Canada's Process of Legalizing Assisted Dying... Is It Applicable to Korea?

"Canadian Supreme Court Ruling as a Catalyst for Legalizing Medical Assistants"

Amid heated debates in Korean society regarding medical assistance in dying and the legalization of dignified death, an analysis has emerged highlighting similarities between Canada’s situation before legalizing medical assistance in dying and its legalization process, offering insights for Korea. This analysis is gaining attention as the Constitutional Court is currently reviewing a constitutional complaint related to dignified death.

The Constitutional Court Research Institute (Director Kim Ha-yeol) held the 13th International Academic Symposium on June 4 at the main auditorium of the Constitutional Court Research Institute in Gangnam-gu, Seoul, under the main theme of “Population Change and the Constitution.”

On the 4th, Jocelyn Downie (left), Professor Emeritus at Dalhousie Law School in Canada, is presenting at the Constitutional Court Research Institute symposium. On the right is Eun-sang Lee, Professor at Seoul National University Law School, who served as the designated discussant. [Image source=Legal News]

On this day, Jocelyn Downie, Professor Emeritus at Dalhousie University Law School in Canada, presented on the topic “Medical Assistance in Dying in Canada: A Constitutional Exploration,” introducing the process through which medical assistance in dying (MAiD) was legalized in Canada and identifying implications applicable to Korea.

Canada legalized medical assistance in dying in 2016 for patients with terminal illnesses such as Alzheimer’s disease, and in 2021 expanded the scope to include patients with incurable diseases. From March this year, a temporary provision that prohibited medical assistance in dying for patients with severe mental illnesses such as anorexia and depression expired, making MAiD possible for these patients. However, due to parliamentary opposition citing that the healthcare system is not yet prepared, the application deadline was extended to March 2027.

Professor Downie stated, “Looking back at the process of legalizing medical assistance in dying in Canada, there are many similarities with the current situation in Korea. Despite various differences between the two countries, reflecting on Canada’s legalization process and deriving applicable implications for Korea is a meaningful endeavor.”

She first analyzed that both Canada and Korea enacted related laws following Supreme Court rulings that explicitly recognized the right to refuse life-sustaining treatment.

The Canadian Supreme Court ruled consecutively in 1990, 1992, and 1993 that “Canadians have the legal right to refuse potential life-sustaining treatment, and such refusal must be respected.” Subsequently, in February 2015, the Canadian Supreme Court declared the criminal prohibition on medical assistance in dying unconstitutional, which became a catalyst for the legalization of MAiD.

In Korea, the first Supreme Court full bench ruling (2009Da17417) allowing the discontinuation of meaningless life-sustaining treatment and specifying its criteria was issued in the 2009 “Grandmother Kim case.” Professor Downie explained, “Similarly, after the full bench ruling, Korea enacted the ‘Hospice, Palliative Care and Life-Sustaining Treatment Decision-Making Act for Patients at the End of Life’ legalizing the discontinuation of life-sustaining treatment.” She also mentioned that the Korean Constitutional Court is currently reviewing a constitutional complaint regarding assisted dignified death filed by Lee Myung-sik, a patient with myelitis, concerning a de facto legislative omission.

Both Korea and Canada have similarly formed receptive public opinions regarding medical assistance in dying. According to a 2016 Canadian public opinion survey, 85% of the national population supported the Supreme Court’s ruling declaring the prohibition of medical assistance in dying unconstitutional. In Korea, a 2022 survey showed that 82% of respondents supported medical assistance in dying. Professor Downie noted, “As was the case before MAiD was legalized in Canada, recently in Korea, the number of people traveling to Switzerland, where MAiD is legal, to receive assistance has been increasing.”

Another similarity is that in both Canada and Korea, bills proposed in the national legislature have not yet led to legalization. Attempts to legalize medical assistance in dying in Canada were made several times from 1991 to 2009 but did not result in legislation. In Korea, Assemblyman Ahn Kyu-baek proposed a bill to permit medical assistance in dying in the 21st National Assembly in 2022, but it was discarded. He reintroduced the bill in the 22nd National Assembly in July this year.

Professor Downie explained that the Supreme Court’s unconstitutional rulings played a pivotal role in leading to the legalization of medical assistance in dying in Canada, stating, “Because the judiciary’s decisions are highly trusted, they acted as a catalyst at the legislative stage.”

Meanwhile, at the symposium, Bridget Lewis, Associate Professor at Queensland University of Technology Law School in Australia, presented on “Intergenerational Climate Justice: Discussions in Australia,” with Professor Park Si-won of Kangwon National University Law School participating as a designated discussant. In the session on “Changes in the Concept of Family under the German Constitution,” Hyun Jung Lee, Adjunct Professor at Erlangen-Nuremberg University in Germany, presented, and Professor Jung Moon-sik of Hanyang University Law School served as the designated discussant.

Hong Yoon-ji, Legal Times Reporter

※This article is based on content supplied by Law Times.

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