Helpful Texts

Link zum Mandala von Bruder Klaus
Ernst-Wolfgang Böckenförde

Human Dignity and the Right to Life
at the Beginning and End of Life {*}

Outline of the Problems

 

From: Stimmen der Zeit, 4/2008, pp. 245-258
webmaster's own, not authorized translation

 

    In connection with issues such as embryo research and euthanasia the concept of human dignity wins a new relevance. ERNST WOLFGANG BÖCKENFÖRDE, retired judge of the Federal Constitutional Court, explains the nature of the guaranty of human dignity and examines its implications for the current fields of debate.

 

At present we experience an increased debate about human dignity, its reach, the respect for and the threat to it. I mention the keywords: consumptive embryo research, active euthanasia in the Netherlands and Belgium, the Swiss organization "Dignitas", the abuse and humiliation of prisoners (Guatanamo), the alarmingly high number of abortions.

Why is the theme of human dignity suddenly so relevant? Are there new challenges waiting for an answer; is it a growing sensitivity to human dignity or is it about relativizing adaptations? Is human dignity retreating, does it remain inviolable or is it often violated?

The following article is divided into two sections: In the first it is about the character and content of the guaranty for human dignity and the right to life, in a lengthily second section about the problems with regard to the inviolability of human dignity and the right to life and the respect for them at the beginning and end of life. I give my view on this matter primarily as a lawyer, and I'm perfectly aware of the fact that the issues and problems have at the same time also reference to ethics, philosophy and theology.

 

I. Nature and Content of the Guaranty for Human Dignity and the Right to Life

The starting point is article 1, paragraph 1 of the Basic Law. It is part of the Constitution as a legal document, which lays claim to a normative validity and is not only an opening line without legal liability. It says: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority."

 

The Deliberations and Decisions in the Parliamentary Council

Why did article 1, section 1 get into the Basic Law? There was a specific reason for it: The memory of the bitter and terrible experiences of the Nazi period,

 


246

the misanthropy and thousandfold borne by the State violation of human dignity, the deportations, the deliberate humiliation and destruction of people because of their race or nationality, the treatment of people as available material. That was to be replaced by a different and new order, an order that contains a protection against the return of the experienced injustice and abuse of power. One therefore decided in favour of a novel guaranty, the imperative of respect for human dignity, supplemented by the right to life, which up to then was not listed in the basic rights catalogues of the Constitution because it was rather taken for granted {1}.

But the Parliamentary Council did not leave it at a general declaration of human dignity in a preamble; so it had happened with the Universal Declaration of Human Rights of 1948, the draft of which was known to the Parliamentary Council {2}. One goes beyond that. The recognition of and the respect for human dignity is to be the normative foundation of the new state order. This becomes very clear in clause 2, which prescribes the obligation of all state authority to respect and protect the human dignity. It is to be the obligatory foundation of all governmental actions, and applies also to the living together in society, which is arranged by the state {3}. It means the recognition and respect of each human being as a subject, as a carrier of fundamental rights, particularly the right to life and of freedom to responsible action. This is the permanent guideline that is not at the disposal of the state authority, be it in legislation, administration or jurisdiction.

 

Detailed Contents of the Human Dignity Guaranty

1st - What now does the guaranty of human dignity mean as legal term and as part of our legal system? As with any legal concept, this requires a detailed clarification and definition, so that it is usable in the administration of justice, that concrete effects in the sense of a precept or prohibition can come from it, and that it does not get lost in a general appeal. That is not as easy as it first appears. For the concept of human dignity has no legal tradition; as normatively binding legal concept it is used for the first time in the Basic Law.

In the current debate it is sometimes said the concept of human dignity was an empty formula, into which everyone could read what he wanted to pick out from it. That goes certainly too far. But unquestionably the concept of human dignity is a so-called open concept, which admittedly has a solid core but in addition can be determined quite variably in its content. From where then are we to gain the criteria according to which the core of the concept of human dignity can be separated from its open conceptual surroundings?

 


247

Decisive is that the concept of human dignity has a meaning relating to the history of ideas and philosophy. As such it was also seen by the fathers and mothers of the Basic Law in the Parliamentary Council. The question is to what extent that content relating to the history of the mind and philosophy has with establishing the concept of human dignity as a legal concept been taken over into the law, and how it can be translated into law.

2nd - When we ask about the relevant ideas in the Parliamentary Council regarding the foundation and content of human dignity, there essentially two ideas about root and content of human dignity appear {4}. The one idea saw the foundation of human dignity in man's likeness to God, as it is set down in the Creation story of the Old Testament (Gen 1, 27): "So God created man in his own image, in the image of God he created him; male and female he created them." From it follows man's inalienable subject status, precisely because he has been created in God's image and is thus adopted by him. The other idea has its foundation in humanism, in thought and philosophy of the Enlightenment, particularly in Immanuel Kant. The dignity of man has its origin in his rationality and freedom, which are designed for self-determined, independent action and distinguish man alone.

Between these two ideas not an absolute but a relatively far-reaching convergence exists. According to this convergence the normative content of the guaranty of human dignity, namely what constitutes its core and is to be the binding foundation of the state order, can certainly be found out. And as such, as far as I can see, it is hardly controversial.

This normative content can be described more in detail in three respects: First, in the recognition of every man's position as subject. Man is "an end in itself", to use a phrase of Kant {5}. The raison d'être of his life is - to quote the Federal Constitutional Court - "existence for its own sake". Man must never be only an object; he is protected against humiliation and totally being used for certain purposes. He has, fundamentally, a right to rights.

Secondly, from the inviolability of human dignity and the obligation to respect and protect it, defined in clause 2 of article 1, section 1, results what the lawyers call "balancing resistance" {6}. Respect for human dignity is more than just a point or factor which has to be taken into account when the legal system is formed, but can also possibly become less important compared with other important factors; it is rather the indispensable foundation, which must always be observed, and can neither be restricted nor given up {7}.

Thirdly, the more precise concretization and definition of this normative content takes place from the acts of infringement. What matters are not a positive development and corresponding conclusions, which then easily number among the guaranty of human dignity everything in agreement with human dignity, but the violations which as such are of evidence.

 


248

It's similar as with justice. The effort to define it positively will easily lead to different views and argumentative discussions, and finally to mere opinions, whereas agreement can soon be achieved about fundamental injustice, about what clearly and definitely contradicts justice.

When the content of the guaranty of human dignity is so defined more in detail from the violations, it is important to focus on elementary violations, and to leave it at that. This is connected with the preservation of the core content. For the wanted inviolability can seriously be maintained for the core content alone, but not for open developments and interpretations. Otherwise the guaranty of human dignity cannot be implemented. The rightly criticized extension of the guaranty of human dignity into many kinds of small coins makes its relativization inevitable.

 

II. Problems of the Guaranty of Human Dignity and the Right to Life here and now

After those fundamental considerations, I turn to the problems of the guaranty of human dignity and the right to life here and now. Here I'd like to select two issues and to confine myself to them: the recognition and the respect of human dignity and the right to life at the beginning and end of life.

 

Human Dignity and the Right to Life at the Beginning of Life

Here the main question, where in principle everything else is decided, is how far the guaranty of human dignity and the right to life applies to the embryo. There is, as you know, a lively and predominantly argumentative discussion about it. Often that discussion is lead from a questionable and incorrect starting point. So from the part of the natural sciences often the question is asked whether a being of four or sixteen cells can - according to the biological findings - already be regarded as a human being, can it for example have the dignity of a person. From the empirical findings that appeared rather as absurd. From when on such a biological entity could be regarded and treated as a human being, was - as the former President of the Max Planck Society, Hubert Markl formulated it - a cultural ascription by virtue of human determination {8}. For it I'm allowed to refer to a dictum of the former President of the Federal Constitutional Court, Jutta Limbach: "Jurisprudence is not competent to answer the question, 'When does human life begin?' ... Science is on the basis of its findings not in a position to answer the question, 'From when on human life should be put under the protection of the Constitution?" {9}

 


249

If you want to come to rationally justified results which are evident in themselves, that can only happen when you take your starting point from the living human being - for example all of us around here. It is undisputed that all of us, that every person born is bearer of human dignity. The decisive question is: How far must this recognition and bearing of the human dignity reach into every human being's life process, so that it remains true and does not become a farce? If it is to remain true, it cannot become valid only from a certain stage in the individual life process, e.g. the nidation, the forming of the cerebral cortex or the birth, but from the beginning, the starting point of one's own existence {10}. Only then also the "end in itself" is safeguarded for man.

The first beginning of every human being's own life lies in the fertilization, not later. By it not only some new kind of human life develops that is also already present in the sperm or egg, but a new human being in its own right. This living being, as tiny as it may still be in its beginnings, is unmistakably identified by the combination of a so and not otherwise specified set of chromosomes; therein lies - scientifically undisputed - the biological foundation of the individual. The genetic code is determined, and also the basis for the physical and mental dispositions and the development potential is already given; but they are intended for further development in the ongoing life process, which at first needs decisive motherly assistance and which can also be opposed by obstacles, but they are not some time or other formed anew.

Thus the embryo does not become man until some time or other, but develops as this human being in permanent identity and continuity {11}. The program of development already exists; it does no longer need a completion; it develops in the course of the life process regardless of essential motherly assistance according to its own organization. This is not least confirmed by the arbitrariness of all the later points in time which are asserted for the change from the embryo to a human being. Why should it be just the nidation, the forming of the cortex, the beginning movement in the womb, the birth, the ability to feel pain? The arbitrariness prevailing here is obvious.

If, therefore, the embryo is embraced by the constitutional recognition of human dignity and - connected with it - the precept to respect and protect it, the question of the consequences raises. I'd like to select two main points: the prohibition of instrumentalization and the right to life.

1st - The prohibition of instrumentalization is just the other side of the recognition that the embryo too is an end in itself. This prohibition includes the consumptive research on embryos. Here the embryo is produced only for the purpose of consumption, i.e. its killing, in order to win stem cells from it. It is fully instrumentalized.

 


250

But isn't there on the other hand the goal pursued by the consumptive embryo research, namely to achieve knowledge to cure serious illnesses? This goal of healing, however, is - what is often overlooked - quite uncertain. It is only about expectations - connected with the stem cell research -, that perhaps knowledge about the possibilities to heal can result from it. Can such expectations justify the killing of an embryo, which is nothing else than an individual human being in the earliest stages of its development?

That this is not acceptable, can in my opinion also be communicated to a patient suffering from muskovizidose. The argumentation would be as follows: Certainly, everything should and must be done to find ways to heal your serious illness. But you yourself have once been a tiny embryo before as well as after the nidation. And it cannot be that you could have been eliminated, that it even was legal to eliminate you, in order to discover this way perhaps some time some remedies.

To stand by this prohibition, because it is based on considerations of principle, is therefore neither merciless nor useless. It has not last an effect as impulse to new researches, to produce pluripotent cells in a different way than by killing embryos. How quickly the research can move forward here, we just learn from the news that in two different places pluripotent cells have been re-developed from adult mouse cells.

In the same way the selection is subjected to the prohibition of instrumentalization. With the selection it is no longer about the human being as such, which comes to life through artificial insemination. It is not wanted and recognized for its own sake, as an end in itself, but only if it has certain characteristics and qualities, they may be in sex, skin colour, intelligence or health. Only then - according to that view - the embryo (as a human being in nuce) is worth to exist and to develop. In my opinion the pre-implantation diagnosis can just for that reason not be justified {12}.

2nd - The right to life is based on human dignity; it is a fundamental right resulting from human dignity - the existence for its own sake. Therefore also the embryo it entitled to it {13}, but it is not identical with human dignity what is often not sufficiently kept apart from each other in the discussion.

For the right to life, although it has its origin in the human dignity, is not absolute and also not "inviolable". In certain borderline cases it can be limited or also be abolished. This is not only confirmed by article 2, paragraph 2 of the Basic Law, which adds to the right to life a legal reservation of restrictions, but also by the reality of law and life. Think of the case of self-defence or assistance in an emergency, in which also the killing of a human being can be justified, of the so-called final shot fired to save lives in order to fend off a deadly attack, of soldiers in war, of the sometimes extremely dangerous commitment of police forces and fire brigade.

 

251

There are however, as the above quoted examples show, very narrow limits for restrictions and infringements of the right to life. It has to be about truly existential conflict situations; other, less far-reaching means for solving the conflict must be missing, and the principle of proportionality must always be maintained.

If you apply these principles to the abortion issue, there are really only two reasons which can justify an abortion: If life stands against life, the field of the so-called vital-medicinal indication, and if for the wife and mother the reasonable limit of sacrifice, i.e. the expected measure of sacrificing existential life values is exceeded through the acceptation and the carrying the child to full term. In this respect the current legal situation regarding abortion is extremely unsatisfactory.

In paragraph 218a, section 2 of the Criminal Code the medicinal indication is - in the sense of a also psycho-social indication - so broadly defined that through it in the practical implementation far more than just the existential conflict cases from the unity in duality of mother and child are covered and in particular the embryo-pathical indication - finding a hide-out here - has got totally out of hand, up to (legitimate) late abortions until shortly before the birth. All the more important is the creditable work of the association Donum Vitae, to work in the sense of preserving the lives of unborn children by advising women in pregnancy conflicts.

 

Problems of the Guaranty of Human Dignity and the Right to Life at the End of Life

As starting point the principle is regarded: The right to life of every human being, based on human dignity, exists until the end of life. This is reflected in the general prohibition of killing and the obligation of the doctor to cure illness and to save life. How far is in it also the holding up of the natural end of life included?

In view of the current discussions above all two questions arise. For one thing: Can the obligation to save life conflict with the claim to dignity, is there a right to die with dignity, and when does it begin? Secondly: Is there apart from the right to life also an obligation to life, or is there the right - be it of the patient, the sick person or any man - to dispose of one's own life? If so, to what extent, under what conditions, from when on and how is it related to the dignity of man {14}?

After that general explanation I'd like to select three problems: the end-of-life-care, the patient's living will, and euthanasia.

1st - End-of-life-care means the right to accompaniment in the last stage of life up to death, which is more than medical care or mere custody. It refers to recognition and respect for human dignity and involves the assistance in dying with dignity.

 


252

Not through the hands of a third party but on its hand man is to die, as Federal President Horst Köhler has impressively expressed it. Into that context belongs the performance and commitment of the hospice movement , which for several years has been growing, and also the palliative medicine, which urgently needs support and extension. It raises the question: When and how are people allowed to die? And it tries to clarify at what moment life extension, which is imperative for the doctor, turns into a lengthening of dying that is not at all imperative {15}.

I have just deliberately spoken of the right to end-of-life-care. Such a right is not already also a legal title. Such end-of-life-care is a deed of solidarity by family members and society too, it is often referred to volunteers and to voluntary activity as an expression of solidary togetherness. A legal title to end-of-life-care fails because of the limits to making people discharge their duties (Inpflichtnahme) of solidarity. Such compulsory service, as far as it is possible at all, meets the own rights and interests of the relatives and fellow men, meets limits of sacrifice which cannot be exceeded, and is generally subject to proportionality. If you take the demographic development into consideration, a great challenge approaches us in the foreseeable future. The extent of indicated and hoped for end-of-life-care will steadily increase, the available personal staff of the middle as well as soon also of the older generation - even beyond the world of work will decrease.

2nd - The topicality of the living will has its main reason in the tremendous possibilities of the medical apparatuses to prolong life, both for deadly diseases as well as for diseases with no possibility of cure. In view of those possibilities often the question arises whether there still a meaningful life is given or just a mere existence without meaning. The original impulse for living wills was therefore to limit the prolongation of life enabled by medicinal equipment, carried by the acceptance of death in a fatal or no longer curable disease. Meanwhile living wills go in their purpose beyond that, they appear also as a path to open a door for disposing of life in special situations. With the living will three key issues arise: its scope, time and form. What matters in view of the scope are the points to which the living will applies. Does it only apply in case of a fatal disease without any chance of cure, does it also apply in the case of another serious and agonizingly painful disease, or does it generally apply, even if the patient only expresses: I do no longer want to live?

 


253

In terms of time the question arises: Does a living will permanently apply or does it need a renewal or confirmation from time to time? How far can in a concrete situation conclusions be drawn regarding the continuation of a previous will that had been expressed then without any personal trouble? Expressions of will are always also related to the situation; views and attitudes can change in the course of time. Is therefore a confirmation or re-writing needed in a set period, e.g. in three, five or ten years? For it is always about finding out the supposed intention of the patient, when he himself is no longer able to utter his real wish. This applies in particular to relatives, social workers and doctors. If the patient is able in a particular illness or accident situation to utter his own wish, this is anyway binding {16}.

As for the form, it is important whether the living will must be drawn up in writing or can also be made by spoken word/orally. For the written form speaks its warning and securing function. Statements, which have far-reaching effects and can - should the occasion arise - no longer be taken back, should not be made casually, without detailed consideration and possible advice. For exactly this reason estate contracts must be documented by a notary. Are living wills not at least of equal importance, so that not only the written form but also a certified consultation is advisable?

The expert draft of the Federal Ministry of Justice by the end of 2004 {17} declared itself in favour of a general permissibility of the living will, put forward no time-limits and did not lay down that it must be drawn up in writing. According to it even an oral utterance to a friend made ten years ago could be asserted as effective living will. This bill contained great risks with regard to the ascertainment about the patient's real and responsible will as such. It was carried by a philosophy of a comprehensive self-determination and self-disposal on disease treatment and perhaps even life itself. It then became irrelevant.

3rd - The issue of euthanasia is characterized by a tension between different ethical and legal principles. There is on the one hand the protection of life as a consequence of the right to life, on the other hand the self-determination as a consequence of human dignity. Added to it is the principle of non-disposability of life. Can and how far can this tension be resolved, can workable general answers be found?

With euthanasia one differentiates between passive and active euthanasia. This distinction is - typically considered - clear in itself; it takes into account the course of reasons getting death going: Is this getting going caused by the person dying resp. killing itself or does it happen from outside, through a third person? At the borders this distinction is admittedly fluid. Let's think of a severely suffering sick person asking for tablets that cause death.

 


254

When they are only put in front of him and he himself takes them the facts are clear. But what when he is unable to move his arms and hands, and can therefore take the tablets only by feeding him with them? Does here passive turn into active euthanasia? I mention this example in order to warn against rash answers and conclusions.

Passive euthanasia is more than giving free rein to the natural course of dying without medical intervention. To let somebody die is not euthanasia. Also the respect for the patient's wish not to be treated medicinally, even if the non-treatment will lead to death in the foreseeable future, is no euthanasia. The gist of the passive euthanasia turns out to be (medical) assistance to suicide. The decision to act, to get the dying going is with the patient. But the means and ways are provided through assistance.

With regard to law it is not a killing on request, in accordance with paragraph 216 of the Penal Code, but an assisted suicide. In Germany suicide is not punishable, that's why aiding and abetting a suicide too is not punishable, because as elements of an offence acting as accessory always requires a punishable main offence.

Nevertheless, problems remain. On the one hand they consist in the distinction between legal and ethical assessment. What is permissible in law can nevertheless be ethically problematic or reprehensible. The principles of the Federal Chamber of Physicians about end-of-life-care, formulated in 2004, start from the assumption that aiding and abetting a suicide is contrary to medical ethics {18}. Furthermore a difficult situation occurs for persons with a guarantor position (doctor, spouse, social worker). They are obliged by law to make sure that the suicide decision is made freely and on one's own responsibility, for otherwise, for instance in an exceptional mental situation which seriously impairs or excludes deciding on one's own responsibility, they are still obliged to rescue life {19}. In addition, there can be a subsequent obligation to save someone's life, when the attempted suicide has led to unconsciousness and helplessness but death has not yet occurred. Does also the obligation to resuscitate belong to that obligation to save life {20}?

The Swiss organization "Dignitas" operates in the context of passive euthanasia alone. Its activity is therefore no punishable offence. If one wanted to stop its activity, special elements of offence must be created, which for instance takes into consideration selfish commercial motivations. Does that make sense {21}?

Active euthanasia is when a third party, usually a doctor or assistant gets the killing/dying going. It is about a (medically) assisted killing on request. In Germany it is a punishable offence, in the Netherlands and Belgium it is permitted on principle, if one observes conditions of medical and procedural kind {22}; Britain is on the way to allow it with limitations.

There are reasons of principle and pragmatic reasons in favour of a prohibition of the active euthanasia. Reasons of principle result from the non-recognition of the right freely to dispose of one's life

 


255

and from the fact that in the case of active euthanasia a right of a third party to dispose (although under provisos) of the lives of others is recognized. That means the collapse of a bulwark for the protection of life. This also occurs when there is no longer sufficient protection against summary decisions made in a special situation, which because of their effect can no longer be revised.

The pragmatic reasons result from the problems of the freedom of decision of the one who is ready to kill. How many factors can here become effective which restrict the freedom of decision and in border cases also exclude it: Influences of social environment (Who then wants to live forever?), pressure from the relatives, societal expectations regarding the burden of care and the cost explosion, the urge to be no longer a burden for others {23}. In particular, there are dangers when it is about drawing conclusions from a "presumed intention". Also a far-reaching change in the medical profession takes place through the possible responsibility for such a procedure, and also through the participation of doctors in procedural solutions (multiple medical opinions, etc.). The doctor is no longer only helper to life and healer of diseases, he also provides access to death.

4th Finally a word about the ethical and moral background of the problems just dealt with: end-of-life-care, living will, and euthanasia. One basic question is always relevant here, namely the scope of self-determination as consequence of the dignity of man. Does it include the self-disposal of one's own life: generally - in exceptional cases - not at all?

It is important for an answer to become aware of the connection between human dignity and the conception of man. According to the Christian conception of man there is on principle no right to dispose of one's own life. Life is given by God, man is created in his image and likeness, that's why man cannot dispose of his life. In former times this was very strictly held - the suicide was not allowed to be buried in consecrated ground; today in possible border cases it is conceded that a suicide then perhaps is not to be condemned, but one stands by the principle of non-disposal of the own life given by God.

From it the conclusion results that it is at any rate possible to let (in contrast to euthanasia) a terminal case die. Dying (and with it death) is part of life. A prolonging intervention in the process of dying, when this is in progress, is neither imperative nor appropriate. There are also no reservations to the use of palliative means, if they have the side effect to shorten the process of dying. But it is not allowed prematurely to end life, because it is no longer worth living. From it a problem can arise, when the prolongation of life by measures of medical apparatuses leads to nothing else but a mechanical vegetating on.

 


256

For such cases a new consideration seems advisable, whether and when it is allowed to end such kind of life prolongation.

If you take your starting point from a conception of man which is related to freedom and autonomy, as it is particularly expressed in Kant's philosophy, the following results: Autonomy, as it has often been misinterpreted, does not mean simply arbitrariness, for it has its foundation in man as an end in himself. Since he is an end in himself, he is as subject called to autonomy, i.e. to give himself laws in the sense of working out maxims and behaviour standards which can be generalized. But such self-legislation finds its limitation in the contradiction with itself

That man is as an end in himself and subject of responsible action has as pre-condition that he gives an affirmative answer to his subject status and so to his own life, because his life is the pre-condition for his self-determination. Self-determination means to act and decide out of one's own subject status in a self-determined way, but not the subject status as such, i.e. the ability to decide in a self-determined way. Suicide is therefore a contradiction in itself; it destroys man's existence as a moral subject, and thus his own dignity {24}.

This conception of man as well does therefore not support the free disposal of life, but it justifies - by accepting the finiteness of life - to let dying happen instead of a possible delay of the process of dying, and it also justifies the avoidance of a continued mere vegetative existence as a meaningless life.

How can and should the secular legal system react in view of this finding? The Christian conception of man is no longer generally recognized and determinant. The conception of man related to freedom is about to free itself from its pre-conditions as I've just presented them. In contrast to it an individualistic conception of man becomes dominant in our society, for which the free, understood in the sense of arbitrary self-determination becomes of prime importance; it replaces the acceptance of the fact that man is created by God. Self-determination gains therefore a universal scope and arbitrariness as regards content; only rights of others or special responsibilities taken by you can oppose it.

Thus the maintenance of previously recognized, as it were natural limits of man's disposal of himself become dependent on the mind-educating role and power of the Christians and of a sound humanism. If it decreases and if there is a lack in the commitment to the Christian or to the humanist (related to freedom) conception of man, previous matters of course in people's living together become little by little hollow and run dry. It is up to us to accept the challenge.

 


257

NOTES

{1} Relevant are above all the consultations in the committee for fundamental questions: see Der Parlamentarische Rat 1948-1949. Akten u. Protokolle, volume 5, 1 and 2, revised by E. Pickart and W. Werner (Boppard 1993) to be precise the 3rd session of 21 September 1948; 4th session of 23 September 1948; 22nd session of 8 November 1948; 23rd session of 19 November 1948; 32nd session of 11 January 1949.

{2} It was said there, "Since the recognition of the dignity dwelling within all members of mankind and of their equal and inalienable rights is the foundation of freedom, justice and peace in the world ... the misjudgment and disregard of the human rights lead to acts of barbarity."

{3} So for instance the honourable Member Mr Carlo Schmid (SPD) said about Article 1 as follows, "It is, as it were, the general condition for the entire catalogue of fundamental rights. In its systematic importance it is the actual key to the whole.", see Der Parlamentarische Rat (note 1) 82.

{4} See about it especialley the 22nd and 23rd session of the committee for fundamental questions of the Parliamentary Council on 18 and 19 November 1948, in: Der Parlamentarische Rat (note 1), volume 5, 2, 585f., 590, 598, 608f.

{5} I. Kant, Metaphysik der Sitten, Tugendlehre, 38; the same, Grundlegung zur Metaphysik der Sitten, edited by K. Vorländer (Leipzig ³1947) 52, 60f.

{6} BVerfGE 88, 203 (252).

{7} Instead of others H. Dreier, in: Grundgesetz. Kommentar, edited by the same, volume 1 (Tübingen ²2004) Article 1, section 1, marginal notes 132134, with further proofs.

{8} H. Markl, Freiheit, Verantwortung, Menschenwürde, in: Biopolitik, edited by Ch. Geyer (Frankfurt 2001) 180-183.

{9} J. Limbach, Mensch ohne Makel, in: FAZ, 25.2.2002, 51.

{10} So also the overwhelming opinion in literature on Constitutional Law, see for instance G. Dürig, Grundgesetz, article 1 section 1 (first version) marginal note 24, in: Grundgesetz. Kommentar. Loseblattsammlung, edited by Th. Maunz u. the same (München 1958); W. Höfling, Art. 1, Rdn. 46 u. 47, in: Grundgesetz. Kommentar, edited by M. Sachs (München 21996); Ch. Starck, article 1 section 1, marginal note 18, in: Das Bonner Grundgesetz. Kommentar, volume 1 (München 419992001); A. Laufs, Fortpflanzungsmedizin u. Menschenwürde, in: NJW 39 (2000) 2716ff. Anderer Ansicht H. Dreier, article 1 section 1, marginal note 47, 50, in: Grundgesetz. Kommentar, edited by the same (Tübingen 11996, zurückhaltender, aber im Ergebnis wohl gleich: 22004, Rdn. 66); H. Hofmann, Die versprochene Menschenwürde, in: AöR 118 (1993) 361f., 375f.; A. Podlech, in: Alternativkommentar zum Grundgesetz, Art. 1 Abs. 1, Rdn. 51f.

{11} See for instance J. Wisser, Einzigartig u. Komplett, in: Biopolitik, edited by Ch. Geyer (Frankfurt 2001) 221. There is so far a fundamental difference to K. Hilpert, Fünf Jahre deutsches Stammzellgesetz, in this periodical 226 (2008) 1525, here 21, for whom embryos are only "in a close connection with the existence as human being and moral person" and "in anticipation of this chance to be able to become a human being (!) they deserve to be treated respectfully and not only correctly". From there the possibilities result to weigh up the problems of research on embryonal stem cells, see at the same place 23f.

{12} About it in detail B. Böckenförde-Wunderlich, Präimplantationsdiagnostik als Rechtsproblem (Tübingen 2002).

{13} In the same way Starck (note 10) article 2, marginal note 176; D. Murswiek, article 2, marginal note 145, in: Grundgesetz. Kommentar, edited by Sachs (note 10); H. Schulze-Fielitz, article 2 section 2, marginal note 24, in: Grundgesetz. Kommentar, edited by Dreier (note 10); K. Stern, Das Staatsrecht der Bundesrepublik Deutschland, volume III, 1 (München 1988) 106ff.

{14} A reliable orientation is still given by R. Schlund, Der manipulierte Tod u. das menschliche Sterben (Freiburg 1987); further O. W. Lembcke, Sterben in Würde. Zur institutionellen Vermittlung von Selbstbestimmung u. Fürsorgepflicht, in: Jahrbuch für Recht und Ethik 15 (2007) 501523.

 


258

{15} A good outline of the problems, also about euthanasia, in Th. Klie and J. Ch. Student, Sterben in Würde. Auswege aus dem Dilemma Sterbehilfe (Freiburg 2007); further: Wann dürfen Menschen sterben? Ein Gespräch mit dem Münchner Palliativmediziner Gian Domenico Borasio, in: FAZ, 19.1.2007, 43.

{16} From the increasingly numerous literature be referred to the explanation "Zur rechtlichen Verbindlichkeit von Patientenverfügungen" of the Zentralkomitees der deutschen Katholiken vom 30.6.2006 and K. Grüber and J. Nicklas-Faust, Patientenverfügungen ein notwendiges u. wirksames Instrument zur Stärkung der Patientenautonomie? IMEW Konkret No 7 (2004).

{17} A 13475/8- 1121758/2004, sent to the Federal judicial authorities on 2 November 2004. It did not come to a bill of the Federal Government.

{18} Guidelines of the Federal Medical Council (Bundesärztekammer) on end-of-life-care of 7 May 2004, in: Deutsches Ärzteblatt 2004, A 1298.

{19} About the problems existing here and the relevant administration of justice see H.-L. Schreiber, Strafbarkeit des assistierten Suizids?, in: Festschrift für Günter Jakobs zum 70. Geburtstag, edited by M. Pawlik and others (Berlin 2007) 615625.

{20} See Schreiber (note 18) 619f.

{21} Appraising considerations about it in Schreiber (note 19) 624ff.; further E. Hilgendorf, Zur Strafwürdigkeit von Sterbehilfegesellschaften, in: Jahrbuch für Recht und Ethik 15 (2007) 479499.

{21} About the legal situation, the practical handling and the awareness of the situation in the Netherlands see M. Düwell and E. Felkema, Über die niederländische Euthanasiepolitik u. -praxis, Berlin IMEW, Expertise 5.

{22} The problems and difficulties with regard to the free responsibility of the decision, which already exists with the passive euthanasia, become here more obvious.

{23} See about it also F. Kamphaus, Es ist nicht leicht, Gott zu sein, in: the same, Um Gottes willen Leben. Einsprüche (Freiburg 2004) 60 f.

{24} E.-W. Böckenförde, Vom Wandel des Menschenbildes im Recht (Münster 2001) 2536.

    {*} This contribution is based on a lecture given at the Forum "Recognition of Human Dignity and Right to Life at the Beginning and End of Life" of "Donum Vitae Region Freiburg" in cooperation with the Konrad Adenauer Foundation on 28 November 2007 in Freiburg.

 

Link to 'Public Con-Spiration for-with-of the Poor'