Death Tourism: How to Regulate This Thriving Industry?

Jessica (Tae Yean) Kim

Vol. 38 Associate Editor

On June 17, 2016, the Senate of Canada passed Bill C-14, enacting a new federal law which legalized physician-assisted suicide (PSA) in Canada.[1] This new legislation makes Canada one of the few nations where doctors are lawfully permitted to help terminally ill people die.[2] An interesting aspect of the new law is that it excludes non-Canadians, preventing the prospect of suicide tourism from the U.S and elsewhere.[3] Suicide tourism which is often referred to as “death tourism” can be defined as the phenomenon of individuals traveling abroad in search of assisted dying.[4] The issue of “death tourism” has been so controversial that Swiss journalists coined the term “strebetourismus,” a German word for “death tourism” as Word of the Year for 2007.[5] The United Kingdom is at the forefront of this global phenomenon.[6] According to the statistics from the University of Zurich, terminally ill British citizens formed the second largest group of European residents traveling abroad to Switzerland to die between 2008 and 2012.[7] English law strictly forbids citizens from seeking medical assistance to end their lives. England continues to have one of the most restrictive legal positions in Europe with respect to assisted suicide.[8] That position has led to the development of death tourism in the United Kingdom.[9] Strikingly different from the United Kingdom, Switzerland has the most liberal assisted suicide laws in the world, making it the most popular destination for death tourism.[10] Swiss law allows any individual to help patients die as long as the assisting party is not motivated by selfishness.[11] As long as there are no ulterior motives, assisted suicide will not be considered a crime pursuant to Article 115 of the Swiss penal code.[12] There are several features of the Swiss law that distinguish it from the assisted suicide laws of other countries.[13] First, in contrast to the practice in countries such as the Netherlands and the United States where a physician must assist in the patient’s death, the Swiss law allows anyone to assist suicide.[14] Second, the Swiss law does not require the patient to get a second opinion from a consulting physician, whereas other countries require attending physicians to get a referral from a consulting physician before granting a patient assistance in suicide.[15] The most striking aspect of the Swiss law, which opens the door to potential abuse, is that it does not require the patient to suffer from a severe physical disability or terminal illness.[16] This characteristic of the law has received much criticism from the international community, as this law can help kill non-terminally ill individuals with mental illnesses.[17] A lack of a terminal illness and physical disability requirement can lead to a serious situation where mentally ill patients are killed even when incompetent to make their own decisions.[18] Failure to ensure patients’ competence and voluntariness allows organizations that provide assisted suicide to help kill physically healthy individuals with mental illness such as schizophrenia.[19] The last defining feature of the Swiss law is that it lacks a residency requirement, making Switzerland the most popular destination for death tourism in the world.[20] Although some of the key features of the Swiss law help terminally ill patients from other countries obtain assistance in committing suicide and avoid prosecution, there is a growing concern about Switzerland’s lenient legal standards. The growth of death tourism has indicated that there is a real market for assisted suicide related services.[21] As death tourism has emerged as a new industry, there is an urgent need for international law to address this phenomenon.[22] Some scholars have suggested that international communities can curtail the potential abuse of death tourism by adopting an instrument of “soft law,” which can provide flexibility to countries so that they can effectively shape their responsibilities toward assisted suicide and set up a framework for compliance with those responsibilities.[23] Unlike hard law, soft law is only “potentially binding,” and less formal, thereby incurring less procedural costs and enabling quicker implementation than treaties.[24] Although the agreement is non-binding, more states are likely to accept the agreement as it can potentially lead to international compromise and cooperative resolution.[25] If Switzerland can modify its law in more stringent ways in order to decrease exploitation of its law regarding assisted suicide, there will be no need for other states to intervene. However, due to economic benefits from its assisted suicide clinics, Switzerland has no incentive to modify its existing law or ratify a new treaty that forbids it from extending assisted suicide services to non-citizens.[26] A more effective approach would be to have the United Nations General Assembly propose a recommendation to curtail the incidence of death tourism.[27] Despite the non-binding nature of a recommendation from the General Assembly, it is likely that a large number of states would accept this proposal because nearly all of the countries that legalize some form of assisted suicide have expressed concern about being a new destination for death tourism.[28] If Switzerland and other states refuse to adopt the recommendation, they may face international pressure from other states that heavily regulate assisted suicide.[29] An instrument of soft law would be one of the most effective ways to decrease death tourism, and by implication, exploitation of death tourism, as it helps states cooperatively resolve disputes between themselves with minimal contracting costs. Without proper international regulation concerning death tourism, it will not be long before a physically healthy teenager with a mental illness is able to travel abroad and convince a non-physician to end his life.

[1] Joan Bryden, Assisted Dying Bill C-14 Now Law, Global News (June 17, 2016), http://globalnews.ca/news/2769877/senators-bow-to-will-of-elected-commons-on-assisted-dying-bill. [2] Merrit Kennedy, Canada Legalizes Physician-Assisted Dying, NPR (June 18, 2016), http://www.npr.org/sections/thetwo-way/2016/06/18/482599089/canada-legalizes-physician-assisted-dying. [3] Rob Gillies, New Assisted Suicide Law Will be Limited to Canadians to Prevent Suicide Tourism, National Post (Apr. 14, 2016), http://news.nationalpost.com/news/canada/new-assisted-suicide-law-will-be-limited-to-canadians-to-prevent-suicide-tourism. [4] Alexander T. Safyan, A Call for International Regulation of the Thriving “Industry” of Death Tourism, 33 Loy. L.A. Int’l & Comp. L. Rev. 287, 288 (2011). [5] Rohith V. Srinivas, Exploring the Potential for American Death Tourism, 13(1) Mich. St. U. J. of Med. & L. 91, 93 (2009). [6] Safyan supra note 4, at 293. [7] Sarah Knapton, Nearly Quarter of Suicide Cases at Dignitas are Brits, The Telegraph (Aug. 20, 2014), http://www.telegraph.co.uk/news/science/science-news/11046232/Nearly-quarter-of-suicide-cases-at-Dignitas-are-Brits.html. [8]Ben P. Slight, Could Physician-Assisted Suicide be Classified as a Service under Article 49 of the European Community Treaty?, 10 Med. L. Int’l 139 (2009). [9] Id. at 141. [10] Id. at 309. [11] DeMond Shondell Miller & Christohper Gonzalez, When Death is the Destination: The Business of Death Tourism – Despite Legal and Social Implications, 7(3) Int’l J. of Culture, Tourism & Hospitality Res. 293, 299 (2013). [12] Id. [13] Safyan, supra note 4, at 309. [14] Id. [15] Id. at 310. [16] Id. [17] Id. [18] Id. [19] Id. [20] Id. [21] Miller & Gonzalez, supra note 11, at 301. [22] Safyan, supra note 4, at 289. [23] See id. [24] See id. at 315. [25] Id. at 316. [26] Id. at 317. [27] Id. [28] See id. at 318. [29] Id.