Euthanasia

Among the issues related to the right to life, euthanasia is perhaps the least trivial one. This has to do with the fact that progress in the medical science allows it nowadays not only to heal many diseases, but also to sustain alive (for at times a considerable period) people who are terminally ill or who have fallen into a coma. At least in societies with a high standard of healthcare, death is today typically not a sudden event, but a protracted process that takes place under the surveillance of, and is controlled by, doctors, nurses, and (possibly) the family of the moribund person.

Another problem is that, despite all medical progress, there is an increasing shortage of resources when it comes to providing care for sick persons who cannot care for themselves. Many families find it difficult to cope with the responsibility of caring for a sickly elderly parent or grandparent, who needs to be washed, dressed, fed, and led to the toilet. In aging societies, the number of those who need care increases, whereas the number of those who can provide it diminishes. According to some statistics, a person’s last year usually is the most expensive one in terms of health care needs, often accounting for more than 50% of the healthcare expenses incurred during the entire life span.

At the same time, there is in many parts of society a mindset that does not accept pain and suffering, to the effect that many consider it legitimate, and even charitable, to eliminate suffering at the cost of eliminating the person who suffers. In some cases, such considerations seem to be inspired by a genuine (if misguided) sentiment of compassion for the sick person, whereas in other cases this seeming compassion may in fact conceal the egoism or self-interest of those who feel overwhelmed by their responsibility to provide care, and who feel they cannot continue sacrificing their time and financial resources in the service of a sick family member with whom they maybe cannot even communicate any more.

All this confronts the present generation with an enormous moral dilemma for which there is no real precedent in history. Yet it is clear that this dilemma cannot be solved simply by killing the sick, the unproductive, and those who have no money left to pay for their health care.

Indeed, the moral imperative not to kill anyone forecloses even the possibility of killing those who say they want to be killed. For who can be certain that such a statement expresses a genuine desire, rather than a cry for help that could better be answered by more love and better care? It is true that many people nowadays say that they would rather die quickly and painlessly than going through a protracted process of deceasing: but does that actually mean that, when the time has come, they want to be killed? Does such a statement, which has been made maybe years ago, or in a moment of depression, provide legitimacy to such an act when the person concerned has lost conscience and cannot be asked anymore? Do such statements, when they are made by people that depend on the care provided by others, not rather reflect a will not to be a burden to those others rather than a will to die? Is there not a risk that people could feel pressured, or indeed be pressured into making such statements?

Some Guiding Principles

The list of dilemmas is long, and it is not possible here to discuss each of them. We believe that the issue is best dealt with through a set of clear principles:

• It is always wrong to kill a human being, even if it is likely to die soon.

• This applies also in situations where a person asks to be killed. On the one hand, there always will remain uncertainty whether such a request expresses a genuine will, or whether it is due to pressure, a state of momentous depression, or irrational fear. On the other hand, no one has the right to impose on another person the task of killing.

• In particular, if doctors or nurses were to accommodate such requests, the deontology of their profession would be undermined. The task of doctors and nurses is to cure, not to kill.

• There is a difference between (1) killing a person and (2) abstaining from actions that, while not being apt to heal the patient, might prolong his life. It is legitimate for a terminally ill person not to want such life-prolonging treatments. If it expresses such a will, that should be respected. Even where the patient is no more able to express a will, doctors should be careful to avoid the useless prolongation of suffering.

• It is legitimate to provide to a terminally ill patient palliative treatments, even if such treatments may have the collateral effect of shortening the patient’s life. “Collateral” means here that this must not be the purpose of the measure, but a side-effect that, albeit not desired, is accepted in exchange for the pain-easing effect. This does therefore not legitimize to directly kill a person.

• In any case, it is not legitimate to withhold ordinary care (such as feeding the patient, or providing him with oxygen) in order to cause the patient’s death.

The Legislation on Euthanasia in Various Countries

Although there is a discussion on the possible legalization of euthanasia going on in nearly all countries of the West, very few have actually legalized it. The first country to do so were the Netherlands, followed by Belgium and Luxemburg. In the US, the states of Oregon and Washington have laws that legalize euthanasia. Those laws exempt doctors who kill their patients at their request, or who assist them in killing themselves, from prosecution.

Those who proposed and enacted these laws have always argued that the purpose was to bring a frequent but hidden practice out of the legal grey zone and to provide legal certainty for all involved. They also argued that euthanasia would remain the solution of the last resort, and that it would be subject to restrictive rules and to the strictest controls. Those warning against these laws have, by contrast, argued that adopting them would mean to enter on a slippery slope and that soon the scope for euthanasia would be gradually widened, until the situation finally would be out of control.

While the statistics may be a subject of debate, there can be no doubt with regard to a tendency in countries where euthanasia has been introduced, to gradually widen its scope. In the Netherlands, for example, euthanasia for children under twelve years is in principle prohibited, but doctors nevertheless provide it. The Belgian law goes as far as legalizing euthanasia for handicapped persons as well as for new-born children. According to reports, a high proportion of euthanasia cases there is actually “without request or consent”. There appears to be a considerable rate of underreporting. The latest development is that in Belgium (healthy) prisoners serving life sentences have requested (and obtained) “euthanasia”, thus turning it into a “voluntary death penalty”.

International Law

Supporters of euthanasia argue that human dignity includes the right to be master of one’s own death and that, therefore, euthanasia should be considered a human right. There is, however, no international human rights convention in which a “right to euthanasia” is explicitly recognized. Attempts to obtain, through strategic litigation, a declaration from the ECtHR that a “right to euthanasia” is implicit in Article 8 ECHR (Right to respect for private life) have  so far been unsuccessful (case of Haas v. Switzerland).

No attempts have so far been made to ascertain whether the obligation for States to protect the right to life includes an obligation to prohibit euthanasia.

Advance Health Care Directives

Some consider that the use of “advance health care directives”, and the adoption of laws that provide them with binding effects, might constitute a solution for the problem. The idea is to make the patient’s own will the supreme criterion for what is going to happen with him.

An advance health care directive, also known as “living will”, is a set of written instructions through which one may specify what actions should be taken for one’s health in case one were no longer able to make decisions due to illness or incapacity. The instruction may also appoint someone, usually called an agent, to make such decisions on their behalf. In that way, the will (or the suspected will) of the patient provide legitimacy to a doctor’s decision to continue or discontinue treatment. The doctor may, as a result, not feel pressed to maintain all life-prolonging measures until the very end.

While the intention seems understandable, the idea of legally regulating such advance health care directives, and to provide them with binding effect, merits to be met with the highest degree of scepticism. Advance directives are obviously not needed for situations in which the patient is still able to decide for himself, but it remains questionable whether, when making such a directive, he is actually capable of knowing what his will is likely to be in a situation he neither could foresee nor imagine. Indeed, the problem is that average persons who are no medical experts will hardly be capable of foreseeing all possible situations that might befall them, nor of assessing the usefulness or uselessness of any given medical treatment in such a situation. There are strong reasons to think, therefore, that the invitation to draft an advance health care directive is, in most cases, asking too much from the patient, and there is an evident risk for him to make choices that, based on a misjudgement, might cost him his life.

There is furthermore the risk that such advance directives might create some perverse liability risks for doctors who save the lives of people who then say they would have preferred to die. Let us for example consider the case of a young man who, having stipulated in his advance will that in the case of illness or accident he would prefer to die quickly rather than being dependent on care for the rest of his life, has a crash with his motorcycle. Thanks to the prompt intervention by an emergency doctor his live is saved, but unfortunately his spinal cord is injured with the result that he is paraplegic and has to spend the rest of his lifetime in a wheelchair. Can he sue the emergency doctor for “wrongful life”, saying that he would prefer to be dead? Will the doctor have to take in charge all the expenses caused by the paraplegics continued existence?