The present legal position, like the present Dutch practices, is ambiguous. From the purely legal point of view, both euthanasia and assisted suicide are illegal. However, even the law recognizes euthanasia and assisted suicide as lesser crimes than murder, which is not the case in most other countries or in international human rights law. The sentences which apply to euthanasia and assisted suicide in the Netherlands are markedly lower than those which apply to murder, for the simple reason that Dutch law does not consider these acts to be murder. Adherents of the argument that even partially permitting euthanasia leads down a "slippery slope" to uncontrollable abuses might well locate here, in the Dutch criminal code itself, the beginning of that slippery slope.
Article 293 of the Dutch penal code states, "He who, on the explicit and serious desire of another person, deprives him of his life, will be punished with an imprisonment of up to 12 years or a fine in the 5th category (100,000 guilders)." Article 294 states, "He who deliberately incites another person to commit suicide, renders assistance in doing so or provides him with the means to do so, will, in case suicide follows, be punished with an imprisonment of up to 3 years or a fine in the 4th category (10,000 guilders)."
In spite of these formal provisions in the Dutch criminal code, Dutch courts have allowed the actual legal position to stray very widely from any criminalization of either euthanasia or assisted suicide. Following the landmark case in 1973, and as a result of the formal establishment of state and regional committees on euthanasia in the 1980s, the actual practice is currently as follows. Doctors are allowed to administer euthanasia after certain criteria have been fulfilled. The patient must have made a voluntary, well-considered and lasting request; he must have been faced with a condition of unremitting and unbearable suffering; a second physician must have been consulted; and termination of life must be carried out in a medically appropriate fashion.
The doctor's actions are submitted to a regional review committee which ensures that due care was observed. The opinion of the committee is then submitted to the Public Prosecution Service, which usually defers to it and forebears to bring a prosecution. The committees are composed of doctors, ethical experts and lawyers.
Although prosecutions of doctors are rare, the possibility of prosecution always remains under the present law. Consequently, not all doctors report cases of euthanasia, since they consider the procedure cumbersome and dangerous for them. In 1990, only 18% of cases of euthanasia and assisted suicide were reported to the authorities in the required way. (These figures were obtained from a comprehensive survey conducted on condition of anonymity, of which more lately.) Although the figure rose to 41% by 1995, this still means that 59% of cases go unreported and therefore unregulated under the present arrangements.
The reasons for this non-reporting are noteworthy. In 1995, the anonymous inquest found that, in 55% of the cases in which euthanasia was not reported, doctors did so in order to spare the family the unpleasantness of a judicial investigation. In 36% of cases, the stated reason was fear of judicial procedure. And some 30% of cases went unreported because the doctor had not fulfilled the criteria. (These categories overlap.)
One expert has even suggested that euthanasia goes unreported in six out of ten cases.
The failure to report euthanasia gives grist to the mill of those who argue in favour of the new law, whose provisions are examined below. They claim that it is better to bring this morally, highly sensitive and difficult matter under the control of the law, rather than allowing the present legal ambiguity to continue. Opponents, however, may legitimately ask why the new law will succeed in bringing the practice under control when a culture of illegality on this question has been tolerated in the Netherlands for so long.
The danger of continued abuses, even under the new law, is real. Campaigners for euthanasia, such as the Dutch Union for Voluntary Euthanasia, as well as those who campaign for assisted suicide, such as the voluntary organization De Einder (The Horizon), both say that the new law is an unwelcome retrograde step. De Einder's counselors advise people who want to end their lives, and they sometimes take a fee for their services. The Director of The Horizon, Mrs. Adriana Brolsma, is unhappy with the new law. "In the past, assisted suicide was illegal but tolerated. The new law will set up a bureaucratic procedure which will just keep people waiting. Under the new law, the doctor will decide, not the individual. Only the patient can decide. We like to talk about self-determination. Mrs. Brolsma is opposed to the idea that the authorities can prevent people from committing suicide.
The Dutch Union for Voluntary Euthanasia believes in the right of the individual to decide when to end his own life and regards the intrusions of the new law as unwelcome, especially because it restricts the right to euthanasia to those who are in unbearable pain. De Einde, a voluntary organization run mainly by militant humanists, which helps people to commit suicide, similarly believes that it is wrong for the state and law to tell an individual when and how he may take his own life. These argument are powerful (they are discussed again below) and they have powerful appeal within the Netherlands: will a new law be sufficient to counteract them in a country whose whole culture has for decades and centuries been built upon radical individualism?
