Is the categorical denial of pentobarbital for assisted suicide a violation of the constitutional right to a self-determined death in Germany?

Abstract

Aiding in suicide is no criminal offence under German law. In addition, a constitutional right to a self-determined death exists, including relying on third-party assistance, where offered. To exercise such a constitutional right, persons require access to effective lethal medication. Pentobarbital is a substance commonly used in jurisdictions allowing assisted dying. Yet, in Germany, the Federal Institute for Drugs and Medical Devices, based on the Narcotic Drugs Act, categorically rejects pentobarbital licence applications with the consequence that pentobarbital is not available in Germany for assisted suicide purposes. Persons wanting to die must either rely on other, frequently less effective drugs or find a medical practitioner willing to set up an intravenous infusion with a lethal substance. This may prove difficult in practice. Several unsuccessful applicants have therefore challenged these licence rejections, but administrative courts have generally upheld the Federal Institute's decisions. This article examines whether the section in the Narcotic Drugs Act, which in its current interpretation prevents access to pentobarbital, is constitutional. It analyses whether this restriction disproportionately limits the constitutional right to a self-determined death of licence applicants and concludes that, due to its severe impact on persons wishing to die, serious doubts arise regarding the section's constitutionality.