존엄사 판단의 기초로서 자연과 목적

Abstract

The Supreme Court of Korea leaves open the possibility to withdraw advanced life support from patients who are suffering irrecoverable loss of vital bodily function. And patient’s will and her best interest should be taken into account in determining whether permission of its withdrawal will be given or not. But this paper shows that the judicial decision making by the Supreme Court is deeply intertwined with natural and purposive approaches towards the death with dignity, which play the pivotal role in constituting the rationale for the decision. The Supreme Court tacitly employs the counterfactual concept of natural baseline in order to narrow the scope of eligible candidates for the death with dignity. Therefore a physician cannot always withhold or withdraw ALS, even though a patient suffering terminal illness has given a voluntary informed consent. Human dignity and worth of patients is regarded by the Supreme Court as the ultimate reason on the basis of which it can complete legal argumentation, since self-determination of patients suffering irrecoverable loss of vital bodily function alone cannot close debate over the permissibility of the as-a-matter-of-fact death with dignity and, therefore, the reason or purpose for which patients wish to end their own lives should also be considered.