The legal situation in the Federal Republic of Germany

From a legal point of view the euthanasia issue touches primarily upon criminal law. Here, euthanasia is rarely explicitly regulated by the respective national legislation. In concrete cases it is assessed whether the criteria for the offences of "killing by a third party" ("Fremdtötung") as defined by § 211 (murder), §§ 212 and 213 (manslaughter) and § 216 (Killing upon request) of the German Criminal Code (Deutsches Strafgesetzbuch; StGB) are satisfied. Insofar as physicians are involved, regulations of the medical professional law, respectively the Professional Code for Physicians of the particular State Chamber of Physicians (Landesärztekammer) apply.

According to German law, suicide does not constitute a criminal act, meaning that assisted suicide is also not punishable by law. What is looked at in court practice, however, is the question of whether other facts and circumstances constituting a criminal offence, such as manslaughter or omission (§ 323c StGB), apply. If assistance in committing suicide is given by a physician or close relative, the guarantor position, that such persons assume vis-à-vis the patient wishing to die, is of significance. The guarantor position includes the criminal offence due to omission, that follows, if the criminal occurrence of an action (e.g. battery) was not omitted by a person even though they would have been obligated to. In the Federal Republic of Germany, a continuous debate takes place about a new legal regulation of euthanasia.

Discussion for a new legal regulation of euthanasia in Germany

After the Secretary of Health Herman Gröhe (CDU) pronounced his support of the criminalization of organized assisted suicide of severely ill people in 2014, the Great Coalition of CDU/CSU and SPD decided on an according legislative procedure. On November 13, 2014 an orientation debate was held in the German Bundestag on the topic of "Assisted Suicide". In the following, parliamentary groups elaborated four law proposals that reached from the complete prohibition of assisted suicide to an extensive legislation. Following a vote without party discipline on all four law proposal on November 5, the Bundestag, the law proposal of the member group around Michael Brand (CDU) and Kerstin Griese (SPD) was finally approved which criminalized organized, “commercial” furtherance of suicide. The wording “commercial” is understood to refer to organised and profit-oriented acting of associations and individuals, set on repetition. The law was determined to create a new criminal offense in the German Criminal Code, resulting subsequently in the controversial § 217.

Debate on Section 217

In the newly enacted section 217, the wording read as follows::

(1) Whoever, with the intention of assisting another person to commit suicide, provides, procures or arranges the opportunity for that person to do so and whose actions are intended as a recurring pursuit incurs a penalty of imprisonment for a term not exceeding three years or a fine.

(2) A participant whose actions are not intended as a recurring pursuit and who is either a relative of or is close to the person referred to in subsection (1) is exempt from punishment.

Case decisions of doctors that guarantee assistance for suicide should remain unpunishable. Relatives and related persons of the dying should be excluded from this penalty in specific cases. Since then, the resulting legal situation has been increasingly perceived as a situation of legal uncertainty and criticized. The wording "commercial" was actually aimed at banning professional euthanasia organizations. The wording, that was used in the legal text, however leaves it unclear whether and to what extent doctors and palliative care physicians are also affected by the threat of punishment for providing pain-relieving drugs that either accelerate the onset of death or can be used by the patient in high doses specifically for suicide. Even a conversation about assisted suicide seemed to many doctors to be criminally risky.

Therefore, several constitutional complaints against § 217 have been filed.

Decision of the Federal Constitutional Court of February 26, 2020

While in 2017, a constitutional complaint has still been rejected, the Federal Constitutional Court agreed with the appeals with their decision of February 26, 2020, and declared the respective passages of § 217 as unlawful. As a justification, the Act refers to the high value of the right of self-determination and free development of the individual which, even for the purpose of ensuring other rights, should not be disproportionally limited. According to the constitutional judge, these general personal rights, which are laid down in Article 2 of the Basic Law, include, “the right to self-determined death as an expression of personal autonomy”. The freedom to take one’s life also comprises the freedom to seek help from a third party and, provided this help is offered, to make use of it. However, the state's duty to protect may take precedence if it is established that the person concerned is subject to external influences that restrict their self-determination. The right to freedom could therefore be restricted by the state's precautionary measures. Despite the recognition of the right to self-determined death by legislation, the state is allowed to pursue and expand suicide prevention and the strengthening of palliative medical treatment locations and services. If a person wishes to commit suicide, they are usually dependent on the help of a third party. This is often a medical professional who must at least prescribe the medication required to end the person's life. Their willingness to do so has so far been rather low. Despite the change in the law, medical professionals cannot be obliged to provide assisted suicide. The right to a self-determined death does not give rise to a claim against third parties for assisted suicide.

New legal regulation of euthanasia in Germany 2023

Following the Federal Constitutional Court's ruling in 2020, the debate on regulating assisted suicide continues. On July 6, 2023, two draft laws for a new regulation of assisted suicide were presented in the Bundestag, both of which, however, fell short of a majority. The draft of the group around member Lars Castellucci proposes a limited criminal liability as well as the development of a protection concept, so that the assistance in suicide in organized ("commercial") form would be anchored in the penal code by the reintroduction of § 217 but would be allowed under certain conditions. These conditions would include psychiatric or psychotherapeutic assessments to exclude any autonomy-limiting mental illness or other factors that might affect free choice. The other draft put forward by the group around members Katrin Helling-Plah, Renate Künast and others proposes a general impunity as well as a new assisted suicide law with a focus on a counselling concept. This includes the establishment of state-approved counselling centres based on the conception that every person has the right to end their own life out of an autonomously formed free will and to call on the help of third parties. Whereas the first draft drew criticism for the renewed regulation in the Penal Code, which would help neither those affected nor doctors and ran the risk of criminalizing assisted suicide, the second draft drew criticism primarily for the fact that it treated people in vulnerable crisis or borderline situations too lightly and ran the risk of normalizing suicide in society. The attempt to find a standardized regulation for heterogeneous groups of people was criticized in both drafts.

At the same time, a proposal to expand state suicide prevention was passed by a large majority. It foresees for the development of a draft law by 2024 as well as a draft concept for a stronger expansion of suicide prevention services and a nationwide prevention service.