Advance Directives under Germany's Civil Code in a Comparative Context

Private Law in the Service of Human Rights in Shifting Legal Cultures

Scientific Essay from the year 2015 in the subject Law - Comparative Legal Systems, Comparative Law, , language: English, abstract: Aging societies and advances in medicine make it likely that biomedical issues will pose legal challenges. While biolaw can provide some regulation, important life and death decisions have to be taken by patients and physicians. Often, though, patients are no longer capable of making such decisions. In 2009, Germany formalized the private law rules on advance directives. While advance directives, also referred to as living wills, are still widely associated with wishes for euthanasia, they function today goes far beyond that. In terms of criminal law, Germany still outlaws active euthanasia. In so far it differs from the Netherlands, Belgium, Luxembourg and Switzerland. Given that there has been a noticeable shift of emphasis from human dignity and the right to life to personal autonomy as a function of human dignity and in light of the legalization of euthanasia in several neighboring countries and resulting euthanasia tourism from Germany to Switzerland, there is a risk that the legal situation or at least the general attitude and the perception of the law will also change in Germany. This can lead to a risk of unwanted active or passive euthanasia, a problem which is highlighted by a case which is currently pending before the European Court of Human Rights against France. Taking into account human rights and human dignity as well as the continued underlying role of cultural-religious values it will be shown that there is now an emerging role for advance directives as tool to enable patients to protect their lives if the law fails to do so.

Docent Dr. Stefan Kirchner, Assessor jur., MJI is Associate Professor for Arctic Law at the Arctic Centre of the University of Lapland in Rovaniemi, Finland, and Adjunct Professor of Fundamental and Human Rights at the same university. His work focuses on the crossroads of human rights, the environment, shared areas, in particular the oceans and outer space, and international business and trade. Prior to joining the Arctic Governance Research Group at the Arctic Centre he taught public law, international law and civil rights as Visiting Professor for Transitional Justice at the University of Turin (Italy), University Lecturer and Associate Professor for Fundamental and Human Rights, with a Special Focus on Indigenous Rights, at the Faculty of Law of the University of Lapland in Rovaniemi (Finland), Assistant Professor for International Law and Associate Professor for the Law of the Sea at Vytautas Magnus University in Kaunas (Lithuania), scientific employee in the Department of Public Law of the Faculty of Law of Georg-August-University in Göttingen (Germany), and Visiting Lecturer at the Institute of International Relations at Tars Shevchenko National University in Kyiv (Ukraine) and at the Faculty of Law Justus-Liebig-University in Giessen (Germany). Formerly a practising lawyer (Rechtsanwalt) in Germany for over a decade, he has worked on international trade law, corporate law, the law of the sea and human rights law, including cases at the German Federal Constitutional Court (Bundesverfassungsgericht), the German Federal Supreme Court (Bundesgerichtshof), the German Federal Administrative Court (Bundesverwaltungsgericht) and the European Court of Human Rights. In addition, he served as legal agent for Germany's Federal Maritime and Hydrographic Agency, working on international shipping law, oil pollution and seafarer training issues. Dr. Kirchner is active in a number of professional organizations and is a regular reviewer for a number of academic publishing houses and academic journals, a member of editorial boards for several international academic journals and has written over one hundred academic articles and book chapters. He has been an evaluator of research projects for the Norwegian Academy of Sciences and Letters. Prior to his legal career he worked as a freelance journalist in Germany, as an emergency medical technician (Rettungssanitäter) for the German Red Cross and as a factory worker for a company producing transformers.