Self-determination – and now?

The current debate on assisted suicide

I. State of affairs

In a ruling on 13 March 2024, the Federal Supreme Court acquitted the doctor and Vice President of Exit Western Switzerland, Pierre Beck. In 2017, he had helped an 86-year-old woman of sound mind to commit suicide together with her sick husband. He was subsequently charged by two Geneva courts with offences first against the Therapeutic Products Act and then against the Narcotics Act. The written judgement of the Federal Supreme Court's public deliberations has not yet been published, but the official media release states: "The medical administration of sodium pentobarbital to a healthy person is not medically indicated and serves no therapeutic purpose. Rather, it raises exclusively ethical and moral questions. [...] If necessary, it would be up to the legislator to adapt the legal basis for the medical administration of sodium pentobarbital to a healthy person to the ethical and moral concepts that are shared by the majority of society. Finally, it should be pointed out that, despite the absence of penal provisions in current law, a doctor may not simply dispense sodium pentobarbital to a healthy person. He runs the risk of having to assume his professional responsibility as a doctor, whether under civil or administrative law."

In his commentary in the NZZ am Sonntag of 7 April 2024, Ludwig A. Minelli welcomes the acquittal and at the same time opposes the option mentioned by the court of a legal regulation of the medical dispensing of the means of suicide. The founder of the assisted suicide organisation "Dignitas" sums up: "The ruling means that in Switzerland, a doctor can prescribe the optimal means for an assisted suicide to a person who is not suffering from an illness." And then comes what Minelli is as sure of as the Amen in church: "The Geneva indictment was triggered by statements made by the private foundation Swiss Academy of Medical Sciences (SAMS), which, under the influence of a Catholic moral theologian at the University of Fribourg i. Ü., believed that doctors should not issue prescriptions in such cases." The Fribourg moral theologian in question is Markus Zimmermann, one of the most renowned experts on the Swiss and international debate on euthanasia, a long-standing member of the Central Ethics Committee (CEC) of the Swiss Academy of Medical Sciences (SAMS), President of the Steering Committee of the Swiss National Science Foundation Project 67 End of Life and President of the National Ethics Committee for Human Medicine (NEK). The unrealistic affect logic of assisted suicide activists against theology has a long history and has not lost its appeal as an anti-liberal bogeyman to this day.

The clan liability of theology and the SAMS is remarkable in this rather dusty attack. In 1976, the SAMS presented its first guidelines on "euthanasia", which were either revised and adapted in 1981, 1995, 2003, 2004, 2013, 2018 and most recently in 2021, completely revised or supplemented by complementary guidelines on individual aspects of end-of-life decisions. A new situation arose during the revision in 2018 because, for the first time, a medical-ethical guideline from the SAMS was not adopted by the Swiss Medical Association (FMH). The disagreement centred on what the FMH considered to be an inadequate demarcation between medicine and assisted suicide. The compromise proposal submitted by a working group consisting of members of both institutions, which was adopted by the FMH in 2021, contains two key additions: For medical involvement in assisted suicide, it explicitly states that the doctor "cannot, however, be obliged to do so under any circumstances". And with regard to the medical criteria for assisted suicide, the following is explicitly stated: "Assisted suicide in healthy persons is not ethically justifiable within the meaning of these guidelines." The last formulation, which has repeatedly been the subject of controversial debates in the SAMS and FMH, is contradicted by the decision of the Federal Supreme Court, which apparently includes the SAMS position among the "ethical and moral concepts [...] that are shared by the majority of society".

The judgement of the highest court problematises a well-established and functioning practice with a considerable legal hook. The Code of Professional Conduct has a prominent significance for the legal situation. For over 90 % of Swiss doctors who are members of the FMH, the Code of Professional Conduct and the guidelines adopted by the SAMS are binding. In addition, courts refer to the Code of Professional Conduct when interpreting laws and ordinances and cantonal legislation. The following objection is raised against this practice: "The reliance of state authorities on guidelines drawn up by a private association is problematic from the point of view of the rule of law. The SAMS guidelines are drawn up by committees that have no democratic legitimisation. Prior to their adoption by the SAMS Senate, a consultation process is organised in which all interested parties can participate. After the consultation, however, it is left to the discretion of the committee to decide what to include in the guidelines from any criticism expressed. However, this criticism is not directed at the FMH or the SAMS, but at the state legislature, which regularly fails to enact rules in ethically sensitive areas." The criticism levelled at the Federal Council, which is also echoed in the media release on the recent Federal Supreme Court ruling, points to a delicate point: should the legislator push for explicit legal regulation "on such a controversial and sensitive topic" and thus create legal normality? Or should it refrain from doing so, given the highly personal and existential nature of the issue?

The discussion is not new, but rather appears cyclically in different variations, but does not irritate an astonishingly unspectacular overall picture. The legal basis for assisted suicide was created with the first Swiss Criminal Code, which came into force in 1942. At the very time when euthanasia was elevated to a social Darwinist state doctrine in the neighbouring National Socialist country, Switzerland established Article 115 of the Swiss Criminal Code, which declares assisted suicide to be exempt from punishment if it is not carried out for selfish reasons. Since then, this article of the Swiss Criminal Code has very rarely become the subject of political debate: in the 1994-2004 debate on a revision of Art. 114 StGB, killing on demand, and in the 2008-2010 debate on a tightening of Art. 115 StGB to better control assisted suicide organisations. Both concerns literally vanished into thin air due to personnel changes in the Federal Council. The few rulings of the Federal Supreme Court deal mainly with the question of the permissibility of prescribing sodium pentobarbital to people with a mental illness. Two judgements concerning the two red lines of assisted suicide received greater public attention: on the one hand for people with a mental illness and on the other hand for healthy people or people who are not in a terminal phase of illness.

In its 2006 leading decision on the complaint of a person suffering from a severe bipolar affective disorder who had unsuccessfully sued for the over-the-counter dispensing of a suicide drug, the Federal Supreme Court stated: "If the wish to die is based on an autonomous decision that takes account of the overall situation, then under certain circumstances even mentally ill persons may be prescribed sodium pentobarbital and thus be granted assisted suicide [....] Whether the conditions for this are met cannot be assessed in isolation from specialised medical - in particular psychiatric - knowledge and proves to be difficult in practice; the corresponding assessment therefore necessarily requires the availability of an in-depth psychiatric expert opinion". In 2010, the Federal Supreme Court confirmed a decision by the Zurich Administrative Court, which had refused to prescribe a suicidal drug for an 82-year-old woman who was capable of judgement because she was not in an end-of-life phase of illness as defined by the SAMS guidelines. The woman then brought an action before the European Court of Human Rights (ECHR) for violation of her right to choose how and when to end her life. In its judgement of 14 May 2013, the ECtHR recognised a violation of Article 8 of the European Convention on Human Rights (ECHR; right to respect for private and family life) by Switzerland because the legislator had not issued sufficiently clear regulations on the handling of the right to end of life. The court does not decide whether the woman is entitled to the prescription, nor what an appropriate legal situation should look like, but merely establishes the need for legal regulation.

What sounds rather abstract to the legally unmusical ear has far-reaching normative consequences. According to federal court rulings, prescribing a suicidal drug for a healthy person does not violate the Therapeutic Products and Narcotics Protection Act. A refusal can therefore not be based on currently applicable law, but solely on the Medical Ethical Guidelines of the SAMS or the FMH Code of Ethics. And this normative reference is increasingly being called into question: "The extent to which the administration of NaP to sick or healthy persons willing to die should be permitted is a normative question. This must be regulated by the legislator. The SAMS guidelines on 'Dealing with dying and death' cannot therefore be used to assess the extent to which assisted suicide is permissible; otherwise it would be an unconstitutional delegation of legislation to a private organisation in an important area." The cautious judgements of the Federal Supreme Court could be read as an indication "that there is a lack of sufficient public health interest for a ban on assisted suicide in favour of healthy persons capable of judgement".

2. The theological-ethical discussion of assisted suicide

The ethical discussion of assisted dying and assisted suicide is characterised by the applicable legal situation, which differs greatly in Europe. The longstanding North-South divide, with liberal legislation in the more secularised countries of the North and strict prohibitions in the Catholic countries of Southern Europe, is slowly disappearing. The liberal regulations in the Benelux countries, followed by Switzerland, continue to stand out from the other European countries. The differences can also be seen in the ethical and ecclesiastical-theological discussions. Of particular interest are the developments in German-speaking countries (Germany, Austria, Switzerland), where ethical and theological discourses are conducted on a transnational basis and where Switzerland has not played a pioneering role, which is increasingly being levelled out. The history of the ethical and theological-ethical debate on assisted suicide can be roughly divided into four phases, starting in Switzerland:

1st phase of resistance: from the traditional concept of life as a gift from God follows the unconditional duty to preserve life (suicide as rebellion against God and his commandments);

2nd phase critical of medicine: against a medical functional logic that binds people powerlessly to their lives (1968: definition of brain death by the Ad Hoc Committee of Harvard Medical School; 1982: founding of EXIT);

3rd individualisation phase: successive decoupling of illness-related suffering at the end of life from the medical diagnosis (incommensurability between personal suffering and medical-ethical decision);

4th privatisation phase: institutional functionalisation and demoralisation of assisted suicide and accompaniment (liberal privatisation of the good).

In short, the common thread of the development is (1) a refocusing from the community to the individual person and (2) the transformation of negative rights of defence (to what may not be done to any person) into positive rights of entitlement (to what may not be denied to any person). Critical voices saw this as an ethical slippery slope, an ethical argumentation on a slippery slope. Based on the primacy or monopoly of validity of tradition, social moral dynamics appear as a normative history of subtraction or decay. The dam-break argument follows the slogan "Resist the beginnings": The abandonment of a categorical ban would have to be refrained from even in a situation where it would be appropriate, because it would set in motion a development that would amount to completely unacceptable consequences. This line of argument, which is also established in other bioethical discussions, is based on a fourfold error. It wrongly assumes (1.) the stability of moral, social and legal norms independent of social developments; (2.) the validity of moral duties completely detached from the associated consequences and effects; (3.) a normative automatism that is not amenable to ethical reflection and standardisation and (4.) the equation of moral and legal duties.

Of course, the rejection of the dam-breaking argument does not mean that the ethical questions are off the table. At the heart of the matter are four questions:

1.    Is it permissible tokill oneself because ofone's own suffering?

2.    Is it permissible tokill someone else because ofone's own suffering?

3.    Is it permissible tokill another person out ofcompassion for their suffering?

4.    Is it permissible tokill or assist in the suicide of another person because oftheir suffering?

Behind the four variants is the fundamental question: Is the fact of suffering relevant to answering the question of whether killing is permitted or not? In other words, can the act of (self-)killing be conditionally linked to a certain form of suffering? In the sense that if you suffer, then you may kill yourself; if a person causes you certain suffering, then you may kill them; if you sympathise with a person suffering in a certain way, then you may kill them or if a person suffers, then you may kill them or assist in their suicide. Regardless of one's position on assisted suicide, no one - from a reflective point of view - will agree with any of these conditional propositions. A principled permission to kill contradicts our fundamental moral intuitions and our deeply internalised sense of right and wrong. The fact that third parties are not allowed to decide on the existence or non-existence of a person (prohibition of killing) is undoubtedly one of the greatest achievements of our culture. If empathy, solidarity, affect and other mental states are to count with regard to assisted suicide, it is because they are categorically directed against suffering and against the destruction of the person, towards life and not death. And if compassion and solidarity are to have the weight we give them, then they must be related to concrete and singular social circumstances or relationships and cannot be generalised. So if concrete compassion prompts a person to support a concrete, suffering person in their wish to die, it is because of the counterfactual motive of the firm conviction that compassion and solidarity are clearly directed towards making it possible for the other person to live. Only someone who absolutely wants life for themselves and the other person can have good reasons to support and accompany a person with a dying wish.

The formulations appear contradictory when read through a consequentialist lens that follows logic: If you want life for yourself and the other person, you contradict yourself if you respect their wish to die or contribute to their suicide. This is how a traditional morality of prohibition works, which either looks at the effect of preserving biological life or individual survival. Biological life has no intrinsic moral value and continued life is neither an ethical goal nor a theological requirement. Once the moral patina is scraped off traditional readings of the Bible, an ambivalent view of life emerges. The Bible already anticipates the insight from Friedrich Schiller's "Bride of Messina": "Life is not of the highest good". Dietrich Bonhoeffer quotes the sentence from the tragedy and Karl Barth paraphrases it theologically: "Life is not a second God." This even applies to the suicides in the Bible, whose depictions contain no moral judgements. Because the Bible does not regard life as an end in itself, the question arises: if life is not categorically worthy of protection for the sake of (survival), what is its special and unconditional worthiness of protection? It arises from the constitutive relationality of life in its two dimensions (1.) as biographical-social life in relationships and (2.) as transcendent life in the God-human relationship, which the Bible describes and develops as a covenant relationship. From a biblical-theological perspective, it is not about faithfulness towards one's own life and the life of others, but towards the relational life included in and orientated towards God's covenant. The relationship with God is experienced, presented and interpreted in a highly ambivalent way. God gives, promotes, takes and destroys life and all of this happens without any recognisable logic or rule.

The ethical tension between the principles of self-determination, protection of life and care is addressed in the debate on assisted suicide with a number of mitigating measures. The greatest moral relief is provided by the still widespread deficit perspective on the person willing to die. Three narratives contribute significantly to the moral legitimisation of the wish to die: 1. the medical pathologisation of the situation of the person wishing to die, 2. the morally exceptional status of their pitiful and pitiable life and decision-making situation and 3. non-intervention based on the ethics of autonomy as an expression of respect for their self-determination and sovereignty of action. The stereotypes are aimed at a threefold moral exoneration or ethical immunisation: 1. the medical pathologisation declares the ethical questions about assisted suicide and its social organisation to be factually inappropriate or situationally out of place for the suicidal person and their wish to die. 2. the moralisation of compassion skips over the fundamental conflict between the wish to commit suicide and an essentially future-oriented will to live. 3. the privatisation of the wish to commit suicide relieves politics and society of critical questions because the decision is stylised as a free, highly personal decision.

On the theological-ethical side, these ethical mitigation strategies correspond to a disenfranchisement and a double trivialisation of assisted suicide: 1. the theological-ethical disenfranchisement manifests itself in a view that sees the suicidal person as completely determined by their compassionate life circumstances. Their entire existence appears only through the filter of the hopeless life situation. 2) One form of trivialisation reduces the desire to commit suicide to an act of personal self-determination. Johannes Fischer has objected to this: "Is that all there is to say in ethical terms? Doesn't a feeling of distress or grief remain, even in the case of a voluntary suicide, that a person has chosen this path or had no other way out in an emergency? Is it not this tension between the significance that suicide has in society's perception [...] and the significance that we attach to the self-determination of a person capable of judgement that makes suicide so conflictual and results in its ethical problems?" 3) The opposite form of trivialisation explains all states of suffering, lack of perspective, loneliness and despair as states in need of medical treatment, which can be treated, dampened or treated with palliative care. Peter Dabrock comments critically: "Above all, vegetating in undignified nursing homes and hospitals is seen as unbearable, as is the fear of losing control over one's own body, the lack of relationship experiences and the loss of meaning in life. It would be cynical paternalism not to take such fears and anxieties seriously, but to fob them off with consolations or simply by referring to the expansion of palliative measures."

In order to avoid incapacitating and trivialising the person with a wish to die, the ethical and theological-ethical discussion must avoid three short-circuits: 1. the wish to commit suicide must not be legalistically dismissed and ethically neutralised as a self-determined choice of preference by a person who wishes to die. 2. the suicidal person must not be incapacitated as a victim of unreasonable living conditions in terms of autonomy and responsibility ethics. 3. the ethical conflict must not be resolved in terms of resilience strategy by replacing "resistance to the bad circumstances [...] with flexible adaptation to them" through therapeutic and medical support.

3. Ethics and ambivalence

According to a common understanding today, the key moral question is "What should I do?" The question is aimed at the good or right action for a person or group in a particular situation. The question is linked to the normative idea that - as in law - a clear distinction can be made between "good" and "bad" and "right" and "wrong". The desire for clarity clashes with the moral plurality in liberal and individualised societies. Questions of desirable goods and lifestyle belong to the private sphere of the individual and only become publicly relevant (at least according to the liberal self-image) if they violate the applicable regulations and law. However, the privatisation of morality contradicts the claim that moral convictions, i.e. the way of judging the world and acting in or on the world, are shared by a community, which is constituted and stabilised not least through communal consent (worthiness) and moral conditioning. A Pippi Longstocking morality along the lines of "I make the world as I like it" therefore only exists from the principled perspective of liberal law, according to which no moral concepts may be imposed on any person. However, because people are always born and socialised into moral communities, they are never producers, but always products of a social morality of which they must first become aware (= ethical reflection) in order to be able to rebel against it - usually against the greatest resistance from the social community.

There are various ways of dealing with this tension: for example by (1.) relativising the significance of the agreement of moral convictions; (2.) differentiating between essential and non-essential normative convictions (analogous to the theological distinction between confessional [status confessionis] and middle things [adiaphora]); (3.) politicising and juridifying moral norms or (4.) by criticising the normative unambiguity of moral convictions. These strategies aim to operationalise a practice in which judgements have to be made, decisions have to be taken and action has to be taken. The particular challenge with decisions about life and death is that - unlike any other decision - they are not directed towards the future, but exclude it in a non-revisable, definitive sense. Because future possibilities cannot in principle be seen or calculated, decisions that exclude the future are fundamentally precarious (and in a certain sense undecidable). This is why dying wishes in a hopeless illness situation at the end of life have the greatest plausibility, because there is no (medical) prospect of a future for them. This is the ethical divide between a wish to die in a hopeless illness leading to imminent death and a wish to die in a life situation with a fundamentally open future.

The criterion of the future viability of life is not only measured by objective conditions and experience-based, statistically probable future prospects, but depends essentially on the person's attitudes towards their future. These can exist completely independently of and in contrast to objective(ible) forecasts. The findings about biological life do not provide conclusive information about the way in which biographical life itself is experienced. Biological life-in-the-third-person (the subject of the descriptive natural sciences) belongs to the life-in-the-first-person that a person lives (their biography), without being absorbed into it and determining it conclusively. A further distinction must be made between this and life-in-the-second-person, in which the person participates with their social affiliation (family, community, society) and transcendental dimension (religion) and which goes beyond their own biological and biographical life (lasting memory of the deceased person, ideas of life after death). Conflicts in end-of-life decisions usually arise not within one dimension, but between the three dimensions. Unless such confrontations are circumvented by a strict normative hierarchisation of the dimensions (primacy of reverence for biological life, categorical duty to preserve one's own biographical life, unconditional obedience to a transcendent authority), tensions between the dimensions create an unavoidable ambivalence.

"We can speak of ambivalences when people oscillate between polar contradictions of feeling, thinking, willing or social structures that seem temporarily or permanently unsolvable in their search for the meaning of people, social relationships and facts that are important for facets of their identity and, accordingly, for their ability to act. Personal influence, power and domination can be relevant here." Ambivalences characterise everyday experiences, for example "that we can be both close and distant to other people in a dynamic simultaneity, identify ourselves with our own actions [...] and distance ourselves from them [...]". Dynamics of ambivalence also play an important role in the late modern understanding of the autonomous and self-determined person. Contradictory desires, convictions and feelings that cannot be placed in a coherent relationship are no longer always regarded as pathological phenomena of a disintegrating self. Instead, "the ability to tolerate ambivalence [...] is seen as a central ability in connection with development and change processes". "If certain conditions for leading an autonomous life are present in a society, conflicts of ambivalence occur at least much more frequently than in societies where this is not the case. And it even seems to be an unmistakable sign that autonomy is not respected or recognised as a central value in a society if ambivalence conflicts never occur in it. One could therefore say that ambivalence conflicts are an achievement of the 'struggle for autonomy' and initially interpret them as something positive." The relationship to one's own ambivalence itself remains ambivalent. "People can experience themselves as ambivalent, as 'homines ambivalentes' and [...] can in turn be ambivalent towards these experiences of ambivalence."

The question of how experiences and conflicts of ambivalence can be integrated and processed in a person's self-image and biography thus takes centre stage. From an analytical perspective, Holger Baumann distinguishes between three types of autonomous self:

1.    "the unambiguous, stable and anxious self", which suppresses ambivalent conflicts because they are experienced as an attack on its own sovereignty and as a threat to its control over itself and its environment;

2.    "the arbitrary, unbound and foolhardy self", that understands disorder and impermanence as a prerequisite for change and that aims less at self-determination than negatively at not allowing oneself to be determined by others and other things, and

3.    "the understanding, lively and courageous self", which neither fears nor seeks out ambivalent conflicts, but rather allows itself to be challenged by them in a twofold way in terms of whether the self and the world could not also be different.

The third integrative understanding of ambivalence confronts ethics with the dialectic of self-determination and being determined or allowing oneself to be determined. We can determine how we care, but we have no control over what we care about. We don't care about people or things because they are important to us, but people and things are important to us because we care about them. This conditional relationship also applies to our own person: "People are challenged by conflicts of ambivalence in a different - more personal and pressing - way than by conflicts of values. While, when choosing between incompatible valuable options, one could ultimately decide not to choose any of the options, this is not an option with regard to things that are part of one's practical identity. Ambivalence conflicts and value conflicts therefore differ in their character and urgency, and therein lies the special significance of ambivalence conflicts.

Structurally, ambivalence conflicts are the by-products of normative orders and orientations. Morals and ethics are therefore themselves ambivalent, as they produce unambiguity and thus simultaneously generate ambivalence (elsewhere or in other respects). The latter arises precisely where the internalised or self-chosen normative orders and orientations collide with what imposes itself on the person and is both unavailable to them and can subversively undermine their self-image. That which, in addition to all self-determination, also or first and foremost determines the person can neither be ethically caught up with and legitimised nor coherently integrated into the existing normative orders. This is the inescapable ethical risk of pastoral care in the church, which must be taken for the sake of the encounter with the other person. Behind this is a double demoralisation: the renunciation of the moral judgement of the person being accompanied corresponds to the renunciation of the ethical legitimation of the motives and actions of the accompanying person. Dietmar Mieth has concretised the resulting tension with regard to the prohibition of killing and euthanasia: "For the grammar of our morality is not sufficient to determine the use of its 'language' down to the last detail. Our longing for moral clarity cannot be fulfilled without coming into conflict with moral impulses such as compassion and love. This does not change the fact that we must purify these impulses: from self-pity, from the deadly trap of pity and from a love that leaves the other person neither life nor the freedom to make their own decision."

In the relevant ethical discussions, the question of which life a person ends when they want to end their life does not appear explicitly, but it determines the normative judgement of assisted suicide. The formulation sounds unusual because we have become accustomed to viewing life from a scientific (life-in-the-third-person) and/or biographical (life-in-the-first-person) perspective. The Jewish-Christian view of the constitutive relationality of life as a participation in and gift of the one divine life seems correspondingly alien. The being of God is uncreated, the living and eternally living itself (Deut 5:23; Ps 42:3; Deut 32:40 and others). God acts by "giving his creatures a share in his life. Everything that lives lives precisely because it shares in God's fullness of life. Understood in this way, life is the one and same thing that is present in the diversity of living things, God's hidden presence in the life of his creatures". Life comes into view not only as (subjectively) mine, (intersubjectively) yours or (objectively) hers or his life, but first and foremost as a comprehensive relational and living space - as God's biotope: "I am [...] life" (John 14:6). Life-in-the-singular is present in all manifestations and every experience as life-in-plural.

Life in the biblical understanding is an intrinsically ambivalent life that does not aim for intrapersonal coherence but for interpersonal encounter. The most radical idea of ambivalence is offered by the well-known first question/answer of the Heidelberg Catechism: "What is your only comfort in life and in death? That I belong body and soul in life and in death [...] not to myself [...] but to my faithful Saviour Jesus Christ." This formulation, which is strange to bioethical ears, contains a fundamental insight for pastoral care and counselling in the Church: the answer cannot come from the other person (or institution), nor can the person give it to themselves. The answer is given by the authority to which the person feels they belong. The Reformed Catechism was certain that dying requires less a suitable moral than a certainty that cannot be proven, but whose comfort can be experienced.

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Picture of Frank Mathwig

Frank Mathwig

Prof. Dr. theol.
Beauftragter für Theologie und Ethik

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