Sodium Pentobarbital
Should those who wish to die have access to a deadly drug? Judges must make fundamental judgments
The anesthetic sodium pentobarbital is used in Belgium, the Netherlands and Switzerland as part of the euthanasia permitted there
© Picture Alliance
Everyone has the right to a self-determined death. That is how the Constitutional Court ruled. In Münster, three people have now gone to court who want to die but cannot because a federal authority is in their way. A process with far-reaching consequences.
As is so often the case in the judiciary, the subject of the proceedings initially sounds bureaucratic. But what is being negotiated today at the Münster Higher Administrative Court under file number 9 A 146/21 has consequences for all of us. It’s about death. About whether and under what circumstances someone should be allowed to end their own life. And quite concretely: whether such a person should have the right to access a deadly drug.
At the latest after the groundbreaking judgment of the Federal Constitutional Court in February 2020, one thing is certain: everyone has a fundamental right to a self-determined death within the framework of their personal rights. But anyone who wants to exercise this fundamental right in Germany is faced with a problem: they have nowhere to get access to a deadly drug. At least not if he wants to implement his resolution to end his life self-determined and as painlessly as possible.
The authority that regulates access to medicines in Germany is the Federal Institute for Drugs and Medical Devices (BfArM), based in Bonn. According to the federal government from September 2021, a total of 223 applications for permission to purchase the deadly drug sodium pentobarbital have been pending there since 2017. No case was approved. Partly because the then Federal Minister of Health Jens Spahn (CDU) had specifically instructed the office not to apply a judgment of the Federal Administrative Court from 2017, which had allowed the purchase in the event that the applicant was in an extreme emergency.
Trio is suing against the Federal Institute’s practice of kidnapping
A trio has filed a lawsuit against this practice of kidnapping on behalf of other applicants, so that the case has now arrived at the Higher Administrative Court for the state of North Rhine-Westphalia. One of the plaintiffs is 51 years old and has had multiple sclerosis for over 20 years. The man is paralyzed below the shoulder and requires 24-hour care. Another plaintiff from the district of Schwäbisch-Hall is 68 years old and suffers from multiple diseases in addition to cancer. After numerous operations, she has to endure considerable pain. The same applies to 77-year-old Hans-Jürgen Brennecke from Reppenstedt (Lüneburg district), who suffers from cancer as well as heart disease. “I would like to have the freedom to decide for myself when I no longer want to endure unbearable suffering,” says Brennecke in an NDR report on his case.
It’s about the anesthetic sodium pentobarbital
Just like his comrades-in-arms, Brennecke had applied to the BfArM for permission to purchase the anesthetic sodium pentobarbital and had failed. The drug is used in Belgium, the Netherlands and Switzerland as part of the euthanasia permitted there and is considered a reliable and, above all, painless means of suicide. The lower court, the administrative court in Cologne, had argued that there may also be alternatives for the plaintiffs that could also lead to death in a reasonable way.
The Higher Administrative Court must now decide on this. The judge’s verdict is also of fundamental importance because it could set guidelines with which euthanasia is specifically regulated in this country. Two years ago, the Federal Constitutional Court overturned the ban on organized euthanasia because it would violate the individual’s right to self-determined dying. But de facto, the fundamental right established by the highest court is meaningless because it cannot be implemented due to the ban on access to the deadly drug of choice.
The question of how euthanasia should be organized in Germany is also on the agenda of the Bundestag in the current legislative period. Without being forced to belong to a parliamentary group, several parliamentary groups are making motions with very different approaches. But the process is lengthy. For Brennecke and his comrades-in-arms, a corresponding law may come too late. He complains: “It’s strange to have a right but not get it implemented by a bureaucracy.”