Is the 'Sarco' suicide capsule legal in Switzerland?

The news that a so-called suicide capsule passed "legal review" in Switzerland has made waves around the world in recent days.

Developed with the idea of de-medicalizing the dying process, the "Sarco" capsule offered new potential around when and how people can choose to die.

But the purported legality of the device, and who gave the green light, has come into question, along with questions around whether the capsule can legally be used in Switzerland at all.

Here is what we know so far about the Sarco capsule.

WHAT IS SARCO?

Sarco was developed by Philip Nitschke, founder of the voluntary assisted dying organization Exit International, which is headquartered in Australia.

Nitschke described the device in an interview published Dec. 6 by news outlet swissinfo.ch as a 3D-printed capsule that can be towed anywhere and is activated from the inside.

The capsule floods the interior with nitrogen, rapidly reducing oxygen levels before the person inside loses consciousness.

Nitschke says that in an environment where oxygen levels are less than one per cent, death would occur approximately five to 10 minutes after losing consciousness.

In Switzerland, assisted dying is allowed as long as an individual undergoes the process on their own.

The advocacy group Dignitas says that voluntary and involuntary active euthanasia — where someone ends a person's life, whether the individual expressly requests it or not — is prohibited in Switzerland.

Instead, individuals can choose to go through assisted dying, accompanied by professionals, as long as the person administers the lethal medication, or other means, themselves and has full capacity of judgment. Sodium pentobarbital is often used, and Dignitas says each case of accompanied suicide is reported to authorities for investigation.

DID SARCO PASS LEGAL REVIEW?

Much of the hype surrounding Sarco stemmed from the swissinfo.ch interview, during which Nitschke said they sought "senior advice" on its legality in Switzerland and that the capsule "passes legal review" in that country.

However, an investigation by the Swiss news outlet watson questioned where this legal opinion came from, asking Nitschke himself as part of its report.

In an email to CTVNews.ca, Nitschke said they commissioned a legal review by a prominent Swiss academic law and technology professor, since identified by the BBC as Daniel Hürlimann (also spelled Huerlimann) from the University of St. Gallen.

"We felt Swiss law would require no such review, but did it anyway to ensure we had not overlooked any legal requirement," Nitschke said.

"His report was very reassuring. Sarco is not a 'medical device' (or a 'weapon') and as such no formal Swiss approval is required."

He also said Sarco has not been submitted to any Swiss medical review board, "if indeed there is one, and will not be, as Huerlimann has made it clear this is not required, and all due diligence prior to Sarco use has been carried out."

CTVNews.ca sent an email to Hürlimann, asking whether he did offer legal advice on Sarco, but has not received a response yet.

However, Hürlimann told the BBC that his findings suggested the pod "did not constitute a medical device" and would not be covered by the Swiss Therapeutic Products Act.

The BBC also pointed to comments made by a professor out of the University of Zurich, who said that even products that are "not beneficial to health" may be affected by additional safety requirements.

In an email, Alex Josty, a spokesperson for Swissmedic, Switzerland's national authorization and supervisory authority for drugs and medical products, said: "This capsule has absolutely no context to us.

"Swissmedic is responsible for the authorization of medicine. This capsule is not medicine. We have never heard of this capsule before information was published in the media. Maybe the inventor of the capsule can help you? Unfortunately, Swissmedic cannot."

Franziska Egli, a spokesperson from the Swiss Academy of Medical Sciences (SAMS), also told CTVNews.ca in an email that it has taken notice of the Sarco media coverage, "which appears to be misleading."

"There is no 'green light' or legal approval for 'Sarco' in Switzerland. It seems that an expert opinion exists which states that there are no legal obstacles to the introduction of the suicide capsule in Switzerland," Egli said.

"The SAMS was in no way involved in this expert opinion. Since we have not yet discussed this specific topic in depth, we cannot comment on it at this time."

swissinfo.ch has since removed the "passes legal review" reference from its initial story.

WHO ELSE IS WORKING ON SARCO?

Another aspect to watson's inquiry into Sarco involved claims by Nitschke that they have talked to various groups in Switzerland, including those they have worked with before on individual assisted suicide cases, with the aim of providing it for use in the country.

"This would be in collaboration with a local organization. Barring any unforeseen difficulties, we hope to be ready to make Sarco available for use in Switzerland next year," he said in the swissinfo.ch interview.

swissinfo.ch corrected its story after watson reached out to a few Swiss organizations involved in assisted dying advocacy, who either questioned the use of Sarco or said they had no contact with Nitschke.

"We speak to most of the Swiss assisted suicide organizations," Nitschke told CTVNews.ca. "Interest in the use of a Sarco varies."

Although Exit International initially did not want to disclose the group expressing most interest, Nitschke said it has been reported that Pegasos, another Swiss-based organization advocating for voluntary assisted dying, has since confirmed it.

CTVNews.ca sent a message to Pegasos through a contact form on its website, but has not yet received a response.