The Extension of Belgium’s Euthanasia Law to Include Competent Minors
Following considerable debate, the practice of euthanasia was legalized in Belgium in 2002, thereby making Belgium one of the few places in the world where this practice is legal. In 2014 the law was amended for the first time. The 2014 amendment makes euthanasia legally possible for all minors who repeatedly and voluntarily request euthanasia and who are judged to possess “capacity of discernment” (regardless of their biological age), as well as fulfil a number of other criteria of due care. This extension of the 2002 euthanasia law generated a lot of national and international debate and has been applauded by many and heavily criticized by others. This evolution is clearly of interest to end-of-life debates in the entire world. This paper will therefore describe how this amendment came to get passed using official documents from Belgium's Senate and Chamber of Representatives where this amendment was discussed and subsequently passed. Next, some of the most commonly given arguments in favour of the law are identified, as well as the arguments most often voiced against the amendment. All these arguments will be expanded upon and it will be examined whether they hold up to ethical scrutiny. Analysing the official documents and identifying the most commonly voiced arguments gives valuable insight into how Belgium came to amend its euthanasia law and why it did so in 2014. It also becomes clear that although the current amendment is often seen as far-reaching, more radical ideas were proposed during the drafting of the law. Also, in analysing those arguments in favour of the amendment and those against, it is clear that the validity of some of these is questionable.
KeywordsEuthanasia Minors Belgium Ethical reflections
Following considerable debate, the practice of euthanasia was legalized in Belgium in 2002, thereby making Belgium one of the few places in the world where this practice is legal. The law that was passed in 2002 contained a number of caveats regarding the due care that has to be taken before a physician can perform euthanasia (Kidd 2002).1 One of the important criteria was that euthanasia could only apply to adult patients (over the age of eighteen) or to a rare category of so-called “emancipated minors.”2 However, in early 2014, this law was amended and the age criterion was abandoned (Act amending the Act of 28 May 2002 on euthanasia, sanctioning euthanasia for minors). The new amendment makes euthanasia legally possible for all minors who repeatedly and voluntarily request euthanasia and who are judged to possess “capacity of discernment” (regardless of their biological age) as well as fulfil all other criteria. This extension of the 2002 Euthanasia Act, which has generated much national and international debate, has been applauded by many and heavily criticized by others.
It goes without saying that this Belgian development in the law is of interest to the end-of-life debates in the rest of the world. What is mostly debated is the result (i.e., the new amendment), although the process of passing the amendment is also important. This paper will therefore analyse some key aspects of the legislative process in passing this act, using documents from the Belgian Senate and Chamber of Representatives, where the amendment was debated.3
After describing the amendment and its history, this paper provides a normative analysis of some of the issues that were mentioned in the Belgian debate on the law and list the reasons given by those in favour of the law, although the justifications given by those against will also be expanded on.
History of the Amendment
Although the amendment extending the right to euthanasia to competent minors was passed twelve years after the initial euthanasia law, this has always been a topic of some political and ethical debate in Belgium. When the initial euthanasia law was discussed back in 2001, there were already many politicians and experts arguing in favour of incorporating competent minors into the law. This became evident from various amendments that were proposed (e.g., Belgian Senate 2000), but also from the hearings that were held in 2001 in which various experts favoured legalizing euthanasia for minors as well as for adults (Belgian Senate 2001). However, in the law that was eventually passed in 2002, a political compromise was evident in that euthanasia could only be legally performed on adult patients (eighteen years or older) or on “emancipated minors.”
This did not silence the debate, however, and euthanasia for minors continued to be a topic of concern (Mortier 2003). Since 2002, many legislative proposals were received, seeking to amend the law to include competent minors. Roughly speaking, there were three kinds of proposals. First, there were proposals to maintain a biological age criterion, but to change it from eighteen years to, for example, fifteen (e.g., Belgian Senate 2010a). Second, proposals were brought forward to abolish the age criterion and to allow euthanasia for all patients who are judged to have “capacity of discernment” (and meet all the other legal criteria) (e.g., Belgian Senate 2004, 2010b). The third set of proposals allowed euthanasia for all patients with a “capacity of discernment” (as in the second type of proposal), but also included that option for minors without capacity of discernment, where euthanasia could be requested by the parents or legal representatives (e.g., Belgian Senate 2006, 2012). Naturally, this third type of legislative proposals was the most controversial, but, given that most people were ignorant about the fact that such proposals were ever officially submitted, they were never the topic of public debate.
Before 2013, all these proposals were rejected. However, in that year, after receiving several new proposals for amendment, the Senate agreed to hold a number of hearings with Belgian experts to hear their opinions on possible amendments to the euthanasia law (Belgian Senate 2013a). During those hearings, many (but not all) experts declared themselves in favour of extending the euthanasia law to include competent minors. Following those expert hearings, four senators submitted a legislative proposal which was heavily debated and amended in the Senate (Belgian Senate 2013b). After those debates, a majority of senators voted in favour of the proposed amendment, which was then handed to the Chamber of Representatives. The law was finally passed with eighty-six votes in favour and forty-four against.
The amendment provides that euthanasia is legalized for minors who request euthanasia and are judged to display a capacity of discernment (“oordeelsbekwaamheid” in Dutch) when they are in a “medically futile condition of constant and unbearable physical suffering that cannot be alleviated and that will, within a short period of time, result in death, and results from a serious and incurable disorder caused by illness or accident” (Act amending the Act of 28 May 2002 on euthanasia, sanctioning euthanasia for minors 2014). Whilst this formulation is very similar to that for adult patients and emancipated minors, there are significant differences. First, the amendment clearly states that for minors, only physical suffering can be an indication for euthanasia, while for adults and emancipated minors both physical and/or psychological suffering can be considered a proper indication.
The new amendment further provides that for minors death has to result within a short period of time, which is a requirement that is not included for adults and emancipated minors. The scope of the euthanasia law is thus more restricted for minors. For example, a nineteen-year-old patient suffering from early-stage amyotrophic lateral sclerosis who has a good life-expectancy is entitled to receive euthanasia (provided all other criteria are met), whereas for a (non-emancipated) sixteen-year-old, this would be legally impossible.
It is also important to note that euthanasia is only legal for minors who themselves make multiple and sustained requests that are both voluntary and free of pressure. The law was therefore not extended to include very small children or neonates as they cannot request euthanasia themselves and even if they could, those requests would not qualify as voluntary and/or free from pressure. The amendment is thus significantly different from the Dutch Groningen Protocol which describes situations in which the lives of neonates could be, justifiably, ended (Verhagen and Sauer 2005). The new amendment also provides that euthanasia can only be performed on minors on the basis of a current request. In adults and emancipated minors, euthanasia may be legally performed on the basis of an advance directive that can be used if the patient ends up in a state of permanent unconsciousness (although cases of euthanasia based on an advance directive are rare in Belgium). This is, however, not an option for non-emancipated minors who have to be conscious until the very moment when euthanasia is performed.
The original euthanasia law stated that in all cases of euthanasia (i.e., both adults and emancipated minors), a second and independent physician has to be consulted who examines the patients and checks whether the legal criteria for euthanasia are indeed met. For minors, the new amendment provides that they are additionally seen by a paediatric psychiatrist or psychologist who examines both the relevant medical files and the patients to determine whether (or confirm that) they are indeed competent. The treating physician has to report the result of this consultation to the patients themselves, as well as to their legal representatives (who are almost always the parents).
Finally, the new amendment provides that the minors’ legal representatives should also consent to the euthanasia, and this consent should be written down and stored in the medical file together with the patients’ written consent.
As with all euthanasia cases, the euthanasia has to be officially reported to the Federal Control and Evaluation Commission, which judges whether the physician performing the euthanasia did, in fact, act correctly. The commission can subsequently make further inquiries (should it deem this necessary) and can transfer cases to the judicial authorities if it judges that euthanasia was not performed lawfully.
The amendment to the euthanasia law was passed in the Chamber of Representatives with a substantial majority amidst strong opposition in both the Senate and Chamber of Representatives, as well as the rest of the world. Since the Christian-Democratic political party that formed part of Belgium’s multi-party government coalition was against this amendment, the other members of the government coalition had to look for support amongst members of the opposition in order to pass this bill.
Besides this opposition, there was also religious resistance. In fact, the then-head of the Belgian Catholic Church, Archbishop André Leonard, spoke out publicly against the amendment of the euthanasia law, and several churches held mass in protest before the amendment was voted on (Traynor 2014).
The medical world was equally divided over the issue. Earlier research from Belgium had indicated that a large number of physicians would support an extension of the euthanasia law to include minors (Pousset et al. 2011b), and when this amendment was discussed, there was indeed support. An open letter from various paediatricians pleading in favour of the extension of the euthanasia law was published in the Belgian media (van Berlaer et al. 2013). At the same time, however, there was an attempt to stop the amendment: a petition against the law, signed by over 160 paediatricians, was submitted to the head of Belgium’s Chamber of Representatives.
This amendment, for many a sure sign that Belgium had started down the slippery slope (e.g., Andrews 2014; Smith 2014), has met with considerable international criticism. When the first draft of the amendment was approved by the Senate, but not yet by the Chamber of Representatives, various members of the Council of Europe’s Parliamentary Assembly signed a written declaration condemning the potential extension of the euthanasia law (Parliamentary Assembly 2014). However, not all comments on the law were negative, and some international bioethics blogs defended the Belgian amendment (e.g., Hope 2014).
Arguments in Favour of Extending the Application of the Euthanasia Law
Whereas the previous section describes the amendments’ history, content, and reception, this section sets out some of the normative issues by examining the elements that were presented by the proponents to justify the amendment, as well as some of the criticism that was levelled by Belgian opponents. During the debate, not all arguments in favour or against the proposed amendments were normative; that is, not all opposed the idea of euthanasia for competent minors on moral grounds. Rather, some of the criticism focused on procedural elements. For example, many opponents were critical of the procedure that was followed for passing this amendment and wanted to have more days to debate the issue and to hear more national and international experts. Proponents of the law claimed that these requests were mere manoeuvres to defer the law until after the next elections, after which political support for the amendment would be uncertain (Belgian Chamber of Representatives 2014). In this section, however, the main focus lies on the more normative arguments.
Argument to Avoid Discrimination
One of the most common arguments in favour of extending the euthanasia law is that this would dispose of a discrimination in the original euthanasia law (Belgian Senate 2010a). Previously, euthanasia could be obtained by emancipated minors but not by non-emancipated, but otherwise competent, minors. Those in favour of extending the application of the euthanasia law deemed this unfair, because, according to them, not only might these competent non-emancipated minors be psychologically mature to an equal degree, their suffering could be seen as just as real and acute.
An important counterargument might be that even if this discrimination is real, the current amendment at best limits, rather than eradicates, the discrimination. The law still maintains an important difference between adults and emancipated minors on the one hand and non-emancipated minors on the other. Many of those differences have already been discussed above. While adults and emancipated minors can legally receive euthanasia for psychological suffering, even when they are not close to death, this is not possible for non-emancipated minors. In the case of emancipated minors, an explicit consent from the legal representatives is not required whereas this is required for non-emancipated minors. Non-emancipated minors also have to be examined by an independent psychologist or paediatric psychiatrist, while this is not required for emancipated minors. Despite the abolition of the age criterion in the new amendment, it still matters, therefore, whether patients are over eighteen or whether they are emancipated or not. Whereas, before, it was biological age that determined whether one could legally request euthanasia or not, age now determines the indications for receiving euthanasia and the procedure to be followed. Thus, it could be argued that the law after the amendment still attaches relevance to biological age and could perhaps even be claimed to maintain an age criterion.
To be fair, the initial legislative proposal did suggest treating competent minors in exactly the same way as adults or emancipated minors, thereby achieving the intended goal of avoiding discrimination (Belgian Senate 2010a). However, during the debates on the amendment in the Belgian Senate and Chamber of representatives, it became clear that a voting majority could only be obtained if euthanasia for competent minors was limited to patients who are suffering physically and are imminently dying (Belgian Senate 2013c). The reasons why euthanasia for minors was limited was that many members of Senate and the Chamber of Representatives were fearful that allowing competent minors to request euthanasia for psychological suffering would open the floodgates to requests from, for example, love-sick minors or “confused teenagers” (Belgian Senate 2013c, 66) who feel heartbroken but will recover from this in time. Similarly, it was believed that competent minors who are not imminently dying, and thus have a longer life ahead of them, could still hope for a cure or were more likely to adjust to their situation and find happiness in life again. However, as the law states that euthanasia can only be used when there is a medically futile condition that causes unbearable suffering that cannot be alleviated, this would seem to exclude love-sick teenagers, as they are clearly not in a medically futile condition. So one might question whether allowing euthanasia for minors for psychological suffering would indeed lead to the unwanted consequences it is sometimes claimed it would.
Furthermore, while doing away with discrimination is clearly morally superior in itself, limiting discrimination can also be a noble pursuit if complete exclusion cannot be achieved due to practical reasons. It is at least better than allowing discrimination to persist.
The other major argument postulated by proponents in the debates is that of legal clarity. It was argued that before the amendment, there was a significant lack of clarity for physicians treating terminally ill children regarding what would be legally acceptable and which actions would constitute unlawful behaviour (Belgian Senate 2013a). Moreover, the claim was made that this could lead to physicians being overly cautious (for example, with pain medication) out of fear of possible prosecution (Belgian Senate 2013a, 14–15). Ultimately, some minors would then be at risk of receiving suboptimal care. Amending the application of the euthanasia law could resolve this lack of legal clarity and lead to better care, not least for minors who are not requesting euthanasia.
However, it is unclear whether this argument can hold up to scrutiny. For one, it was never properly proven that physicians did indeed experience this legal uncertainty, nor was it ascertained that this could lead to inadequate patient care. Moreover, even if there is legal uncertainty, this does not automatically imply that the law is indeed unclear as, for example, uncertainty could also be caused by the physicians’ lack of understanding of the legal framework. Furthermore, if there is a lack of legal clarity, legalizing euthanasia for competent minors might not be the answer either. Another way of creating clarity could be through informing or educating (paediatric) physicians. Finally, it has been claimed that if legal clarity is pursued, then forbidding euthanasia for competent minors is the best way to achieve this. There can be no discussion about biological age as there can be about whether or not a minor has a capacity of discernment. In a way, the current amendment adds ambiguity, if nothing else.
Other analysts have argued that legalizing euthanasia for competent minors would perhaps not solve legal uncertainty, but would, in fact, formalize a procedure that has always occurred in practice in Belgium (as well as in other countries) (Belgian Senate 2013a). Legalizing the practice, the argument goes, would at least make it visible and provide scope to have it done in a proper and effective way. Available research does, indeed, suggest that euthanasia in adult patients also occurs in countries where the practice is illegal (van der Heide et al. 2003; Seale 2009). However, as regards the incidence of euthanasia for children and minors, one Belgian study shows that in 2007–2008, no cases of euthanasia for children were reported in Belgium, although there were some life-ending cases without explicit request (Pousset et al. 2010).4 Continuous sedation until death, however, has occurred in children, significantly more so than in adults (Pousset et al. 2011b). This might suggest that in the case of a minor, some physicians would elect continuous sedation over euthanasia because sedation is legal. In this respect, it is striking that some physicians who use continuous sedation in minors report having the intention, or co-intention, of shortening the patients’ lives (Pousset et al. 2011b).
Of course, the mere fact that something occurs is not, in itself, an argument for legalization. If a practice is ethically unjustified, then its illegal occurrence should be condemned. If, however, a certain practice can be ethically justified, this might constitute a prima facie reason for legalizing this practice. However, in the latter case, the actual occurrence of the practice is to be seen as irrelevant, as what underlies the practice then is not its mere occurrence but sound ethical reasoning. In short, this paper argues that the avoidance of legal ambiguity is a flawed argument to support sanctioning euthanasia for competent minors.
Argument of Consistency
A third argument that was brought forward in favour of extending the application of the Belgian euthanasia law was that this extension would increase (legal and practical) consistency in medical practice and decision-making. Proponents of the law’s amendment often refer to the Belgian Patients’ Rights Act that was passed simultaneously with the Euthanasia Law in 2002. Among other things, this law provides that for every medical decision, minors should be involved according to their “maturity and age” (2002 Patients’ Rights Act). The more psychologically mature a minor is, the more they should be involved. In practical terms, this means that a mature seventeen-year-old can make (or be highly involved in making) far-reaching medical decisions, even decisions that will clearly affect the timing of death. Mature minors can, for example, refuse another round of chemotherapy or reject organ transplants, even when the inevitable consequence of their decision is death. Proponents of an extended euthanasia law question why, whilst minors can be deemed competent to refuse chemotherapy, they cannot be considered competent to request euthanasia (Singer 2003). This is indeed strange, especially bearing in mind that dying from, for example, a lack of food and fluids is often very painful and can, according to some, constitute an undignified way to die (Pool 2004). Of course, opting for euthanasia is difficult, but unfortunately, many competent minors are forced to make several far-reaching decisions during the course of their illness. Prohibiting euthanasia does not shield minors from making difficult decisions. Therefore, proponents of the amendment claim that allowing euthanasia for non-emancipated minors would bring the law more into line with the Belgian Patients’ Rights Act and broaden a minor’s options at the end of their lives (Belgian Senate 2013a).
Of course, the difference between rejecting a certain treatment and receiving active assistance to die has been the subject of much debate (e.g., Rachels 1975; Otlowski 2000; Daly 2015). The right to reject treatment is usually framed as a negative right that is grounded, among other things, in the right to bodily integrity. Treating a competent patient against their will is tantamount to an unwanted bodily invasion and could even be considered battery. Euthanasia, however, is founded on positive rights, such as the right to autonomy and control over one’s own life. Positive rights are sometimes said to have less moral weight than negative ones. Therefore, some analysts, such as for example Frances Kamm (1998), believe “it seems clear that the right not to be invaded with treatment against one’s will is stronger than the right to be given a lethal injection or pills” (Kamm 1998, 40). This could be considered a justification why a minor’s refusal to be treated cannot be ignored while, at the same time, a request to be assisted in dying could be. Therefore, merely pointing to the legal difference between minors refusing treatment and minors requesting euthanasia should not, in itself, be seen as proof of an inconsistency.
Moreover, opponents of the euthanasia law’s amendment have pointed out that the Belgian legal system has different strict biological age criteria in place for, for example, buying alcohol, having consensual sex, driving, and so on. It is thus not unusual, or indeed odd, for the law to apply one age criterion to one decision and a different age criterion to another. Opponents of the amendment, therefore, claim that what is actually inconsistent is to allow minors euthanasia, as it would then be legal for a fifteen-year-old to request euthanasia, but not to buy alcohol or drive a car (Belgian Senate 2013c, 94).
This line of reasoning has been refuted with the argument that age limits for buying alcohol or driving a car are in place for the minors’ own, and others’, safety; we safeguard minors in their best interests with the future in mind. However, for euthanasia, this is different as, proponents argue, it is not staying alive, but having a peaceful death that is in their best interests. Moreover, since these minors are terminally ill and will certainly pass away in a limited time, there will be no “future” to safeguard them for.
Arguments Against the Amendment
As mentioned earlier, support for the Belgian amendment was far from unanimous, and debates in both the Belgian Senate and the Chamber of Representatives were heated. In this section, the most commonly voiced arguments against amending the law are listed.
Role of the Legal Representatives
Opponents of the euthanasia law took issue with the role of the legal representatives in the amendment to the euthanasia law, which they perceived as being ambiguous.
During the discussions, several options were debated. Some proposed that consent from legal representatives or parents should not be a condition sine qua non for minors to receive euthanasia (Belgian Senate 2013a, 43–44), while others believed explicit consent from the parents or legal representative was always needed.
In the initial legislative proposal, it was stated that legal representatives or parents must give their consent and what’s more, this should be formally documented. This requirement of consent was maintained in the law that was eventually passed. However, opponents of the amendment argued that there are still many uncertainties. It is, for example, not clear in the law what should happen when parents disagree. Is the consent of both parents required? What happens when the parents are divorced? Proponents of the law responded that they believe such situations will very rarely occur and that no physician would perform euthanasia in those cases (Belgian Chamber of Representatives 2014). Nevertheless, as it is not made explicit in the amendment, this remains a legal possibility.
Also, the fact that parents still have to consent was deemed inconsistent with the proponents’ claims that some minors are fully competent to request euthanasia. Does the fact that parental consent is essential not imply a sort of guardianship, and that we, therefore, deem minors less competent than adults? Proponents of the amendment argued that minors can have a capacity of discernment, but the Belgian legal system provides that non-emancipated minors cannot perform legal actions and parental consent is thus a legal requirement. It also limits the scope of the amendment as minors can thus not request and receive euthanasia on their own. For some, the necessity of parental consent thus supports the amendment.
Assessment of Competence
Minors can legally request to receive euthanasia if they have a “capacity of discernment” (and fulfil all other criteria of due care). Whether or not that is true has to be assessed by the treating physician and an independent psychologist or paediatric psychiatrist. However, the law does not define “capacity of discernment”—or how it should be assessed, for that matter. This means that it is possible that different physicians interpret “capacity of discernment” very differently, which might create a certain arbitrariness where whether one is deemed competent or not depends on the treating physician, psychologist or paediatric psychiatrist. Furthermore, it is unclear how it is possible to challenge such a judgement. Both the physician performing euthanasia and the psychologist or paediatric psychiatrist examining the minor have to file a report, but there is, of course, no way of judging, in retrospect, whether their judgement was correct. For opponents of the law, this amounts to taking the physicians or psychiatrists on their word, something which, they believe, is unacceptable in a matter so serious as this.
Note that these concerns skirt the issue of whether or not minors can ever be competent to request euthanasia, which is a topic of considerable debate (e.g., Palmer and Gillespie 2014; Siegel, Sisti, and Caplan 2014). The point is that, even if one agrees, it may remain problematic that the law provides no indication whatsoever as to how “capacity of discernment” is to be understood or assessed in practice.
Some critics have claimed that the new amendment is flawed on account of its high degree of ambiguity. This criticism is related to some of the other comments already mentioned above.
For example, although the law states that minors cannot receive euthanasia for psychological suffering, it is unclear how to distinguish psychological from physical suffering. There is increasing evidence that a strict separation of the two types of suffering is unviable and that even physical experiences such as pain contain psychological elements (Mee et al. 2006). This is an example of how the law introduces a distinction which it does not clarify any further, leaving this concept wide open to individual interpretation.
Similarly, the new amendment requires non-emancipated minors to be close to death before they can receive euthanasia. However, it remains unexplained what exactly constitutes “close to death,” so physicians have to use their own judgement on a case-by-case basis according to their own criteria.
Necessity of a Law
Critics of the euthanasia law have claimed that the law is redundant. Some experts in Belgium believe children rarely make requests to die as they have a very strong will to live (Belgian Senate 2013a). Indeed, available research found that in Belgium, between June 2007 and November 2008 (when euthanasia for minors was still illegal), there were no reported requests from minors (Pousset et al. 2010). Furthermore, although euthanasia for minors has been legal in the Netherlands since 2002, it has been rarely used there, although exact numbers are difficult to obtain as most studies do not isolate minors as a separate age group (Onwuteaka-Philipsen et al. 2012). Thus, it could be claimed that, while only little can be gained from amending the euthanasia law to include minors (as it will rarely be used), the risks of such an extension are significant. In this scenario, critics claim it is best to err on the side of caution and not expand the existing law.
Another counterargument is that it is also a matter of making laws as just and justified as possible. As there is no justification, according to proponents, to deny psychologically competent minors the right to euthanasia, the law should be adjusted, regardless of how often it will be used. Official reports indicate that, for example, euthanasia is rarely performed by means of advance directive (2 per cent of all euthanasia cases in 2012–2013) and is equally rarely performed on patients between the ages of twenty and twenty-nine (less than 1 per cent of all euthanasia cases in 2012–2013) (Federal Control and Evaluation Commission 2014). Nevertheless, the low numbers on their own are no justification to eliminate the possibility of euthanasia by advance directive or to set the age limit for euthanasia at twenty-nine.
Other critics claim that, even if euthanasia for children were to remain illegal, it might still be possible for physicians to help patients in exceptional cases. In Belgium, as in many other countries, physicians can invoke the argument of “necessity” when they have two conflicting duties they cannot fulfil at the same time. Cases of extreme suffering in minors might perhaps be cases where necessity could be invoked.
Of course, in these scenarios, physicians would have to be willing to stand trial before a court to invoke necessity without there being any guarantee for success. Legal trials in Belgium notoriously drag on for many years during which the physicians are left in legal uncertainty. Moreover, even if the argument of necessity is accepted and the physician is cleared, they might still be stigmatized. Many physicians will thus probably be hesitant to take such great risks for minors seeking assistance to end their own lives. Moreover, for a patient it would then largely become a matter of luck whether they will find a physician willing to listen and take this legal gamble. It is therefore highly questionable whether this constitutes a particularly just situation.
The above discussion demonstrates that, despite what many outside observers might think, the amendment that was passed is, in many ways, a toned-down version of the initial proposal and, indeed, of many possible alternatives discussed. As pointed out, various politicians submitted official legislative proposals to allow legal representatives to request euthanasia for minors who were not deemed to have a “capacity of discernment.” Had an amendment been passed with word to that effect, it would have constituted a radical departure from the existing euthanasia law, as the law defines euthanasia as “intentionally terminating life by someone other than the person concerned, at the latter’s request” (Kidd 2002, 182, emphasis added), Belgium’s euthanasia law thus states that euthanasia necessarily involves a patient’s request. This would clearly not be so in cases where it is the legal representative who requests euthanasia.
Furthermore, the legislative proposal that started the debates extended euthanasia to minors for all the same indications for which euthanasia was already in place for adults. It was only during the process of amending the initial proposal that euthanasia for minors was limited to patients with a short life expectancy who experience physical suffering.
With regard to the arguments in favour, the 2014 amendment does not provide extra legal security. Additionally, the claim that euthanasia for minors is performed anyway is undermined by available research, and even if it did occur, that would not constitute a valid argument for legalizing euthanasia for minors. The argument from a consistency point of view, however, does provide some ethical justification and could perhaps support the position that a very strict age criterion is hard to justify since both competence and presence of unbearable suffering (the two main justifications for euthanasia) are not bound by biological age. Of course, consistency is but one ethical value and might be outweighed by other considerations.
By the same token, some of the arguments made against extending Belgium’s euthanasia law might equally be questioned. It is not clear, for example, whether there indeed exists no need for such an amendment to the law. Although physicians could indeed invoke the legal defence of “necessity,” even in the absence of a euthanasia law for minors, this would involve a considerable legal risk for physicians and would, in most cases, not be a realistic or particularly just option. Thus, the fact that euthanasia for minors is only a relatively small issue is not, in itself, an ethically valid argument against legalization.
Finally, there is the issue of the slippery slope. For many analysts, the legalization of euthanasia for minors is evidence that Belgium has gone down a slippery slope where legalization of euthanasia for adults inevitably resulted in an extension of the law. Whether or not this is indeed proof of a dangerous slippery slope is impossible to ascertain. In some ways, it unquestionably is a slippery slope, but other elements have to be taken into consideration as well. For one, it is not the case that most people were against euthanasia for minors when the 2002 euthanasia law was drafted and then gradually came to change their minds. Research indicates that acceptance rates for euthanasia for minors have always been high in Belgium (Pousset et al. 2011a; Broeckaert et al. 2009). Furthermore, as was mentioned above, when the law on euthanasia was drafted in 2002, many people wanted to extend euthanasia to include minors. For various (some say political) reasons this was not possible then and many proponents, therefore, felt that with this 2014 amendment, they were not so much extending the euthanasia law, as they were changing the law into what, for them, it was always meant to be.
As regards the future, it is difficult to predict whether this amendment will be the first of more to come. A topic that is currently up for discussion is whether the Belgian euthanasia law should also extend to people who are permanently incompetent, for example, due to a brain tumour or dementia. In Belgium, it is possible to request euthanasia through advance directive, but only for when one is in a state of irreversible unconsciousness (i.e., a permanent coma). This clearly rules out euthanasia patients with dementia or certain patients with brain tumours (e.g., glioblastoma) who are no longer competent but are not yet unconscious. The only possibility for such patients to receive euthanasia is to request it in an early stage of dementia or an early stage of the tumour, when they are still competent. When the Senate organized hearings with experts on extending the euthanasia law to include minors, they also consulted experts on this issue (Belgian Senate 2013a). Moreover, as with the extension to minors, several legislative proposals have been submitted to the Senate and continue to be submitted (e.g., to require physicians who do not wish to be involved in euthanasia to refer their patients to other physicians, or to allow euthanasia with an advance directive for patients who are conscious but permanently incompetent—final-stage dementia patients, for example). Currently, none of these have been accepted, but it is not impossible for one of those proposals to be translated into law in the future.
Belgium legalized euthanasia in 2002 and twelve years later amended this law for the first time, thereby making it possible for minors to receive euthanasia. This paper summarized how this amendment came to be law and what were the justifications given by proponents of such an amendment using official reports from the Belgian Senate and Chamber of Representatives. Many of the arguments (e.g., the argument of legal clarity and the argument of necessity) were found wanting.
The effect of this extension of the euthanasia law is yet to be determined. It has become clear from Belgian media reports that one year after the passing of the amendment there have been no reported cases of euthanasia for minors (Bruggeman 2015). This could, of course, be due to various factors. For example, there might not have been any request for euthanasia for minors, or physicians might be hesitant to perform euthanasia for minors, despite it being made legal. Unfortunately, there is no information on whether or not euthanasia was requested by a minor since the passing of the amendment, and it is therefore impossible to determine whether requests were denied or whether, quite simply, there were no requests. Further monitoring of the euthanasia law in the future will make clear how often the amendment will be used.
The amending of the 2002 euthanasia law also demonstrated that amending the law was a possibility. This raises the question of whether the law will be further amended in the future. As was discussed above, legislative proposals to further amend the law are submitted regularly. Whether these proposals make it to law also depends on political and societal factors, and it is thus impossible to predict the further evolution of the Belgian euthanasia law.
For a detailed discussion on the history and content of Belgium’s 2002 euthanasia law, see Griffiths, Weyers, and Adams (2008).
This is a special provision in Belgian law according to which in certain rare circumstances, a person who is legally a minor (but older than fifteen) can nevertheless be “emancipated” or legally considered an adult (in Dutch “ontvoogd”). One becomes emancipated through marriage or by declaration of a youth court. An emancipated minor has more decisional authority than a minor (mostly in terms of financial rights), but still not the same as an adult.
For better understanding of this paper, a brief word explaining Belgium’s governmental structure. Belgium has a bicameral legislature in which, at the time when this law was debated, ethical laws were first discussed in the Belgian Senate (at which time various amendments can be proposed) after which an agreed draft was sent to the Chamber of Representatives, where, in turn, the law was further discussed and amended. The Chamber of Representatives has the capacity to eventually pass the law which is then, symbolically, signed by the King of the Belgians. More recently, the role of the Belgian Senate has been changed and diminished, but this is not relevant here.
This study looked at euthanasia for children aged one to seventeen, so this may include patients who were never able to make a request due to their young age.
- Act amending the Act of 28 May 2002 on euthanasia, sanctioning euthanasia for minors. 2014. Belgian Official Gazette, number 2014009093: 21053.Google Scholar
- Andrews, C. 2014. Child euthanasia bill is “counsel of despair,” says bioethicist. Interview with Prof. David Albert Jones. Aleteia.org, February 2014. http://www.aleteia.org/en/society/article/child-euthanasia-is-council-of-despair-says-bioethicist-5289790371004416. Accessed June 23, 2015.
- Belgian Chamber of Representatives. 2014. Integral report with translated summary report of the speeches. CRIV 53. PLEN 185. http://www.dekamer.be/doc/PCRI/PDF/53/ip185.pdf. Accessed June 23, 2015.
- Belgian Senate. 2000. Amendement voor wetsvoorstel betreffende de euthanasie. Document number 2-244/3. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=33575757. Accessed June 23, 2015.
- Belgian Senate. 2001. Bijlage bij wetsvoorstel betreffende de euthanasie. Document number 2-244/24. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=33576763. Accessed June 23, 2015.
- Belgian Senate. 2004. Wetsvoorstel tot wijziging van de wet van 28 mei 2002 betreffende de euthanasie. Document number 3-804/1. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=50332915. Accessed June 23, 2015.
- Belgian Senate. 2006. Wetsvoorstel tot aanvulling van de wet van 28 mei 2002 betreffende de euthanasie wat betreft minderjarigen. Document number 3-1993/1. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=50335661. Accessed June 23, 2015.
- Belgian Senate. 2010a. Wetsvoorstel tot wijziging van de wet van 28 mei 2002 betreffende de euthanasie wat minderjarigen van vijftien jaar en ouder betreft. Document number 5-179/1. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=83886465. Accessed June 23, 2015.
- Belgian Senate. 2010b. Wetsvoorstel tot wijziging van artikel 3 van de wet van 28 mei 2002 betreffende de euthanasie, inzake euthanasie bij minderjarigen. Document number 5-21/1. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=83886096. Accessed June 23, 2015.
- Belgian Senate. 2012. Wetsvoorstel tot aanvulling van de wet van 28 mei 2002 betreffende de euthanasie, wat minderjarigen betreft. Document number 5-1610/1. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=83888534. Accessed June 23, 2015.
- Belgian Senate. 2013a. Annex to Wetsvoorstel tot wijziging van de wet van 28 mei 2002 betreffende de euthanasie teneinde euthanasie voor minderjarigen mogelijk te maken. Document number 5-2170/8. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=83890976. Accessed June 23, 2015.
- Belgian Senate. 2013b. Wetsvoorstel tot wijziging van de wet van 28 mei 2002 betreffende de euthanasie teneinde euthanasie voor minderjarigen mogelijk te maken. Document number 5-2170/1. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=83890023. Accessed June 23, 2015.
- Belgian Senate. 2013c. Verslag namens de verenigde commissies voor de justitie en voor de sociale aangelegenheden. Document number 5-2170/4. http://www.senate.be/www/webdriver?MItabObj=pdf&MIcolObj=pdf&MInamObj=pdfid&MItypeObj=application/pdf&MIvalObj=83890649. Accessed June 23, 2015.
- Bruggeman, F. 2015. Nog geen enkel geval van euthanasie op minderjarigen. Deredactie.be, April 22. http://deredactie.be/cm/vrtnieuws/binnenland/1.2313695. Accessed June 23, 2015
- Federale Controle- en Evaluatiecommissie Euthanasie. 2014. Zesde verslag aan de wetgevende kamers (2012–2013). http://www.health.belgium.be/filestore/19097638_NL/Rapport_Euthanasie12-13_NL.pdf. Accessed June 23, 2015.
- Griffiths, J., H. Weyers, and M. Adams. 2008. Euthanasia and law in Europe. Portland: Hart Publishing.Google Scholar
- Hope, T. 2014. Morality, science, and Belgium’s child euthanasia law. OUP Blog, May 23. http://blog.oup.com/2014/05/vsi-euthanasia-law/. Accessed June 23, 2015.
- Kamm, F. 1998. Physician-assisted suicide, euthanasia, and intending death. In Physician assisted suicide: Expanding the debate, edited by M. Battin, R. Rhodes, and A. Silvers, 28–62. New York: Routledge.Google Scholar
- Kidd, D., trans. 2002. The Belgian Act on euthanasia of May, 28th 2002. Ethical Perspectives 9(2–3): 182–188Google Scholar
- Mortier, F. 2003. Euthanasie bij minderjarigen. In Euthanasie: Nieuwe knelpunten in een voortgezette discussie, edited by M. Adams, J. Griffiths, and G. den Hartogh, 199–220. Kampen: Uitgeverij Kok.Google Scholar
- Onwuteaka-Philipsen, B., A. Brinkman-Stoppelenburg, C. Penning, G.J.F. de Jong-Krul, J.J. van Delden, and A. van der Heide. 2012. Trends in end-of-life practices before and after the enactment of the euthanasia law in the Netherlands from 1990 to 2010: A repeated cross-sectional survey. The Lancet 380(9845): 908–915.CrossRefGoogle Scholar
- Parliamentary Assembly. 2014. Legalisation of euthanasia for children in Belgium. Written declaration No. 567. Doc. 13414. http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20487&lang=en. Accessed June 23, 2015.
- Patients’ Rights Act. 2002. Belgian Official Gazette, number 2002022737: 43719.Google Scholar
- Smith, W.J. 2014. A bioethicist’s farcical case for child euthanasia. LifeSiteNews, June 17, Opinion section. https://www.lifesitenews.com/opinion/a-bioethicists-farcical-case-for-child-euthanasia. Accessed June 23, 2015.
- Traynor, I. 2014. Belgian law on euthanasia for children, with no age limit, will be first in world. The Guardian, February 12, World News section. http://www.theguardian.com/world/2014/feb/12/belgium-legalise-euthanasia-children-age-limit. Accessed June 23, 2015.
- van Berlaer, G., E. Duval, S. Debulpaep, et al. 2013. Haal levenseinde voor minderjarigen uit het duister. De Morgen, November 6, Opinion section. http://www.demorgen.be/lifestyle/haal-levenseinde-voor-minderjarigen-uit-het-duister-a1735733/. Accessed June 23, 2015.