CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ ABORTION AND EUTHANASIA IN THE DRAFT HUMAN RIGHTS … euthanasia – it describes the situation, where the intent of the other person (physician) is also to kill the patient, but the act is performed by the patient himself. In case of therapeutical abstention, medical ethics further differentiates between the regular treatment (standard therapeutical means) and extraordinary treatment: the regular (standard) therapeutical means should be always provided, while, on the other hand, it is regarded as permissible to abstain from extraordinary treatment. Thus, permissible therapeutic abstention would describe, for example, situations in which the terminally ill patient refuses operation which would be without any real medical purpose and would represent only an excessive burden for the patient. 42 Of course, not everyone is convinced of the appropriateness of this theoretical classification of various permissible and impermissible procedures. Be it as it may, the practice provides more than enough tragic cases proving that euthanasia and assisted suicide belongs, together with abortion, among the most controversial issues in the public debate and human rights law and that the legal approach to this issue should adequately reflect its complex character. 43 Further, the question is whether a paragraph legitimizing assisted suicide and euthanasia can be placed in a text relating to the right to life, since it may be seen as “inferring a right to die from the right to life, i. e. diametrically opposite right”. 44 It can be referred to the practice of the European Court of Human Rights, which, in its above cited decision in Pretty v. The United Kingdom, observed that it “is not persuaded that ‚the right to life‘ guaranteed in Article 2 [of the European Convention of Human Rights] can be interpreted as involving a negative aspect” and that “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” and concluded that “no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention”. 45 All in all, it seems that the HRC did not pay adequate attention to all of the aspects of this topic and suggests to endorse the controversial practice of only very few places in the world where assisted suicide and euthanasia are legal, despite the attitude of the vast majority of the international community. VII. Conclusion It is suggested that the HRC in its draft General Comment to Article 36 did not address the issues of abortion and euthanasia adequately to the importance of the right to life as “the most basic human right of all” and to the complexity and controversial character of these 42 See e.g., MUNZAROVÁ, Marta. Euthanasia or Paliative Care (in Czech), Prague: Grada Publishing, 2005, pp. 48 a 49; ČERNÝ, David. Euthanasia: In Defence of Traditional Distinctions (in Czech); in: ČERNÝ, David, DOLEŽAL, Adam (eds.), Death and Dying: Ethical, Legal and Medical Questions at the End of Life (in Czech), Prague: Institute of State and Law of the Czech Academy of Sciences, 2013, p. 30 et seq. 43 See, e.g., ECtHR, Grand Chamber, Lambert and Others v. France, Judgment, 5 June 2015; Dominic Wilkinson, Julian Savulescu, Hard lessons: Learning from the Charlie Gard case, 24 July 2017, available at http://blog. practicalethics.ox.ac.uk/2017/07/hard-lessons-learning-from-the-charlie-gard-case/ (visited on 9 June 2018). 44 ECLJ’s Contribution to the Drafting of the General Comment No. 36, op. cit. sub 7, p. 17. 45 ECtHR, Pretty v. The United Kingdom, op. cit. sub 9, paras. 39 and 40.

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