In their decision of March 2, 2017 the Federal Constitutional Court discovered that under exceptional extreme circumstances, seriously ill people have the right to means of suicide. Thereby the Court set aside decisions of previous legal authorities which had rejected the complaint of a husband whose wife, paralysed from her neck down, had made use of assisted suicide in Switzerland in 2005. In 2004, despite her clear and desire of suicide and the immense and degrading pain, she was not given permission by the Federal Institute for Drugs and Medical devices to purchase a dose of the fatal injection pentobarbital for the purpose of suicide. The husband had filed a complaint against this decision and the Federal Constitutional Court justified the case.  

In their justification the court refers to the general right of personality, documented in the German Basic Law. According to the court, it also contains “the right of a critically and incurably ill patient to decide how and at what stage his life should be ended.” Even though, as stated in the legislation on narcotics, a fundamental prohibition of the purchase of lethal drugs still applies, the right to self-determination allows exceptions for incur¬ably critically ill people under extreme circumstances and in cases of a lack of treatment alternatives. The crucial point was that she, “due to her unbearable living situation, had decided freely and seriously to end her life”.

The judgement had caused criticism on behalf of the German Foundation for patient protection (Deutsche Stiftung Patientenschutz). According to them, the criterion of an unbearable living situa-tion is not sufficiently clear determined and undermines the efforts to prevent suicide. Subsequent to the judgement, numerous seriously ill people have attempted to be given the permission by the Federal Institute for Drugs and Medical devices to purchase fatal drugs. 

The former justice of the Federal Constitutional Court (Bundesverfassungsgericht) Udo di Fabio declares the judgement of the Federal Administrative Court to be “untenable under constitutional law” in a legal report issued on behalf of the BfArM. There he finds that, although the legal order of the German constitution wants to be an order for the development and evolvement of the individual, it cannot and should not leave its core values at the disposition of said individual. Di Fabio states: “The free individual decision has an extraordinary weight in a society, which puts the individual in focus of its legal order. This also encompasses the right to suicide. However, personal self-determination does neither entail an absolute claim of validity, nor a resulting duty to state participation in a highly personal decision.” Should the legislator see the danger of a soon developing routine of applying lethal substances or even a societal expectation of suicide and, following, a future threat to dignity by state aid to suicide, he or she is justified in withholding the lethal medication. Di Fabio adds that the BfArM is, in regards to staff and organisation, not equipped to verify with all due diligence whether an existential emergency situation according to the criteria of the Federal Administrative Court is actually given in any particular case. It could not, however, decide in favour of the applicant in case of doubt because of the aforementioned constitutional concerns. This is why di Fabio advises the Federal Minister of Health, to whom the BfArM is subordinate, to issue a non-application decree. This happened under Federal Minister of Health Jens Spahn (CDU) in July, 2018. In a letter to the president of the BfArM, Karl Broich, the Secretary of State for Health Lutz Stroppe orders the BfArM to deny any requests for medication intended for suicide.