치료거부권, 죽을 권리 및 존엄사에 대한 재검토 : 헌법적 관점에서

On November 28, 2008, the Seoul Western District Court ordered life-sustaining devices, such as ventilating tubes, to be removed from a 77-year-old female patient, accepting her children's claim that their mother had always opposed keeping people alive on machines. The Seoul Appellate Court and the Supreme Court, respectively, upheld the decisions of the lower courts, setting unprecedented guidelines for such a case. Regarding this case, the domestic media reported that the court granted the death with dignity or right to die for the first time. Some commentators even characterized it as passive (or indirect) euthanasia. However, this article argues that the issue is the right to refuse (life-sustaining) treatment, not the right to die. Also the so called death with dignity or passive euthanasia should not be associated with the exercise of the right to refuse treatment, even if it means the prospect of natural death of a patient. To support this position, this article first analyzes that the right to die has never been recognized as a constitutional right in the U.S. Rather, the relevant cases in the U.S. were actually concerned with the right to refuse treatment. Also the death with dignity generally refers to physician-assisted suicide (PAS) and has nothing to do with a death resulting from the exercise of the right to refuse treatment. In summary, the right to refuse treatment should be recognized as a part of constitutional right of self-determination under the 14th Amendment of the U.S. Constitution and under the Article 10 of the Korean Constitution. The right to refuse treatment should neither be associated with the death with dignity (physician- assisted suicide), nor euthanasia.