Constitutional Guarantee of Death with Dignity: Focusing on Setting the Component Requirements ofthe Right to Self-Determination on Death

Abstract

South Korea recognizes death with dignity only in the form of cessation of life-sustaining treatment for patients in the process of dying. Accordingly, a terminally ill patient or a patient in a persistent vegetative state cannot make a decision to die with dignity, and even if he or she is the target, there are limitations in choosing a method of dying with dignity such as physician-assisted suicide. These limitations cannot preclude discussion from the stage of component requirements. Therefore, in the decision to die with dignity, it is necessary to ensure that death with dignity is sufficiently guaranteed through the establishment of the component requirements for the right to self-determination on death. Regarding the requirements for becoming the subject of the right to self-determination on death in the decision to die with dignity, the requirements of irreversibility and the uselessness of treatment become the focal points. Accordingly, it is against the principle of equality to exclude a patient who has no essential difference from a patient in the process of dying and who meets the requirements from the subject. Therefore, in principle, it is desirable to acknowledge the subjectivity of the right to self-determination on death for these patients. First, in terms of the right to defense of the right to self-determination on death, the subject of the decision to die with dignity can request that the state stop restrictions on physician-assisted suicide. In the same respect, it is possible to ask the state to make a decision to discontinue general life-sustaining treatment. Next, based on the social rights aspect of the right to self-determination on death, the subject of decision to die with dignity can claim the right to receive social insurance and public assistance from the state. In particular, it can be requested that the state prepare overall welfare conditions such as hospice and palliative care systems so that patients' self-determination can be free from economic pressure. And, in terms of the protective right of the right to self-determination on death, the subject of the decision to die with dignity may claim the right to receive assistance from a doctor to the state. For example, if death with dignity is carried out by a private person other than a doctor, the right to self-determination on death may be violated, so the patient can request legislation to the state that obligates the participation of doctors in the decision to die with dignity. Lastly, in terms of the procedural right of the right to self-determination on death, in relation to organizations, supplementary legislative requests can be made to the state to expand the establishment or vitalize the operation of the Medical Institution Ethics Committee or the Public Ethics Committee. Regarding the procedure, it may be possible to request the state to prepare legislation to supplement the procedure for implementing death with dignity.