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KMID : 1011120130070010083
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Bioethics Policy Studies
2013 Volume.7 No. 1 p.83 ~ p.106
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A Study on Possibility of Right of ‘Harm to Self’ and Justification of Paternalistic Restriction
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Rhie Yuh-Kyoung
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Abstract
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Right of ‘harm to self’ as right of freedom originating from constitutional human dignity or Fourteenth·Ninth Amendment conflicts with paternalistic intervention by state. Paternalism is behavior, by state, which limits person’s liberty or autonomy for one’s own good. Paternalism can also imply that the behavior is against or regardless of the will of a person, or also that the behavior expresses an attitude of superiority. This paternalistic restriction causes infringement of personal autonomy right which is enumerable and inviolable as long as it does not violate others’ rights.
With the development of modern medical science, in addition to died or fully recovered, patients retain a third alternative: artificially lifeprolonging without restoration of health. Korean and American Supreme Courts permit euthanasia in limited circumstances: passive euthanasia. However, euthanasia is substantially private and not harmful to others or society. Therefore, American courts cite state’s interest as the damage from euthanasia. This attitude can be apprehended that ‘harm to self’ is a victimless act and state’s paternalistic intervention should be conducted in accordance with the Principle of Proportionality which is a solution for restriction of fundamental rights. In order to guarantee one’s autonomy and dignity, active euthanasia need to be reviewed as right of ‘harm to self’ with regard to the Principle of Proportionality.
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KEYWORD
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right of ‘harm to self’, paternalism, personal autonomy rights, Principle of Proportionality, euthanasia, restriction of fundamental rights, collision of fundamental rights
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