Leiden Law Blog

Has a child the right to die?

Posted on by Apollonia Bolscher in Private Law , 1
Has a child the right to die?

Recently an intense debate about child euthanasia flared up again in the Netherlands. This happened after Belgium removed the age restrictions for euthanasia in February 2014. Some Dutch pediatricians advocated euthanasia for all minors when the suffering is unbearable. The Dutch Pediatric Association (hereafter: NVK) argues in its recent point of view to allow euthanasia for all minors and to use mental competence as a key criteria instead of age. Especially given that research has shown that children younger than 12 years of age who participate in medical research are often able to assess the consequences of their consent. The NVK also pleads for more research on major challenges in the current end of life care in the age group 1-12 years. This debate sparks a legal question: is euthanasia a children’s right?

Euthanasia in The Netherlands

In The Netherlands euthanasia is becoming more common: last year euthanasia accounted for 3 percent of all deaths. For minors however, euthanasia is a rarity: in the last couple of years there have been only five cases of euthanasia. With the consent of both parents, euthanasia is allowed for children aged 12 years and above if they are mentally competent and the suffering is hopeless and unbearable. For minors aged 16 and 17 parents need only be involved in the process.

Recently the Committee on the Rights of the Child touched upon child euthanasia in the Concluding Observations of 2015 of The Netherlands under Article 6 of The International Convention on the Rights of the Child  (hereafter: CRC). The Committee seems to struggle with the issue and is very critical about the Dutch euthanasia policy for minors. It continually expresses its concerns about insufficient transparency and supervision of the practice and recommends abolishing the use of euthanasia in The Netherlands for individuals under the age of 18.

It remains questionable whether a ban on euthanasia, as recommended by the Committee on the Rights of the Child, is in line with the spirit of the CRC. In my opinion the NVK corresponds more with it. How should we look at this recommendation from a children's rights perspective?

A children’s rights perspective

Children have the fundamental right to life, survival and development to the maximum extent possible. This is set out in article 6 CRC, one of the guiding principles of the Convention. Governments should recognise and ensure these rights. Yet, in my view, it does not prohibit euthanasia. Article 12 CRC recognises the value of a child’s views and the need to give the child’s view due weight in accordance with the age and maturity of the child. Strict age requirements on child euthanasia could therefore not be justified. In this perspective a more flexible approach adapted to the individual child could be supported. Article 5 CRC also acknowledges children’s evolving capacities and parents’ responsibility to provide guidance to a child in the exercise of his or her rights. This does not mean pushing them to make (irreversible) choices with consequences that they are too young to handle. The right to health for children is enshrined in article 24 CRC. For terminally ill children the right to health has a great value and should be seen in relation to the best interests of the child (article 3 CRC), the right to be heard (article 12 CRC), and the principle of non-discrimination (article 2 CRC). When it comes to health care decisions, the Committee on the Rights of the Child states in General Comment No. 4 on adolescent health and development and General Comment No.12 on children’s rights to be heard, that children ‘must have the opportunity to participate in decisions affecting their health and it ensures to receive counseling and to negotiate the health-behavior choices they make’. For children who have the capacity to make decisions about their health care, the respect of their views may be decisive in how they should be treated. 

Euthanasia: ‘one-of-a-kind’ decision

When we talk about health care decisions, child euthanasia brings its own complexities and is one-of-a-kind. Having a clear ‘concept of death’ is a necessary ability when it comes to euthanasia; research has shown that this develops gradually and at different ages. In addition there are also other relevant skills needed for a euthanasia decision, such as: knowledge about the concept of the diagnosis, the other treatment methods, the chances of survival, the weight of alternatives, and the communication of a choice. A fitting method that determines which skills a child needs exactly and how these should be evaluated to make a life-ending decision has not been developed yet and more research has to be done.

Conclusion

Has a child the right to die? Since the answer is not that clear-cut and the CRC leaves room for different interpretations about this very delicate issue, it is hard to determine whether euthanasia is a children’s right. However I believe that the CRC presents no obstacles for euthanasia as a children’s right in the first place. The CRC requires that every situation asks for an individual approach for each child and a careful balance between the participation- and protection rights of the child. This is achievable because of the low numbers involved in child euthanasia. Age restrictions should therefore be rejected, because they ignore the maturity of the child. Using ‘mental age’ as a key criteria to determine whether a child can ask for euthanasia shows that children are actively involved in their own health care. At the same time we must conclude that there is not an answer to the question that lies at the centre of the debate: whether children may actually be able to decide about their own death and how we should measure it. Given the irreversible nature of euthanasia, a scientific basis is essential to switch to ‘the mental competence regime’. For the time being age restrictions should therefore be maintained. In conclusion: more research must first be done, as this is necessary in order to be in line with the spirit of the CRC. 

1 Comment

Olaf Verbeek
Posted on September 14, 2015 at 13:34 by Olaf Verbeek

Very interesting topic! I was wondering, how does this relate to the Pretty case? And Haas v Switzerland? I mean, the ECtHR did not recognise a “Right to Die” in these cases. Why would it be recognised for children?

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