Право. Международное право

Мухамедия Д.А.

Казахский Гуманитарно-Юридический Университет, Казахстан

Legal regulation of euthanasia in Kazakhstan

For it makes a great deal of difference whether a man is lengthening his life or his death. But if the body is useless for service, why should one not free the struggling soul?

What is the legal side of this statement of the Roman philosopher Seneca? The duty towards the patient to alleviate hopeless suffering and the duty towards the law to preserve the patient's life.These two contradictory to each other statements explain the extraordinary interest in the issue of euthanasia, which with all the responsibility can be called one of the most controversial and to date unsolved medical and deontological, religious, ethical and legal issues of our time. Legal prohibitions and permission are e primarily basic in this struggle.

In recent years, medical institutions have accumulated a significant number of patients, the physiological condition which is diagnosed as an intermediate between life and death.
But thanks to the new knowledge they can be supported in a living state for a long time. In such situations raises a number of moral and legal problems, especially with the fact that euthanasia is practiced, but its latent nature does not allow to give a legal assessment.
It is necessary to identify a number of aspects that would mean the importance of this issue in the world of some countries. The main legal document is WMA Declaration on Euthanasia, adopted by the 39^th World Medical Assembly, Madrid, Spain, October 1987 which defines euthanasia as “the act of deliberately ending the life of a patient, even at the patient's own request or at the request of close relatives, is unethical. This does not prevent the physician from respecting the desire of a patient to allow the natural process of death to follow its course in the terminal phase of sickness” [2]. In the above statement, the term "terminal phase" is used to mean a significant loss of function of the human body.
Dutch law provides the following definition: "Euthanasia is any action aimed at putting end of life of an individual, in response to its own request, made by disinterested person or termination of life by a doctor at the request of a patient"[1]. The main argument in favor of euthanasia in Dutch has always been the need for more patient autonomy — that patients have the right to make their own end-of-life decisions.
In practice, there are two types of euthanasia: passive and active. The main difference between them lies in the fact that passive euthanasia ceases helping to extend the life by medical equipment, thereby causing an acceleration of natural death, in the case of active euthanasia, it operates according to the principle of "filled syringe"[4].
The first country in the world which legalized active euthanasia became the Netherlands. In April 2002, the Netherlands became the first country to legalise euthanasia and assisted suicide. It imposed a strict set of conditions: 1) the patient's suffering is unbearable with no prospect of improvement; 2) the patient's request for euthanasia must be voluntary and persist over; 3) the patient must be fully aware of his/her condition, prospects and options; 4) there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above; 5) There must be no other reasonable solutions to the problem; 6) Only a doctor can euthanize a patient [3].
In the same year came into effect a similar law in Belgium allowing medical assistance to the death of terminally ill patients. The main eligibility criteria is to require euthanasia patient was terminally ill, adult, and also the death request must be voluntary in writing. And in this case, the doctor will not be charged with a crime. In addition, the country set up a control mechanism such as Committee on Euthanasia.
After the Netherlands and Belgium, the third country to legalize euthanasia became Luxembourg. According to this law, against the doctors who assisted-suicide death cannot apply criminal penalties, and institute civil proceedings in court. There must be two doctors involved in the euthanasia and a commission of experts. The adoption of this law was the reason for amending the Constitution [5].
In California there was a strong public reaction due to the adoption of the law "On the right of a man to death," in which terminally ill people can apply for a document expressing its desire to disable resuscitative equipment. However, the law still nobody applied, as one of the conditions for the exercise of euthanasia should be psychiatric report on sanity of the patient. But the American Psychiatric Association does not allow its members to participate in such procedures and forbids its members to participate in euthanasia.
In November 2003, the Knesset approved a bill, according to every adult in Israel has the right to sign a medical form of euthanasia in case he would be incurably and terminally ill and is not able to instruct doctors not to lengthening life by artificial means [5]. The law stipulates that it is not a termination of care, but about the refusal to extend the work of devices of artificial life. The foregoing provisions enable us to give an overview of the legal regulation of euthanasia in the world.
In Kazakhstan, as in the former Soviet Union countries, any form of euthanasia is prohibited.
There is no direct mention of euthanasia in the criminal law of the Republic of, but it is available in the Code "On people's health and the health care system" of the Republic of Kazakhstan, 2009. Chapter 23 regulates certain relations in the field of public health, and Article 141 of the Code prohibits euthanasia. [6]
According with the Article 21 of the draft Law "On protection of public health in the Republic of Kazakhstan" legislator gives the following definition to this issue : "life-sustaining equipment can be disabled only in the cases of the biological death or irreversible loss of all brain (brain death) in order to be approved by the competent authority in the field of health. Implementation of euthanasia is prohibited ", but as above mentioned code is not in force, the legal regulation of the implementation of euthanasia is reduced mainly to the Code" On public health and health care system "[7].
Another regulator of the ban of euthanasia is the Hippocratic Oath, which should bear all the medical staff in the country, contrary to the traditional realization of the idea of euthanasia. Oath states: "... I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect...." [8].
A person who induces the patient to implement euthanasia is criminally responsible in accordance with the legislation of the Republic of Kazakhstan, as the Criminal Code of Kazakhstan does not contain much of an offense related to the implementation or inducement to euthanasia, in other words there is no punishment for health care workers, committed an act of euthanasia . However, as a result of consequence of euthanasia is death of the patient, which allows to apply in this situation the article 99. Murder [9]. The current Criminal Code of Kazakhstan murder provided several articles, begins with article 99 of the Criminal Code of the Republic of Kazakhstan, but none of them has no indication to commit such an act with the consent of the victim.
While acknowledging the fact that in a pluralistic society there would never be consensus on matters such as abortion and euthanasia, but modern society, taking the practice of States may come to regulate this issue at the legislative level.

REFERENCES:

1. Euthanasia: law and practice in The Netherlands Sjef Gevers Health Law Section, University of Amsterdam, Amsterdam, The Netherlands

2. Присяжная, Е. А.
Легализация эвтаназии в зарубежных странах [Текст] /Е. А. Присяжная.
//Научный вестник Омской академии МВД России.
-2009. - № 4. - С. 63 – 66

3. RAFT FOR CONSULTATION “End of Life Choice Bill”

4. КОДЕКС РЕСПУБЛИКИ КАЗАХСТАН
О ЗДОРОВЬЕ НАРОДА И СИСТЕМЕ ЗДРАВООХРАНЕНИЯ (с изменениями и дополнениями по состоянию на 10.01.2015 г.)

5. R. U. Akhmetshin, E. V. Kim FOREIGN EXPERIENCE OF LEGALIZATION OF EUTHANASIA

6. http://www.ves.org.nz/articles

7. http://www.patientsrightscouncil.org/site/holland-background/

8. Закон Республики Казахстан от 19.05.97 N 111-1
"ОБ ОХРАНЕ ЗДОРОВЬЯ ГРАЖДАН В РЕСПУБЛИКЕ КАЗАХСТАН

9. УГОЛОВНЫЙ КОДЕКС РЕСПУБЛИКИ КАЗАХСТАН от 1 января 2015 года