Assisted Dying Laws in Ireland: Another bridge to freedom or a step too far?

Worldwide, more than 400 million people have a legal right to die. In the early 2000s, the Netherlands paved the way as the first country to legalise the authorisation of physicians to perform euthanasia and physician-assisted suicide when requested by a patient. Since then, many of its European counterparts have started to question its laws on the area, with some jurisdictions following in the Dutch footsteps.

The definition of ‘Assisted Dying’ is the voluntary act of intentionally providing another person with the knowledge or means to end his or her life. In jurisdictions where assisted dying is legal, the methods used are voluntary assisted or physician-assisted suicide or euthanasia.

Current Irish Legislation:

In Ireland, assisting in another person’s suicide is a criminal offence, this includes physician- assisted suicide or euthanasia.

While, the introduction of the Irish Criminal Law (Suicide) Act 1993 marked a major turning point in the Irish psyche towards the concept of suicide, the offence of assisted suicide was retained and put on a statutory footing. The offence of assisted suicide can be seen in Section 2 (2) of the act. It outlines that any person who aids, abets, counsels or procures the suicide or attempts the suicide of another person is guilty of such an offence.

The retention of this offence is understandable, mainly to ensure the continued protection of vulnerable persons who may be pressured into suicide by another. However, the retention of this offence to include those not of a vulnerable status has been questioned.

Case Law:

The case of Fleming v Ireland [2013] IEHC 2 was the catalyst for many, in questioning the assisted dying laws in the Irish jurisdiction.

The question for the High Court, in this case, was whether the legislation prohibiting ‘even a citizen in deep personal distress and afflicted by a terminal and degenerative illness to avail of assisted suicide’ was in contravention of the constitutionally protected rights of personal autonomy and liberty under the Irish Constitution.

Marie Fleming wished for the court to grant her a peaceful death but did not wish to leave behind a legacy in which her partner or her children could be prosecuted. Ultimately, the court held that the prohibition on assisted dying is a proportionate measure designed to protect the right to life, especially those most vulnerable, which cannot be achieved in any other less intrusive way. The Court determined that Section 2 (2) acts as a deterrent to ensure the protection of those most vulnerable in society.

The decision of the Irish High Court and Supreme Court in the case of Marie Fleming show a strong stance and presumption of constitutionality towards the prohibition of assisted suicide.

It seems that any change in this stance will have to come from the Oireachtas through legislation.

There is a strong argument that Marie Fleming’s right to autonomy had been disregarded, given she could not commit suicide herself due to her physical incapacity. The only way she could ensure her suicide would be through assistance.

The case of Marie Fleming did pave way for discussions as to whether legislation could be provided for those of full mental capacity, who have an unbearable and irreversible terminal illness, to avail of assisted suicide services in Ireland.

Legislative attempts:

The ‘Dying with Dignity Bill 2020’ was the first attempt at such legislation in the Irish jurisdiction.

The introduction of the bill brought with it intense scrutiny from medical and legal professions, with fears of potential abuse if such legislation was passed. The 2020 bill did not make it into legislation and was deemed not workable in its current form by the Justice Committee in July 2021.

The Bill itself did however lay the groundwork for further legislation to be proposed. It was recommended that a Special Oireachtas Committee should look at the bill and the topic as a whole.

This committee was established and published their final report ‘Final Report of the Joint Committee in Assisted Dying’ on the 20^{th of} March 2024, chaired by Michael Healy Rae. The Committee had 38 recommendations in its report but perhaps the most important being, its recommendation to allow legislation to be introduced in restricted circumstances.

Following this report, the Dail voted on a motion to take note of these recommendations, with 76 in favour and 53 against, marking a change in the attitude of the Oireachtas towards Assisted Suicide. It paved way for a private members bill in 2024, called the ‘Voluntary Assisted Dying Bill 2024’. 

The Voluntary Assisted Dying Bill 2024 heavily reflects the recommendations of the Joint Oireachtas Committee’s report, and it acknowledges the potential concerns with the Dying with Dignity Bill 2020. It looks to adequately provide for autonomy while acknowledging and protecting those most vulnerable in society.

A potential Slippery Slope?

The ‘slippery slope argument’ is often frequently cited as a concern for those who oppose assisted suicide.

While the slippery slope is primarily based on fears of what could happen, it still has relevance.

We have seen more relaxed laws in the Netherlands, where persons as young as 12 having the option of availing of assisted suicide with the consent of their parents. In Belgium, a relaxing of laws in 2014, has allowed persons to avail of assisted suicide if they suffer from psychiatric disorders.

The relaxing of laws in Belgium and Netherlands does back up the slippery slope argument, however, many other jurisdictions who have legalised assisted dying, continue to follow a strict procedure and criteria. The concerns however are valid and should be noted.

The pathway to legislation for assisted dying in Ireland is tough to predict. Is it a right for one to choose the path they wish to die, or are we perhaps taking a step too far if we allow such legislation? The answer to that question remains heavily contested.

About the author: Adam Walsh is a Legal Intern in Dermot G. O’Donovan Solicitors and he is contactable on awalsh@dgod.ie