First, the concept and evolution of euthanasia
The word euthanasia comes from the Greek word euthanasia, which means "happy" death. [1] has two meanings: one is painless death, and the other is painless death surgery. In our country, the general understanding of euthanasia is that when the terminally ill patient is in a state of extreme mental and physical pain, at the request of the patient and his relatives and friends, with the consent of the doctor, the patient will end his life in a humane way in a painless state. According to the different characteristics of euthanasia, scholars divide euthanasia into different types, such as active and passive euthanasia, ordinary and extraordinary euthanasia, intentional and unintentional euthanasia, voluntary and involuntary euthanasia. [2] In the classification of euthanasia, the most common classification is voluntary euthanasia, involuntary euthanasia and involuntary euthanasia. The so-called voluntary euthanasia means that the parties themselves voluntarily, hope and demand euthanasia; The so-called involuntary euthanasia means that the person concerned has lost the ability to choose or live, but is executed or let die in a kind way; The so-called involuntary euthanasia means that the person concerned does not agree to end his own life, but is still executed. [3]
According to scholars' research, euthanasia is not a modern product, but a philosophy of life with a long history. As early as in ancient Greece, there was a so-called "solution to death". [4] Since 1930s, from Britain, euthanasia has gradually become a legal topic of public concern. 1934, an English woman was worried about her 3/kloc-0-year-old son's future after surgery and poisoned him with gas. At first, she was sentenced to death, suspended for two months and pardoned three months later. 1935, the voluntary euthanasia association was established in Britain, requiring doctors to help patients with euthanasia under strict control of the law. Later, in the United States, France and other western countries, people constantly demanded that the law allow euthanasia, and a human rights movement began to appear around the world to fight for the right to humane death and promote the legalization of euthanasia.
After World War II, with the development of science and technology and the improvement of human rights awareness, the state and society generally pay attention to the right to life. After the 1960s, euthanasia became a hot topic in the international community, [5] which also caused academic debate. The core question is whether an individual can control his own life. During 1976, an international symposium on euthanasia was held in Japan. Representatives from Australia, Japan, the Netherlands, Britain, the United States and other countries signed the Tokyo Euthanasia Declaration, stressing that "the meaning of life" and "solemn death" should be respected, and people have the right to choose death under special circumstances. [6] In September of the same year, the governor of California signed the first natural death law (California Health and Safety Law). [7] This law allows adult patients to authorize doctors to shut down life-sustaining medical equipment after writing down the so-called "living doctor's advice". 1980, the international Federation of the right to die was established, which constantly promoted the legislative process of euthanasia.
The first euthanasia law in the world can be traced back to 1996, the euthanasia law (the law on the rights and interests of terminally ill patients) passed by the Northern Territory Council of Australia. The law stipulates strict euthanasia conditions: the patient who accepts euthanasia must be over 18 years old, and suffer from an incurable disease and can't stand the pain. The application for euthanasia must be submitted by myself and signed by me. At the same time, the law also makes detailed provisions on doctors' euthanasia, stipulating that patients should have a "cooling-off period" of more than 7 days and a "waiting period" of more than 48 hours after they request euthanasia and get the doctor's signature. However, the law was abolished less than eight months after its implementation.
200 1 April 10 is a day that deserves the attention of all countries in the world. After a heated debate, the House of Lords of the Dutch Parliament passed the euthanasia bill with 46 votes in favor and 28 votes against it, which also made the Netherlands the first country in the world to recognize the legalization of euthanasia. Later, the Belgian House of Representatives also passed the Euthanasia Act 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. This move by the Netherlands and Belgium once again makes euthanasia legal an international topic.
Euthanasia is not a strange word in China. China's discussion on euthanasia originated in 1980s. In the bills No.65438-0988 of the Seventh National People's Congress, Yan and Hu Yamei, famous figures in the field of obstetrics and gynecology in China, put forward for the first time: "Birth, aging, illness and death are natural laws, but it is best to let some terminally ill patients end their lives legally and peacefully." At the subsequent sessions of the National People's Congress, representatives have been calling for the legalization of euthanasia. The earliest euthanasia case in China appeared in Hanzhong City, Shaanxi Province on 1986. A man named Wang Mingcheng euthanized his terminally ill mother. Therefore, Wang Mingcheng was prosecuted by the procuratorate for intentional homicide. Detained 1 year and 3 months, 1992 was acquitted by the court. Since then, discussions about euthanasia have appeared in newspapers from time to time.
Second, the value of euthanasia and the right to life
At present, there are different arguments about euthanasia in domestic academic circles, which are generally divided into two views: for and against. The main reasons in favor of euthanasia are: euthanasia respects people's right to choose the way of death, and euthanasia is conducive to safeguarding patients' own interests; Life is sacred, but it is also relative; When a person's life is coming to an end, relying on various modern means to maintain an unchangeable course of disease can only increase the pain of patients; For those irreversible dying patients, ineffective and expensive rescue measures should be stopped; Establish a strict euthanasia system and distinguish between crime and non-crime. The main viewpoints of scholars who oppose euthanasia are: human life is sacred and inviolable; Saving lives is the basic duty of doctors; If euthanasia is carried out, patients may lose the opportunity to improve; Admit that the legalization of euthanasia will bring a sense of crisis to others' lives; Euthanasia will bring serious social problems. [8] Although these arguments have different perspectives, they all involve the core value of euthanasia in essence, that is, whether the subject of life has the right to dispose of his own life or the right to decide the interests of life. If a person can dispose of his own life freely or enjoy the benefits of disposing of his life, then he can of course choose to end his life by euthanasia; If he does not have the right to dispose of his life freely, euthanasia will be proved to be improper. On the level of whether you have the right to end your life, euthanasia actually involves the positioning and understanding of the right to life in the constitutional value system.
The author believes that from the perspective of constitutional value system, euthanasia can not obtain constitutional basis, because euthanasia does not conform to the basic values and rights of the constitution.
First, the modern constitution is based on the protection of individual rights, and the basic rights, including life, are the obligation of the state to protect. Due to cultural, religious, historical and other reasons, although some countries have stipulated the relativity of the right to life and retained the death penalty system, the death penalty system is not justified in constitutional value, that is to say, the right to life is absolutely necessary. When life becomes the basic premise of individual existence, the value of life enjoyed by individuals has been integrated into the isomorphic value system of society, and whether to restrict or deprive it can only be judged and decided by the isomorphic will.
Second, euthanasia does not have the characteristics of basic rights. As a subjective individual right, the basic right is first of all the right of defense against state power, and the typical object of its confrontation is state power. At this point, it is worth considering whether euthanasia can become a constitutional issue, because the legal relations involved in euthanasia are mainly private relations, that is, patients, doctors and their families, and the judgment of these private interests is usually adjusted by private law. However, the final decision of euthanasia, especially when the conflict between private individuals needs to be decided by a judge, the interest relationship between private individuals has a strong public law nature. From the perspective of modern constitutionalism, the right to decide on life cannot be exercised by private individuals. At the same time, as an objective value order, basic rights are mainly reflected in the pursuit of social intrinsic value. From the objective value order, individuals have no right to end their own lives. Therefore, human life is one of the most important social values and the basic unit of the whole society. The punishment of one's own life is not only the free choice of individual citizens, but also affects the value choice of the whole society. In this sense, private individuals do not have the legal right to commit suicide and the right to euthanasia.
Third, euthanasia cannot be supported by the constitutional text. In the constitutions of western countries, most countries do not directly stipulate the right to life, but this does not mean that the constitutions of western countries ignore the right to life. In fact, the basic rights system was gradually formed in the development of western human rights culture, and the value of life has been integrated into individual life. The text basis of the right to life can be found through a mature constitutional interpretation. In China, the development of constitution and the cultivation of constitutional culture are relatively short. We are building the rule of law under the background of lacking a mature culture of the right to life, and we need to pay special attention to the value of the right to life as the basis of basic rights.
Fourthly, euthanasia conflicts 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 theory of life sacredness, the theory of life quality and the theory of life value [9], trying to find the basis for the justification of euthanasia from the perspective of life value theory. The author thinks that dividing the concept of right to life into three stages ignores the relationship between the forms of right to life in different stages and confuses the value connotation of right to life and the concept of right to life. At the same time, based on the lack of empirical data, it is not appropriate to demonstrate the right attribute of the right to death only by relying on the value level. In fact, with the development of modern science and technology, the extension of human life is no longer just a dream, nor is it just the privilege of a few people. The development of medical technology enables human beings to overcome many diseases and prolong their life. Therefore, the development of science and technology provides a strong technical guarantee for the continuation and protection of human right to life. However, there are still some diseases that modern technology can't do. Faced with these diseases, human beings are particularly vulnerable. Under the torture of disease, people's lives will gradually disappear, and patients will slowly die in the relentless swallowing of disease and endless pain and fear. This process is extremely painful, not only the patient himself has to endure this pain, but also the patient's family members have to share this pain. In this case, can the constitutional right to life give way to euthanasia in value? Supporters of euthanasia believe that extending the patient's time is tantamount to increasing the patient's pain when the patient's condition is out of control. For patients, it is better to choose a dignified way of death to maintain the final dignity of their lives than to linger on like this. Opponents believe that human life is the most precious wealth in the world, which belongs to everyone in the whole society, not just individual citizens. If individual citizens give up their lives for their own temporary interests, they actually give up their responsibilities as members of the same society, that is, they are irresponsible to their families, parents and other citizens. Moreover, with the development of modern science and technology, medical technology is also changing with each passing day. Today it is an incurable disease, and tomorrow it may be cured by drugs. Therefore, to save one's life is to save one's hope. It is better to wait in hope than to end one's life in despair, which not only gives one's life a respect, but also gives others a hope.
In short, from the social value of the right to life, euthanasia may cause violations of the right to life, the obligation of the state to protect citizens, and the basic values of the Constitution.
Thirdly, euthanasia and human dignity.
An important reason for supporting euthanasia is to safeguard human dignity. People think that if the legitimate rights of patients who require euthanasia are not recognized, it may infringe on human dignity and not conform to 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 the rational and moral basis of a society ruled by law. In a sense, constitutional science is based on people's inner needs and always takes safeguarding people's dignity and life value as its historical mission. Then, what kind of legislative policy is more conducive to safeguarding human dignity on euthanasia? This is a complex issue involving the constitutional axiology and the development of the rule of law.
First of all, the "human dignity" in the Constitution is a value system. When judging whether a public policy or national legislation conforms to the principle of human dignity, we need to consider the following questions: Is it conducive to establishing a culture and policy that respects life in society? Has the public's expectation for the right to life been strengthened or shaken? Perhaps forbidding euthanasia may bring pain to a specific individual, but does this pain have to be realized at the expense of social justice? Human dignity is not only a human concept, but also a practical concept. We can't think about the policy trend of a country and society just by the justice of a case.
Secondly, if euthanasia is legalized only on the grounds of safeguarding human dignity, it may also sacrifice the dignity of others. At present, many countries take a conservative and neutral position on the legalization of euthanasia, but it has not been legalized. Here, countries are also considering the same value of human dignity. With the legalization of suicide and euthanasia, has the obligation of the state and society to respect the right to life been effectively fulfilled? At least in the current social situation of our country, it may lead to the decline of the value of the right to life, and even provide a legal basis for the state to shirk its obligation to protect the right to life. Whether it is the theory of life value or the theory of life quality, if it lacks the sanctity of life, it will not fully reflect the dignity of its subject.
Third, the concept of human dignity in the Constitution is constantly developing and changing. At present, "death with dignity" is a new form of rights. Its connotation is to die with dignity, but it is different from euthanasia. As some scholars have put forward, to die with dignity means to die with dignity and be able to die like a statue according to your own wishes. The two are the relationship between ends and means. Those who oppose euthanasia do not necessarily oppose dignified death, and those who agree with dignified death do not necessarily agree with euthanasia. [10] There are also overlapping areas between them, which Japanese scholar Ishihara Ming called "euthanasia with dignity". In his view, the main difference between the two lies in the field and way of existence: euthanasia mainly refers to terminally ill patients who are conscious but suffering from terminal diseases, while death with dignity refers to patients who are unable to feel the disease because of losing consciousness, but suffer from the disease, including vegetative patients; Euthanasia is usually carried out in a positive way, such as through drugs, while a dignified death takes a negative way, that is, by removing life-sustaining instruments. [1 1] Whether it is active euthanasia or passive euthanasia, the conscious expression of patients when they die with dignity is the premise. Generally speaking, the expression of patients' consciousness is relatively clear when they die with dignity. However, in death with dignity's passive death, because the patients are in a vegetative state and can't express their true consciousness, the so-called death with dignity's legitimacy can't be confirmed. [12] To this end, some states in the United States encourage people to write wills before they die, clearly indicating that they are willing to choose a dignified way of death when they are unable to cure diseases or are in a vegetative state. Its rationality lies in that whether the country recognizes euthanasia or not, for a specific individual, when he or she is faced with the choice of death mode, he or she has a relatively certain expression of consciousness, which can make doctors and their families find a certain basis. In a word, death with dignity and euthanasia are related to some extent, but they are different concepts, and death with dignity cannot be the only basis for the legalization of euthanasia. [ 13]
Fourthly, the constitutional boundary of euthanasia legalization.
At present, one of the difficult problems facing euthanasia is legalization. Some countries have been promoting the process of legalization, but its progress is very slow. At present, the only countries in the world that completely legalize euthanasia are the Netherlands and Belgium, and some countries seek legal channels through precedents and other forms. There may be a boundary of constitutional value here. If we can't solve the problem of constitutional value, the legalization of euthanasia still can't get the basis of legitimacy.
In fact, for a country, the cost of making or amending a law is not high. Legislation is often the process of forming social consciousness in social governance. Especially in countries with a written law tradition, when public opinion raises some questions, it will often consider adopting legislation to respond to social needs and provide a unified behavior model for the behavior of social members. But why are only two countries 190 or more legalized in the world so far? This is something we should think deeply about. Due to the differences in history, culture, religion and other traditions in different countries, people have different views on euthanasia. Even in countries that have been legalized, different classes may not have the same values on euthanasia. The author believes that the main problems existing in the legalization of euthanasia at present are: in ethics, it is still necessary to form a clear social consciousness; Legally, it still lacks legitimacy; On the constitutional value, it still can't surpass the sanctity of life; In the implementation of euthanasia, it is difficult to eliminate the conflict between individual autonomy and social identity values; In the social evaluation of euthanasia, the possible abuse of rights will lead to the social vacillation of the value of life.