Journal International Law_N2-10.indd

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saerTaSoriso samarTlis Jurnali, #2, 2010 JOURNAL OF INTERNATIONAL LAW, N2, 2010months. 18 This reveals the attitude to the issueof euthanasia is gradually getting more liberalin Germany and both the court and society areseeking a basis to justify the act.In Catholic Italy, “Euthanasia” is not apopular term, although vigorous discussionson this topic are debated from a medical aswell as a legal point of view. 19 Several yearsago, lawyers participating in a symposium tothe issue of euthanasia in Turin worked out adraft document for discussion, titled “BiologicalWill”, which incurable patients were allowedto sign. It released medical personnel assistinginfi rmed people in mercy killing from legalresponsibility. Participants of the symposiumemphasized that euthanasia should be considereda fundamental human right. 20 Thisidea was not supported in Italy due to the irreconcilableposition of the Catholic Churchin matters of euthanasia. Pope John Paul IIdemanded the government (in a strict manneruncharacteristic of him) to take measuresto protect family by prohibiting abortions andeuthanasia. The Pope appealed to the clergyto struggle against euthanasia and assistedsuicide by every means. “One who does notrespect life, especially its weaknesses, I mustremind you, that life is a gift of God and it iseverybody’s duty to protect it”, the Pope declared.He underlined that this duty especiallyrefers to medical personnel, who have takenthe Hippocratic Oath. 21From the ethical point of view, there arisesa question. Isn’t every incident of euthanasiaa form of murder according to law?! Somepeople that are close to a person slowly dyingand in unbearable physical pain, believe thereis no sense to speak about morality when anindividual is begging for an end his torturedexistence. Supporters of euthanasia think thatif the life of this person was perfect, deathshould also be pleasant. 22Annual public opinion surveys in Hollandreveal that euthanasia is not viewed as aninfringement on human life. 80-90% of thosequestioned believe this. When Pope John PaulII publicly condemned euthanasia, the numberof Dutch euthanasia supporters increased by5%. 23 In Holland, the number of euthanasiacases is gradually growing and will presumablycontinue to in the future, as the populationbecomes accustomed to the opinion thata person can manage his fate by himself.Today, medical techniques and methodsof intensive care are so developed that equipmentcan perform all the vital functions of anorganism and practically extend life indefi nitely.However, there is a problem with passiveeuthanasia not addressed in legislation, wheredoctors can terminate the life of a personin a coma for a long period, with no chancesof survival. In such cases, the physicians assumethat the patient himself would not beagainst the physician’s decision incases whenthe patient cannot express his own opinion.It should be noted that most countriesaround the world recognize passive euthanasia,including Georgia. 242. EUTHANASIA ACCORDING TO THELAWS OF GEORGIAThe attitude of Georgian society towardseuthanasia is generally negative, due to theposition of the Georgian Orthodox Church, ancientnational traditions and customs, in whicheuthanasia is unmistakably considered murderand suicide - a mortal sin.Euthanasia is considered by Georgianlegislation as intentional murder committedunder facilitating circumstances, and punishmentis respectively lighter than general intentionalmurder. In a wide sense, euthanasiameans ending a mentally and physically defi -cient life with a noble idea. Therefore, underthe law, the court has been granted an authorityto take compassion into consideration as acircumstance facilitating the responsibility.In the Criminal Code of Georgia, activeeuthanasia is forbidden because a physicianshould by no means take part in a prematuredeath and jeopardize the moral ground of thephysician’s profession. 25Based on Article 110 of the Criminal Codeof Georgia, terminating a life, whether at thevictim’s insistence and genuine will or againsthis will, is considered murder. The victim’sconsent and insistence do not release an individualfrom the responsibility.202
T. SADRADZE, ETHICAL AND LEGAL PROBLEMS OF EUTHANASIAThe legislation emphasizes three materialcomponents in the disposition: 1. Inspiration ofan accused person by the victim, 2. Insistenceof a person, 3. Fulfi llment of the victim’s will.These three components determine the subjectiveposition of an offender that facilitatedan intentional killing. An offender intentionallykills a sick person, however, this intention isinspired by and originated from the victim inorder to free the dying person from intensephysical suffering.The insistence of a victim, according tohis genuine will, is a factor that provokes inspiration.This implies that a person is infl uencedwhen a certain feeling to do something appears,sometimes against his will and contraryto accepted principles of behavior. When a dyingperson insists to end his tortured life, it canproduce a pitiful affect on a subject, where thedesire to free the dying person from unbearable,inhuman torture appears, which can berelieved by giving him a chance to die peacefully.26 Notwithstanding the aforementioned,we face an act of public danger; terminatinga person’s life. This cannot be considered acircumstance that absolves the guilty, as itviolates a constitutional principle. “Life is aninaccessible human right and it is protected bylaw”. In this case, the Constitution and publicopinion correspond to the opinions of theOrthodox Church, which has an irreconcilableposition regarding euthanasia.According to the Criminal Code of Georgia,killing at the victim’s request (euthanasia) isincluded in the group of privileged compositions,as the matter refers not only to killingwith the victim’s consent, but an insisted requestof an individual concerning his releasefrom physical agony. This request should expressthe actual will of the dying person. Heshould be in a condition to completely controland manage his facilities but if the victim is notin such a condition, taking his life is intentionalmurder, unless of course, there is no otherburdensome circumstance. 27Under the Law of Georgia on the Patient’sRights, it is highlighted that euthanasia isforbidden to medical personnel and is notpermitted in any way. However, at the sametime, according to Article 24 “Every citizen ofGeorgia has the right to express in advancehis/her wish (consent or refusal) in writtenform concerning the provision of resuscitation,life-saving treatment or palliative care, whenthe patient becomes incompetent or losesdecision-making capacity, only if such a conditionis caused by:a) Terminal stage of incurable disease;b) Disease, which inevitably will cause seriousdisability”. i.e. the patient is given anopportunity to make a decision whetherto undergo a course of treatment to extendhis life or not. The Law of Georgia onHealthcare refers to the same issue. 28The patient may refuse and stop treatment,but neither a physician nor any otherperson (relative, friend, etc.) may render assistanceto the dying patient.Thus, active euthanasia is forbidden andpassive euthanasia is permitted in Georgia.Passive euthanasia is considered a privilegedtype of killing. (Article 110).3. CONFLICT BETWEEN THE SUPPORTERSAND OPPONENTS OF EUTHANASIAEuthanasia has a number of supportersand opponents. They have serious argumentssubstantiating the correctness of their opinion.The matter of selecting a general criterion iscomplicated by the uniqueness, individuality,inclinations, desires, religion, ethno-psychologicalnature, traditions, habits, etc. of eachindividual and infi rmed person.Currently, many people realize that euthanasiais not “murder” and that it is the “right ofa person on their deathbed”. As the authors ofone manual of the Criminal Code of Englandnote, “notwithstanding the prohibition, thereare still a lot of similar cases in medical practice,as for the opinion of society, it is mainlyexpressed by close relatives and/or friends ofthe patient and they see nothing immoral in it,on the contrary, they consider that the latter isphysically and morally facilitating for both parties,although all of them greatly respect humanlife“. 29Sometimes we encounter intense situationsin life when people must watch the agony203
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