Aging societies and advances in medicine make it likely that biomedical issues will pose legal challenges. While biolaw can provide some regulation, important life and death decisions have to be taken by patients and physicians. Often, though, patients are no longer capable of making such decisions. In 2009, Germany formalized the private law rules on advance directives. While advance directives, also referred to as living wills, are still widely associated with wishes for euthanasia, they function today goes far beyond that. In terms of criminal law, Germany still outlaws active euthanasia.
In so far it differs from the Netherlands, Belgium, Luxembourg and Switzerland. Given that there has been a noticeable shift of emphasis from human dignity and the right to life to personal autonomy as a function of human dignity and in light of the legalization of euthanasia in several neighboring countries and resulting euthanasia tourism from Germany to Switzerland, there is a risk that the legal situation or at least the general attitude and the perception of the law will also change in Germany.
This can lead to a risk of unwanted active or passive euthanasia, a problem which is highlighted by a case which is currently pending before the European Court of Human Rights against France. Taking into account human rights and human dignity as well as the continued underlying role of cultural-religious values it will be shown that there is now an emerging role for advance directives as tool to enable patients to protect their lives if the law fails to do so.
Table of Contents
A. Introduction
B. The Need for Advance Directives as Protective Legal Tools
C. Advance Directives under German Law
D. Concluding remarks
Objectives and Topics
This work examines the role of advance directives within the German legal framework, particularly in the context of shifting cultural and legal perceptions regarding human dignity, autonomy, and the right to life. It aims to evaluate how such legal instruments can serve as defensive mechanisms against unwanted medical measures in an environment where neighboring countries have increasingly moved toward the legalization of euthanasia.
- Legal status and functionality of advance directives in German private law.
- Analysis of the tension between personal autonomy and the protection of the right to life.
- Comparative perspective on euthanasia trends in Europe and their impact on German legal culture.
- The role of human dignity as a foundational principle in biolegal discourse.
- The protective function of advance directives for patients against potential legal and medical abuses.
Excerpt from the Book
A. Introduction
The decision what is to happen in case a medical issue renders a person unable to make decisions with regard to medical treatments has to be made in advance - at a time when that person has little or no information about the medical issue in question. Such advance directives or living wills aim at protecting the will of the patient as it has been formulated at a time when the patient was still capable of making such important decisions. The motivation of such a decision, if made in a state of legal competence, is not questioned. Often advance directives are aimed at preventing prolonged exposure to ‘machine medicine’, i.e. technological measures which continue human life but which are seen as unnatural by some patients. It is often the fear of the unknown and of things which might happen to oneself and which would be outside one’s control. What is desired by many patients is essentially passive euthanasia, i.e. ending the use of lifesaving measures. Others might seek more drastic measures and resort to active euthanasia or suicide. Under Germany’s Criminal Code, the Strafgesetzbuch (StGB), assisting in a suicide is not a crime because inciting or supporting an act of an other person requires that act to be criminal in nature, which is not the case with regard to suicide.
Summary of Chapters
A. Introduction: This chapter establishes the necessity of advance directives as tools for patients to preserve their autonomy when facing medical incapacity, while distinguishing between passive euthanasia and legally prohibited active euthanasia in Germany.
B. The Need for Advance Directives as Protective Legal Tools: This section explores how the legalization of euthanasia in neighboring countries and evolving interpretations of human dignity necessitate the use of advance directives as defensive legal instruments for individuals.
C. Advance Directives under German Law: This chapter details the legislative changes made to the German Civil Code in 2009, specifically sections 1901a and 1901b, which formalize the legal status and implementation of living wills and patient representation.
D. Concluding remarks: This section synthesizes the argument that advance directives are vital tools in protecting personal life and dignity, predicting that their importance will continue to grow as medical technology advances and legal challenges persist.
Keywords
advance directive, living will, Germany, European Convention on Human Rights, Netherlands, Belgium, France, physician, euthanasia, human dignity, patient autonomy, medical law, right to life, passive euthanasia, bioethics.
Frequently Asked Questions
What is the core focus of this publication?
The work focuses on the legal framework and practical application of advance directives (living wills) in Germany, evaluating their role in ensuring patient autonomy and protecting the right to life.
Which key thematic areas are addressed?
Key areas include the German Civil Code's regulations on advance directives, the comparative analysis of euthanasia laws in Europe, the interpretation of human dignity, and the protection of patients against unwanted medical intervention.
What is the primary goal of the author?
The primary goal is to show that in a shifting legal landscape where utilitarian views on life may gain ground, advance directives serve as a necessary protective tool for patients to preserve their dignity and life choices.
What scientific methodology is utilized?
The work employs a legal-analytical approach, reviewing statutory provisions (German Civil Code, Criminal Code), judicial decisions, and international human rights law, particularly the European Convention on Human Rights.
What topics are discussed in the main body?
The main body examines the specific legal provisions for living wills, the impact of international "suicide tourism," the role of physician-patient communication, and the constitutional protection of life under the German Basic Law.
What are the characterizing keywords of this study?
The work is characterized by terms such as advance directive, human dignity, patient autonomy, euthanasia, and medical law.
How does the German Civil Code currently handle living wills?
Since 2009, the Civil Code (specifically section 1901a) provides an express legal framework that requires custodians or representatives to honor the patient's previously determined wishes regarding medical treatment.
What is the author's view on the shift from dignity to autonomy?
The author expresses concern that placing focus solely on autonomy, as the guiding principle of biolaw, may inadvertently lead to a disregard for the absolute nature of human life and dignity in legal discourse.
- Arbeit zitieren
- Stefan Kirchner (Autor:in), 2015, Advance Directives under Germany’s Civil Code in a Comparative Context, München, GRIN Verlag, https://www.grin.com/document/311799
