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Article Germany: Federal Administrative Court Rejects Granting Access to Lethal Drugs to Commit Suicide

In joint decisions published on March 4, 2024, the German Federal Administrative Court (Bundesverwaltungsgericht, BVerwG) denied the plaintiffs permission to acquire sodium pentobarbital for the purpose of suicide. The court considered the denials compatible with the constitutionally protected right to a self-determined death under article 2, paragraph 1 in conjunction with article 1, paragraph 1 of the German Basic Law (Grundgesetz, GG) because there are alternative medical means for ending one’s life.

Facts of the Cases

The plaintiffs in the two cases before the Federal Administrative Court were individuals dealing with severe illnesses. In 2017, their requests for a license to procure sodium pentobarbital for assisted suicide were rejected by the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte, BfArM). This substance is typically employed in assisted suicide to induce death through asphyxiation and suffocation. Despite the plaintiffs’ objections, the Federal Institute upheld its decisions in November 2018. (BVerwG 3 C 8.22, paras. 2–4; BVerwG 3 C 9.22, paras. 2–4.)

The plaintiffs’ actions against the decisions of the Federal Institute were unsuccessful in the lower instances before the Cologne Administrative Court (Verwaltungsgericht Köln, VG) and the appeals court Higher Administrative Court of North Rhine-Westphalia (Oberverwaltungsgericht Nordrhein-Westfalen, OVG NRW). The lower courts held that the mandatory grounds for refusing an authorization under section 5, paragraph 1, number 6 of the German Narcotics Act (Betäubungsmittelgesetz, BtMG) precluded granting the requested permit. The appeals court ruled that a purchase permit for the use of sodium pentobarbital to commit suicide contradicts the purpose of the Narcotics Act, which aims to safeguard human health. (OVG NRW, paras. 27–29.) The Higher Administrative Court considered the case to be of fundamental importance and therefore allowed the further appeal to the Federal Administrative Court.

The Federal Administrative Court’s Decision

In its decision, the Federal Administrative Court denied both plaintiffs access to the lethal narcotic sodium pentobarbital. In the opinion of the court, the Narcotics Act permits the acquisition of such substances for therapeutic purposes only, not for suicide. (BVerwG 3 C 8.22, paras. 9, 10; BVerwG 3 C 9.22, paras. 9, 10.)

The court explained that purchasing sodium pentobarbital, classified as a narcotic under the Narcotics Act, requires authorization from the Federal Institute for Drugs and Medical Devices, as outlined in section 3 of the Narcotics Act. However, this authorization can be granted only if there are no grounds for refusal, such as those specified in section 5, paragraph 1, number 6 of the Narcotics Act. According to this provision, the Federal Institute may withhold a license if the “nature and purpose” of the drug’s use is incompatible with the objectives of the Narcotics Act. These objectives encompass “ensuring necessary medical care for the population” and “preventing the abuse of narcotics as much as possible,” referring to the use of narcotics for treating or alleviating diseases or pathological conditions. In the opinion of the court, ending one’s life does not have such therapeutic purposes, even if it is not explicitly mentioned in the Narcotics Act. (BVerwG 3 C 8.22, paras. 11, 12; BVerwG 3 C 9.22, paras. 11, 12.)

The court acknowledged that the denial generally infringed the fundamental right to a self-determined death but considered the denial justifiable. It stated that the general prohibition on acquiring narcotics for suicide under the Narcotics Act serves the legitimate goal of preventing the misuse and abuse of lethal substances. It considered the prohibition appropriate and necessary to achieve this objective, given that individuals who decide to end their lives have alternative, reasonable options. According to the findings of the appeals court, which are binding for the proceedings at the Federal Administrative Court, individuals seeking to end their lives have realistic alternatives, such as obtaining a combination of prescription medication that may be used together to commit a painless suicide from a doctor or receiving assistance from organizations that connect them with doctors willing to help with assisted suicide. (BVerwG 3 C 8.22, paras. 15, 19–44, 48; BVerwG 3 C 9.22, paras. 15, 19–44, 48.)

Moreover, the Federal Administrative Court rejected the claim that the plaintiffs were entitled to receive a permit due to “extreme distress,” as outlined in the court’s prior decision of March 2, 2017 (BVerwG 3 C 19.15). Extreme distress exists if the severe and incurable disease is connected with grave physical suffering, in particular severe pain, which results in unbearable psychological strain for the affected person and cannot be reduced sufficiently, and if the affected person is able to make decisions and has made the free and earnest choice to end their life and if they do not have any other reasonable option to carry out the wish to die. (BVerwG 2017 decision, para. 31.) The court maintained that the plaintiffs have reasonable alternatives to committing suicide with sodium pentobarbital, thereby negating the conditions for an emergency situation. (BVerwG 3 C 8.22, para. 61; BVerwG 3 C 9.22, para. 61.)

Fundamental Right to a Self-Determined Death

The general right of personality under article 2, paragraph 1 in conjunction with article 1, paragraph 1 of the German Basic Law guarantees individuals the freedom to decide when, whether, and how to end their own lives. This right is not confined to severe or incurable illnesses and requires no justification, as affirmed by the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) on February 26, 2020. In that decision, the court declared the criminal prohibition in section 217 of the German Criminal Code (Strafgesetzbuch, StGB) on commercial assisted suicide null and void. However, the provisions of section 3, paragraph 1, number 1 along with section 5, paragraph 1, number 6 of the Narcotics Act limit this freedom. Individuals who have chosen to end their lives with sodium pentobarbital face obstacles in carrying out their decision due to the unavailability of this narcotic. Despite several attempts by the legislature, assisted suicide remains unregulated in Germany. The Federal Administrative Court acknowledged the decision of the Federal Constitutional Court, but stated that the plaintiffs could not derive any rights from it that would alter the decision to grant them access to sodium pentobarbital. (BVerwG 3 C 8.22, para. 13; BVerwG 3 C 9.22, para. 13.)

Prepared by Laura Schwarz, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

April 5, 2024

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