The regulation of physician-assisted dying (PAD), and in particular assisted suicide, represents one of the most contentious and conceptually demanding challenges in contemporary legal systems. Drawing on a comparative perspective focused on Germany, Great Britain and Norway, this post examines why legislative attempts to regulate assisted dying so frequently fail. It argues that these failures reflect deep normative tensions between individual autonomy and the duty of the state to protect life. The difficulty is a recurring one, as distinct legislatures struggle to translate abstract commitments to autonomy, protection and dignity into workable legal procedures.
Although these tensions are difficult to reconcile, they are not insurmountable. Indeed, the European Court of Human Rights (ECtHR) demands that member states strike a fair balance between the rights and interests involved (Mortier v Belgium para. 143) and does not accept the difficulty of achieving political consensus (Gross v Switzerland para. 66) as a justification for legislative inaction.
The Normative Starting Point: Autonomy and Its Limits
At first glance, the argument in favour of legalising assisted dying appears intuitively compelling. Liberal philosophical traditions, most notably articulated by John Stuart Mill (On Liberty 1859), emphasise the sovereignty of the individual over their body and mind. Later, Ronald Dworkin maintained that “making someone die in a way that others approve, but he believes a horrifying contradiction of his life, is a devastating, odious form of tyranny” (Life’s Dominion 1993). From these perspectives, the self-determined act of ending one’s life is a direct, albeit final, expression of the pursuit of personal autonomy inherent in human dignity. Accordingly, state interference should be limited to what is absolutely necessary (see also German Federal Constitutional Court Judgment 26 February 2020 – 2 BvR 2347/15 para. 211).
Yet this seemingly straightforward position encounters immediate resistance when placed within a legal framework in which the protection of life constitutes a potentially conflicting principle. In modern legal systems, the individual is not seen merely as a bearer of subjective rights, but also as embedded within a social order that has a paramount interest in preserving life.
The legal problem, therefore, lies in reconciling two powerful but potentially conflicting claims: the individual’s right to self-determination and the state’s obligation to safeguard life. This conflict underpins all regulatory attempts in this field. In addition to individual rights, any regulation must consider the consequences for vulnerable groups, medical practitioners and other persons potentially involved in the process of PAD.
Changing Social and Legal Contexts
The growing urgency of this issue is closely tied to wider societal and technological developments. Advances in medical science have extended life expectancy, often prolonging the lives of individuals suffering from incurable or degenerative conditions. As a result, an increasing number of people are confronted with the prospect of prolonged suffering and are faced with questions about whether—and how—they might choose to end their lives. At the same time, demands for greater self-determination have been strengthened by developments in constitutional and international human rights law, alongside shifting societal attitudes towards death and dying.
Yet these developments do not resolve the underlying tension; rather, they intensify it by placing additional pressure on legislators to respond.
The European Human Rights Framework: Freedom Within Limits
The case law of the ECtHR provides an important point of reference for national regulation, at least in Europe. In Karsai v Hungary (no. 3212/23, § 85), the Court observed that the right to decide when and how to die “relates to core aspects of his right to respect for his private life enshrined in Article 8 of the Convention. It concerns respect for his autonomy, physical and mental integrity and for human dignity, which is the very essence of the Convention”, provided that the decision is made freely and with full capacity.
At the same time, the Court recognised that member states enjoy a “considerable margin of appreciation” in this area (Karsai v Hungary no. 3212/23, § 139). This means that member states are not obliged to legalise assisted dying (ibid., § 144), but must ensure that any restrictions on individual autonomy are proportionate and strike a fair balance between competing interests (ibid., § 145).
This framework sets the stage for national regulatory efforts—while simultaneously highlighting the inherent difficulty of the task.
Germany: Constitutional Recognition Without Legislative Success
Germany provides a striking example of the gap between constitutional principle and legislative practice. In its landmark decision of 26 February 2020 (2 BvR 2347/15), the Federal Constitutional Court held that the German Constitution protects the right to a self-determined death, including the right to seek assistance.
This ruling represents one of the most autonomy-centred approaches in Europe. It rejects an absolute prohibition of assisted suicide as unconstitutional and significantly restricts the scope for state intervention in this area.
Despite this clear constitutional framework and strong public support for assisted dying, the German legislature has repeatedly failed to enact a regulatory regime. Multiple draft laws have been proposed, but none has succeeded in securing a parliamentary majority.
One reason for this failure lies in the constraints imposed by the constitutional ruling itself. Legislators are required to respect a broad conception of autonomy, which limits their ability to introduce restrictive conditions such as terminal illness or unbearable suffering. At the same time, there remains a strong political desire to implement safeguards to protect vulnerable individuals. The result is legislative paralysis: proposals either risk being unconstitutional or fail to gain sufficient political support.
Great Britain: Procedural Complexity and Political Contestation
Great Britain presents a different, but equally illustrative, case. In England and Wales, the Suicide Act 1961 imposes a blanket prohibition on assisted suicide, punishable by up to fourteen years’ imprisonment. Assisted suicide is also a criminal offence in Scotland.
In recent years, however, there have been several attempts to introduce reform, most notably through the Terminally Ill Adults (End of Life) Bill (for England and Wales) and the Assisted Dying for Terminally Ill Adults (Scotland) Bill. These proposals have generally adopted a highly procedural approach, seeking to ensure that assisted dying is only permitted under carefully controlled conditions.
The proposed regulatory frameworks typically include multiple stages: initial declarations, independent medical assessments, mandatory reflection periods, and final confirmation procedures. These safeguards are designed to ensure that decisions are voluntary, informed, and free from coercion.
Yet, despite strong public support, legislative efforts have repeatedly failed. The Terminally Ill Adults (End of Life) Bill, which was the most recent attempt at reform, passed the House of Commons but stalled in the House of Lords due to an overwhelming number of amendments and a lack of time. The Scottish Parliament voted against the Assisted Dying for Terminally Ill Adults (Scotland) Bill.
The British experience highlights a different dimension of the problem. Here, the difficulty does not lie in constitutional constraints, but in political fragmentation and the challenge of designing a regulatory framework that satisfies competing ethical concerns. The result is an increasingly complex and bureaucratic legislative model. The provisions on conscientious objection risk giving the impression that PAD is being entrusted to a medical profession that is expected, as a body, to object to the very task assigned to it. Under these conditions, it is hard to see how the proposed regulation can achieve its objective.
Norway: Absolute Prohibition and Legislative Inertia
Compared with Germany and Great Britain, Norway represents the most restrictive approach. Assisted suicide remains subject to an absolute prohibition under the Penal Code, flanked by severe criminal sanctions.
The underlying normative position is clear: life is regarded as an inalienable good that cannot voluntarily be disposed of by individuals (cf. NOU 2004:4 s. 350 and Ot.prp. nr. 22 (2008-2009) s. 189). This principle is reflected in legislative history, which explicitly rejects the idea that consent or any voluntary decision can legitimise the taking of life.
Interestingly, there is a considerable gap between “law in the books” and “law in action”. Despite the strict legislative framework, courts have frequently mitigated sentences in cases involving compassionate and altruistic motives, in a way that is hardly in accordance with legislative intent or the letter of the law.
Despite increasing public support for legalisation, political actors in Norway have shown little willingness to initiate reform. This reluctance may reflect a desire to avoid engaging with a morally divisive issue, effectively delegating difficult end-of-life decisions to medical practice and ethics rather than legal regulation.
Explaining Legislative Failure
The comparative analysis reveals that the failure to regulate PAD has different causes across jurisdictions: constitutional constraints in Germany, procedural complexity and political contestation in Great Britain, and political inertia in Norway.
However, these variations share a common underlying cause: the difficulty of striking a stable and legitimate balance between competing values.
Any attempt to prioritise one of these values risks undermining the others. A strongly autonomy-based approach may fail to provide adequate safeguards, while a highly protective framework may unduly restrict individual freedom. The challenge is not merely to find a compromise, but to adopt a comprehensive regulatory framework that is perceived as balanced by stakeholders. However, this also means that stakeholders insisting on full legalisation or an absolute ban must accept that their positions will need to be mitigated, at least to some extent. That this is possible to achieve can be seen in the successful attempts to regulate the topic in Austria, and, most recently, in France.
Conclusion: The Challenge of Creating a Balanced Regulatory Approach
The regulation of assisted dying illustrates the challenges of legal design in the face of profound ethical disagreement. The European Court of Human Rights has made clear that member states have a duty to strike a fair balance between individual autonomy and the protection of life.
Yet the experiences of Germany, Great Britain, and Norway suggest that such a balance is extraordinarily difficult to achieve. Legislative failure in this area reflects not only political disagreement, but also a deeper uncertainty about the role of law in regulating the most intimate and irreversible of human decisions. Avoiding the issue, however, is not a sustainable response. Confidence in democratic institutions and in democracy itself requires decisive action and a willingness to confront these questions openly and with due regard to the evidence.
Comparative legal studies can serve as an important source of inspiration and reference for that task. They can help to assess alternative regulatory models, strategies, risks, and effects in the governance of end-of-life decision-making, including effective safeguards for the protection of medical practitioners, vulnerable persons, and the wider public interest.
While comparative analysis can identify structural similarities and cultural differences, it cannot resolve the underlying normative and ethical conflicts. Still, it can improve the quality of legislative debate by informing legislators about regulatory choices and trade-offs. Political reluctance to engage then becomes more difficult to defend. Gathering knowledge is essential for an informed discourse in a democratic society. Dismissing scientific knowledge on the basis that this would inevitably open Pandora’s Box towards the legalisation of PAD and would relativise the value of life poses a threat to democratic debate and human rights protection.
By Professor Sören Koch, University of Bergen.
British Association of Comparative Law 