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Medical Assistance in Dying in Canada: A Constitutional Journey

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헌법재판연구원 (Constitutional Research Institute)|2024.12|헌법재판연구 (Journal of Constitutional Justice)|제11권 제2호|pp. 3-74|DOI 10.35215/jcj.2024.11.2.001

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입법캐나다헌법한국KoreaLegislationCanadaConstitutional lawMedical assistance in dying의료조력사

초록

Medical assistance in dying (MAiD) is legal in Canada. If one looks back on the journey that brought Canada to legalization, there are many similarities to where South Korea finds itself now. Despite the many differences between the two countries, it therefore and nonetheless seems worthwhile to reflect on the Canadian journey and to try to draw lessons for South Korea as i t may serve as an annotated map with helpful insights as to what path might be best to take to get to a desired destination. In this paper, I will therefore first explain the legal status of medical assistance in dying (MAiD) and provide accurate and reliable data on MAiD in Canada. I will then describe the court and legislative paths that brought us from a prohibitive to a permissive regime and what lies ahead. I will conclude with some reflections on what might be taken from the Canadian experience. This is not the ambitious project of demonstrating that the court path is superior to the legislative one in all times and places. Rather, it is the more modest project of illustrating how, for Canada, the court path has been superior to the legislative pathway. Other jurisdictions (like South Korea) are like Canada in some relevant ways so this may be particularly useful as they contemplate which path to take as Canada’s court path and destination can serve as a positive model.

Abstract

Medical assistance in dying (MAiD) is legal in Canada. If one looks back on the journey that brought Canada to legalization, there are many similarities to where South Korea finds itself now. Despite the many differences between the two countries, it therefore and nonetheless seems worthwhile to reflect on the Canadian journey and to try to draw lessons for South Korea as i t may serve as an annotated map with helpful insights as to what path might be best to take to get to a desired destination. In this paper, I will therefore first explain the legal status of medical assistance in dying (MAiD) and provide accurate and reliable data on MAiD in Canada. I will then describe the court and legislative paths that brought us from a prohibitive to a permissive regime and what lies ahead. I will conclude with some reflections on what might be taken from the Canadian experience. This is not the ambitious project of demonstrating that the court path is superior to the legislative one in all times and places. Rather, it is the more modest project of illustrating how, for Canada, the court path has been superior to the legislative pathway. Other jurisdictions (like South Korea) are like Canada in some relevant ways so this may be particularly useful as they contemplate which path to take as Canada’s court path and destination can serve as a positive model.

참고문헌 (71)

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