; it is a philosophical idea of life with a long history. As early as in Ancient Greece, there was the so-called "euthanasia". [4] Since then, the idea of euthanasia has become more and more popular. [Since the 1930s, euthanasia has become a legal topic of public concern, starting in the U.K. In 1934, a British woman poisoned her 31-year-old son with gas after undergoing surgery because she was worried about his future. Initially she was sentenced to death, which was commuted to probation after two months and pardoned after three months.In 1935, the Voluntary Euthanasia Society was formed in the UK, which demanded that doctors be allowed to help their patients with euthanasia under strict control of the law. After that, in the United States, France and other Western countries, there were continuous demands for euthanasia to be legally permitted, and a human rights movement aimed at fighting for the right to a humane death and pushing for the legalization of euthanasia began to emerge worldwide.
After the Second World War, with the development of science and technology and the improvement of human rights awareness, the state and society pay general attention to the right to life, after the 1960s the issue of euthanasia has become a hot spot in the international community,[5] and also caused academic debates, the core issue is whether an individual can dominate his own life. 1976, the International Symposium on Euthanasia was held in Japan, Australia, In 1976, the International Symposium on Euthanasia was held in Japan, and representatives from Australia, Japan, the Netherlands, the United Kingdom, and the United States signed the Tokyo Declaration on Euthanasia, which emphasized respect for the "meaning of life" and the "solemn death", and advocated that under special circumstances, people should have the right to choose to die. [In September of the same year, the Governor of California signed the first "Natural Death Act" (California Health and Safety Code). [In 1980, the International Federation for the Right to Die (IFDR) was established, and has continued to promote the process of legislating euthanasia.
The world's first euthanasia law dates back to 1996, when the Parliament of the Northern Territory of Australia passed the Euthanasia Act (Rights of Dying Patients Act). The Act stipulates strict conditions for euthanasia: a patient must be 18 years of age or older and suffer from an incurable disease that prevents him or her from enduring pain, and an application for euthanasia must be submitted by the patient himself or herself and signed by him or herself. At the same time, the Act also makes detailed provisions for doctors to carry out euthanasia, and stipulates that after a patient has made a request for euthanasia and obtained a doctor's signature and consent, there shall be a cooling-off period of more than seven days and a waiting period of more than 48 hours, respectively. However, the law was repealed less than eight months after its implementation.
April 10, 2001, was a day of concern for countries around the world. After a heated debate, the upper house of the Dutch parliament passed the euthanasia bill with 46 votes in favor and 28 against, also making the Netherlands the first country in the world to recognize the legalization of euthanasia. After that, the House of Representatives of Belgium also passed a bill on euthanasia on May 16, 2002, allowing doctors to euthanize patients under special circumstances, thus becoming the second country in the world to recognize the legalization of euthanasia. The move by the Netherlands and Belgium has once again made the legalization of euthanasia an international issue.
In China, euthanasia is not an unfamiliar word. China's discussion of euthanasia originated in the 1980s. 1988, the seventh session of the National People's Congress motion, China's obstetrics and gynecology medical professionals Yan Renying and Hu Yamei for the first time put forward: "old age, sickness and death is the law of nature, but instead of letting some terminally ill patients suffer pain and suffering, it would be better to allow them to legally and peacefully to end their lives. " After that, in many National People's Congress meetings, some representatives have been calling for the legalization of euthanasia. The earliest case of euthanasia in China appeared in 1986 in Hanzhong City, Shaanxi Province, where a man named Wang Mingcheng euthanized his terminally ill mother. Wang Mingcheng was prosecuted by the procuratorial authorities for intentional homicide and was imprisoned for one year and three months before being acquitted by the court in 1992. Since then, discussions on the issue of euthanasia have appeared in the press from time to time.
Second, euthanasia and the value of the right to life
The issue of euthanasia is currently the subject of different debates in the domestic academic community, which is roughly divided into two views: those in favor of euthanasia and those against euthanasia. The main reasons in favor of euthanasia are: euthanasia is a respect for the right to choose the way of death, the implementation of euthanasia is conducive to the maintenance of the patient's own interests; life is sacred, but relative; when a person's life is close to the end, relying on a variety of modern means of sustaining an unalterable course of the disease can only be to increase the patient's suffering; for those irreversible terminal patients, should stop the ineffective and costly For those irreversible terminal patients, ineffective and costly resuscitation measures should be stopped; a strict euthanasia system should be set up to distinguish between crimes and misdemeanors. The main arguments of scholars who oppose euthanasia, on the other hand, are: human life is sacrosanct; it is the basic duty of doctors to save lives; if euthanasia is practiced, patients may lose the chance to improve; recognizing the legalization of euthanasia will bring a sense of crisis to the lives of others; and euthanasia will bring serious social problems. [8] While these arguments have different perspectives for thinking about the issue, they essentially involve the core value of the euthanasia issue, i.e., whether or not the subject of the right to life has the right to dispose of his or her own life or to decide on the benefits of life. If a person is free to dispose of his or her life or enjoy the benefits of disposing of it, then he or she can certainly choose to end his or her life by euthanasia; if he or she does not have the right to dispose of his or her life freely, then euthanasia is proved to be unjustified. On the level of whether one has the right to end one's own life, euthanasia actually involves the positioning and recognition of the right to life in the constitutional value system.
In the author's view, from the constitutional value system, euthanasia is unable to obtain the basis of constitutionality, because euthanasia is not in line with the basic values of the Constitution and the fundamental rights of the value of the goal.
First, the modern constitution takes the protection of individual rights as the starting point, and the basic rights, including life, are the duty of the state to protect. Due to cultural, religious and historical reasons, although some countries stipulate the relativity of the right to life and retain the death penalty system, there is no justification for the death penalty system in terms of constitutional value, which means that the right to life is essentially absolute. When life becomes the basic premise of individual existence, the value of life enjoyed by individuals has been integrated into the social *** homogeneous value system, whether or not to restrict and deprivation can only rely on the will of the *** homogeneous judgment and decision.
Secondly, euthanasia is not characterized as a fundamental right. As a kind of subjective individual right, the basic right is first of all the right of defense against the state power, and the typical object of its confrontation is the state power. Whether euthanasia can become a constitutional issue is worth considering in this regard, because the legal relationships involved in euthanasia are mainly between private individuals, i.e., patients, doctors and their families, etc., and the judgment of these private interests is usually regulated by private law. However, the final decision on euthanasia, especially when there is a conflict between private individuals that needs to be adjudicated by a judge, the relationship between private interests takes on a strong public law character. From the viewpoint of modern constitutionalism, the decision on the right to life cannot be exercised by private individuals. At the same time, as an objective value order, the fundamental rights are mainly embodied in the intrinsic value pursuits of the social *** cohort. At the level of an objective value order, a private person does not have the right to end his or her own life. Therefore, human life is one of the most important social values, and is the basic constituent unit of the social ****some, and the disposition of one's own life is not only the free choice of the private citizen, but also affects the value choice of the whole social ****some. In this sense, private individuals do not possess a legal right to suicide or a right to euthanasia.
Third, euthanasia cannot be supported by constitutional texts. In the constitutions of Western countries, most of them do not directly stipulate the right to life, but this does not mean that Western constitutions are indifferent to the right to life. In fact, the West is in the development of human rights culture gradually formed a system of fundamental rights, the value of life has been integrated into the individual life, through the mature constitutional interpretation can seek the textual basis of the right to life. In our country, the development of the constitution and the cultivation of constitutional culture is relatively short, we are in the lack of mature right to life culture in the context of the construction of the rule of law, the more need to emphasize the value of the right to life as the basis of fundamental rights.
Fourth, euthanasia is in conflict with the ontological value of the right to life. Some scholars divide the development of the concept of the right to life into three stages, namely, the sanctity of life theory, the quality of life theory and the value of life theory,[9] and try to seek the basis for justification of euthanasia from the perspective of the value of life theory. In the author's opinion, the division of the three-stage concept of the right to life ignores the interconnectedness of the forms of the right to life at different stages, confuses the value connotation between the concepts of life and the right to life, and, at the same time, on the basis of the lack of empirical information, it is inappropriate to rely solely on the value level to argue the right attributes of the right to death. In fact, the development of modern science and technology has made the prolongation of human life no longer just a dream or the privilege of a few. The advancement of medical technology has made it possible for human beings to overcome many diseases and to prolong their lives. Therefore, the development of science and technology has invariably provided a strong technical guarantee for the continuation and safeguarding of mankind's right to life. However, there are still some diseases that modern science and technology can do nothing about, and in front of these diseases, human beings appear particularly vulnerable. Under the torment of disease, human life will slowly disappear, and the patient will also die in the relentless devouring of the disease, in the endless pain and fear. This process is extremely painful, and not only does the patient himself have to endure the pain, but also his family members have to share the pain. Under such circumstances, can the constitutional right to life give way to euthanasia in terms of value? Supporters of euthanasia argue that prolonging a patient's time is tantamount to increasing the patient's suffering when the patient's condition is uncontrollable, and that it is better for the patient to choose a dignified way of death to maintain the final dignity of his life rather than to live a life that is worse than death. The opponents believe that human life is the most precious treasure in the world, and that this treasure belongs to everyone in the whole society, not just to individual citizens. If individual citizens give up their lives for the sake of their own momentary interests, they are in fact giving up their responsibilities as members of the same social body, and they are being irresponsible to their families, parents and other citizens. Moreover, with the development of modern science and technology, medical technology is also rapidly changing, today is incurable disease, tomorrow may be the medicine to the disease. Therefore, to preserve one's life is to preserve one's hope. Instead of ending one's life in despair, it is better to wait in hope, which gives one's life a respect and gives other people a kind of hope.
In short, from the viewpoint of the social value of the right to life, euthanasia may result in a violation of the right to life, a violation of the state's obligation to safeguard its citizens, and contradicts the basic value of the Constitution.
Third, euthanasia and human dignity
One of the important reasons for supporting euthanasia is to preserve human dignity. It is argued that withholding the right to recognize the legitimacy of patients who request euthanasia risks violating human dignity and is inconsistent with humanitarian principles. There is no doubt that human dignity and the right to life are the most basic and fundamental rights enjoyed by human beings, and constitute the rational and moral foundation of a society governed by the rule of law. In a certain sense, constitutional law responds to the intrinsic needs of human beings as a starting point, and always takes the maintenance of human dignity and the value of life as its historical mission. So, on the issue of euthanasia, what kind of legislative policy is more conducive to the maintenance of human dignity? This is a complex issue involving constitutional value theory and the development of the rule of law.
First, the constitutional "human dignity" is a value system. When judging whether a public *** policy or national legislation is in line with the principle of human dignity, we need to consider the following questions: whether it is conducive to the establishment of a culture and policy of respect for life in society? Does the society's popular expectation of the right to life strengthen or waver? Perhaps the prohibition of euthanasia may bring suffering in the case of a particular individual, but is this suffering necessarily realized at the expense of social justice? Human dignity is both a concept of human feeling as well as a concept in practice, and one cannot think about the policy tendencies of a country and society only in terms of justice in individual cases.
Secondly, if the legalization of euthanasia is justified solely on the basis of the preservation of human dignity, it is possible that the dignity of other human beings will be sacrificed at the same time. Currently, on the issue of legalizing euthanasia, many countries have taken a conservative and neutral stance and have not legalized it. Here too, countries are considering the same value of human dignity. When suicide is legalized and euthanasia is legalized in the environment, are the obligations of the state and society to respect the right to life effectively fulfilled? At least in our current social situation, the rush to give euthanasia a basis of legality and legitimacy may lead to a decline in the value of the right to life, and even provide a legitimizing basis for the state to shirk its obligation to guarantee the right to life. Whether it is the theory of the value of the right to life or the theory of the quality of the right to life, if the sanctity of life is missing, it can not fully reflect the dignity of its subjects.
Again, the constitutional concept of human dignity is constantly evolving. At present, "death with dignity" is a new form of rights, its connotation is, die with dignity, but it is different from euthanasia, as some scholars put forward, death with dignity refers to the death of dignity, according to their own will, die "like a man", the two are the purpose and the quality of life, the lack of the sanctity of life. As some scholars have suggested, death with dignity refers to dying with dignity, being able to die "in a dignified manner" according to one's own wishes, and the two are the relationship between ends and means. [10] There is also a cross-cutting area between the two, which the Japanese scholar Akira Ishihara calls "dignified euthanasia". In his opinion, the main difference between the two is in the field and method of existence: euthanasia mainly refers to patients in advanced stages of life who are conscious but suffering from terminal illnesses, whereas death with dignity refers to patients who are unconscious and unable to feel the pain of their illnesses, but are suffering terribly due to their illnesses, including vegetative patients; euthanasia is usually carried out in a positive way, for example, through medication, whereas death with dignity is a negative way, i.e., the way of removing life-sustaining instruments. life-supporting instruments by way of euthanasia. [11] Whether it is active or passive euthanasia, the expression of the patient's consciousness at the time of death with dignity is a prerequisite; in general, the expression of the patient's consciousness is clearer in the case of active death with dignity, but in the case of passive death with dignity, the basis for the legitimacy of the so-called death with dignity cannot be confirmed due to the fact that the patient is in a state of vegetative state and so on and is not able to express his true consciousness. [12] For such reasons, some states in the United States encourage people to write a good will before they are born, clearly indicating that they are willing to choose the way of death with dignity when they are incurable due to illness or in a vegetative state. It is justified by the fact that, regardless of whether the state recognizes euthanasia or not, having a more certain indication of consciousness for a given individual when he or she is faced with choosing a way to die can enable doctors and families to find certainty. In conclusion, although death with dignity and euthanasia have some connection, they are different concepts, and death with dignity cannot be the only basis for legalizing euthanasia. [13]
Four: The Constitutional Limits of Legalizing Euthanasia
Currently, one of the difficulties facing euthanasia is the issue of legalization. Some countries have been pushing for its legalization, but its progress is very slow. At present, the only countries in the world that have fully legalized euthanasia are the Netherlands and Belgium, and there are also some countries that have sought legal ways through jurisprudence and other forms. There may be a constitutional value of the boundaries, if the constitutional value of the problem can not be resolved, the legalization of euthanasia still can not get the justification of the basis.
In fact, the cost of enacting or amending a law is not high for a country. Legislation is often the process by which countries develop a social **** knowledge in the governance of their societies. Especially in countries with a tradition of statutory law, when social public opinion raises some issues, often consider responding to the needs of society through the form of legislation, to provide a unified model of behavior for the behavior of members of society. But why is it that of the more than 190 countries in the world, only two have so far clearly legalized it? This is something we should think about in depth. Due to the differences in history, culture, religion and other traditions of different countries, people's views on euthanasia are different, and even in countries where it has been legalized different classes may not have the same values on the issue of euthanasia. In the author's opinion, the main difficulties in legalizing euthanasia at present are: ethically, there is still a need to form a clearer social **** knowledge; legally, there is still a lack of justification basis; constitutionally, the value is still unable to transcend the sanctity of life; in the implementation of euthanasia, it is difficult to eliminate the conflict between the individual autonomy and the social **** homogeneous value; and in the social evaluation of euthanasia, the possible abuse of the right will lead to a social shaking of the value of life.