Euthanasia in Belgium: Legal, Historical and Political Review

In 2002 Belgium became the second nation in the world to legislatively decriminalise euthanasia,1 with the Netherlands preceding it by mere months.2 The Belgian euthanasia experience (BEE), which began before euthanasia was formally decriminalised, and its legal, historical, and political context, is the subject of this article. It aims to provide a broad overview of the law and its evolution, and elucidate the uniquely rapid and politically-motivated development of the BEE from its pre-legal origins to its most recent developments, in five main sections.The first is a survey of euthanasia practices before formal decriminalisation in 2002. The second sets the scene for the passing of the 2002 Act on Euthanasia by considering the political forces which influenced its coming into law. The third is a detailed discusMedical sion of the 2002 Act on Euthanasia, including a summary of criticisms that have been levelled against it. The fourth, more briefly, will survey the state of euthanasia practices after the passing of the 2002 Act which connects to the fifth section's discussion of later amendments to the Act and the subject of the relationship between euthanasia and organ procurement. The overall aim is to describe, contextualise and evaluate euthanasia as it has developed in Belgium, both in practice and in policy.Defining TermsThe Belgian Act on Euthanasia defines euthanasia as follows: "for the purposes of this Act, euthanasia is defined as intentionally terminating life by someone other than the person concerned, at the latter's request."3 Thus, in Belgium, euthanasia is only such if it involves a request from the person receiving it. This definition of euthanasia is somewhat idiosyncratic; it more accurately signifies what is usually called "voluntary euthanasia," because euthanasia perse does not necessarily involve consent.4This definition is not unique, however. It is lifted almost verbatim from what has been called the "odd Dutch definition,"5 which Dutch definition was the one unanimously assumed in the consultation processes which preceded Belgium's decriminalisation of euthanasia.6 Hence, from now on, "euthanasia" will be used here in the Aci's sense of the word, unless preceded by modifiers.I. Euthanasia Before Its DecriminalisationOne of Belgium's particularities is that euthanasia was relatively common and well-documented while it remained illegal. Two studies in the Lancet have recorded this phenomenon. In the first, Deliens et al (2001) surveyed physicians in Flanders concerning their end-of-life decisions. As a result, they estimated that there were:* 705 deaths due to euthanasia and physician-assisted suicide (PAS) (equivalent to 1.3% of total deaths);* 1,796 deaths due to lethal prescriptions without patient consent (3.2% of deaths);* 3,261 deaths due to the withholding of treatment with the explicit intention to hasten death (5.8% of deaths).This is clear evidence that illegal end-of-life practices in Belgium were fairly common, with at least 4.5% of deaths having been achieved illegally.7The second study drew on data pertaining to nearly 3,000 Belgian deaths up to February 2002. Its authors found that 1.82% of these deaths were due to PAS, voluntary and non-voluntary euthanasia. This last category accounted for 1.5% of the deaths.8Therefore, euthanasia and other illegal end-of-life practices were prevalent before the formal decriminalisation of euthanasia in 2002. Moreover, before 2001 there were "no or hardly any cases of persecution [sic], let alone punishment, of any physicians that have performed euthanasia."9 Not only was illegal euthanasia occurring, but it was not being followed up in the Courts either. This is why there is no Belgian case law concerning euthanasia (much in contrast to the Dutch euthanasia laws, which largely codified pre-existing case law.10)Hence, Belgium found itself in 2002 in the peculiar situation of decriminalising something which some members of the medical profession already engaged in with impunity. …