Should Active Euthanasia be Legalized?
The Case Against Legalization
Doran says:
Although I think voluntary active
euthanasia (VAE) and non-voluntary
active euthanasia (NAE) ought to be
legalized, I believe that a very compelling
case can be made on the opposite side.
Opponents of legalizing active euthanasia
maintain that, even if voluntary and nonvoluntary active euthanasia are morally
permissible, it is too likely to be abused
and misused, and that society is better off
if it does not tolerate this kind of killing.
Background
At present, all forms of active euthanasia are
criminal offenses in Canada and the United States.
Oregon and Washington, however, allow for PAS
(Physician Assisted Suicide) under strict guidelines.
Voluntary active euthanasia is legal in the
Netherlands, Belgium and Luxembourg.
Switzerland permits assisted suicide but only if it is
performed by non-physicians.
" No person is entitled to consent to have death
inflicted on him, and such consent does not affect
the criminal responsibility of any person by whom
death may be inflicted on the person by whom
consent is given.”
Criminal Code of Canada, section 14.
Warren says:
These abuses and misuses are difficult to categorize, though they generally involve wrongful
killing – where people are killed in the name of euthanasia, when, in fact they ought not to have
been killed, either because their lives were still a benefit to them, or because euthanasia was in
some way coercively imposed upon them.
For instance, the sick are already vulnerable, and likely to be (understandably) depressed. They
may see their lives as hopeless, when in fact their lives are not hopeless. If active euthanasia
were an option, some patients may be expected to request it simply because they are too
depressed to struggle to become better.
Patrick says:
You two are speaking of kind of slippery
slope argument against legalizing AE. The
argument, in a nutshell, seems to be this: If
VAE and NAE were legalized, it would lead
to undesirable consequences. Since we
want to avoid these bad consequences, we
should not legalize VAE and NAE. The
“undesirable consequences” include cases of
unjustified killings, but there other negative
effects that proponents of this argument are
concerned about.
Background
“During the summer of 1999, twenty-eight
interviews with some of the leading authorities on
euthanasia policy were conducted in the
Netherlands. They were asked about cases of nonvoluntary (when patients are incompetent) and
involuntary euthanasia (when patients are
competent and made no request to die). This study
reports the main findings, showing that most
respondents are quite complacent with regard to
breaches of the guideline that require the patient's
consent as a prerequisite to performance of
euthanasia.”
Raphael Cohen-Almagor, “Non-voluntary and
involuntary euthanasia in the Netherlands: Dutch
perspectives,” Issues in Law & Medicine, April 1
2003: Netherlands.
http://www.allbusiness.com/legal/3495558-1.html
Warren says:
Yes, that’s right. An additional worry about
legalizing AE stems from the fact that our
health care system is stressed and underfunded. There are great shortages of medical resources
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Smolkin, Bourgeois & Findler: Debating Health Care Ethics, 1st Canadian Edition
(machines and personnel). Doctors and nurses are frequently stretched to the breaking point, and
there are long lines of needy patients waiting for care. Now if active euthanasia were an option,
opponents of legalizing may claim, then health care professionals might find themselves
recommending it to their sickest patients – not out of malice – but because they recognize that
there is little to be done for them, and because there are other patients who need care who could
benefit more from available resources. Thus, they could well imagine doctors deciding in favour
of active euthanasia on a non-competent patient whose life is severely restricted but still worth
living, or they might imagine a physician raising the issue of active euthanasia to a patient who is
already vulnerable, and who simply yields to the authority of the physician. Here then active
euthanasia would degenerate into unjust killing. Further, if this were to come to pass, the great
and important trust that patients tend to have for their doctors and nurses would begin to
seriously and dramatically erode, and that too would be a moral disaster.
Doran says:
Now it should be clear that the opponent to lawful active euthanasia need not be saying that there
are no cases of legitimate, morally justified cases of active euthanasia; instead, the opponent is
saying that even if this is the case, we should not allow for active euthanasia since it will lead to
morally unjustified acts of killing. Here the opposition to active euthanasia parallels some
people’s opposition to the death penalty. The claim is that though there could be cases where the
death penalty is deserved, it is almost certainly the case that if it is legalized there will be cases
where the death penalty is meted out on people that should not be killed. And given the horrible
moral costs of wrongful killing, the death
Background
penalty should not be practiced on anyone.
And just as the opponent to the death
penalty does not and should not suggest that
all convicted felons be freed, the opponent
of lawful active euthanasia should not
suggest that nothing be done to help
alleviate the conditions of the very seriously
ill. Instead, the opponent of active
euthanasia should suggest the moral
importance of having excellent comfort care
available to the dying. So that those whose
conditions are truly hopeless will be able to
receive as much comfort as possible,
including access to hospice, dying at home,
and access to needed amounts of pain
medication. This option won’t be perfect,
since some who really desire and really need
active euthanasia won’t be able to lawfully
receive it, but at least they will not be left to
suffer horribly.
Patrick says:
Even if we could eliminate the kinds of
“On 6 May 1997, in Halifax, Dr. Nancy Morrison
was arrested on a charge of first-degree murder in
the death of a terminally ill cancer patient… All
possible treatment methods were unsuccessful. By 9
November 1996, there was no hope of recovery.
The patient’s family was consulted and, consistent
with normal and usual procedures in such
circumstances, it was agreed by all those present
that active life support would be discontinued.
When Mr. Mills was taken off the ventilator, pain
control drugs were administered and increased
several times. Mr. Mills remained in substantial
distress and pain, gasping for air. One expert
witness testified that the level of drugs given to Mr.
Mills was in the lethal range and outside of his
experience. With Mr. Mills in continuing distress,
Dr. Morrison administered first nitroglycerine and
then potassium chloride by syringe. Potassium
chloride, administered as it was to Mr. Mills, will
stop the heart.
In February 1998, Judge Hughes Randall
declined to commit Dr. Morrison to stand trial.”
Mollie Dunsmuir, Marlisa Tiedemann, “Euthanasia
and Assisted Suicide in Canada,” Library of
Parliament: Law and Government Division, Revised
23 February 2006.
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Smolkin, Bourgeois & Findler: Debating Health Care Ethics, 1st Canadian Edition
undesirable consequences we’ve been discussing, there are other negative consequences that we
should consider. If VAE were a legal option, then patients who choose not to exercise this
option would face the burden of having to justify this choice. They can no longer simply
continue to exist by default, as they can now do under the present laws which forbid VAE. This
burden will be especially heavy in cases where continued existence causes financial or other
difficulties for families and friends. After all, the efforts to care for the dying can be tremendous
– both emotionally and financially – and a patient’s family and friends might expect that they
need not sacrifice so much, if their loved ones would just simply request an end to their lives. In
cases where the burden to justify one’s continued existence becomes especially heavy, choosing
to die may become the best option. The patient would have been better off, however, had he not
had the option to die in the first place.1
Warren says:
That’s an interesting objection to VAE. We usually think that increasing our options can’t harm
us, and may actually help us. So giving people a legal right to die would benefit those who want
to die. And those who do not want to die can simply choose not to exercise this option. But this
objection is attempting to show things are not quite that simple: those who would rather not die
may be harmed by having a legal right to die.
The Case for Legalization
Patrick says:
Well, we’ve identified several serious
concerns about the consequences of
legalizing VAE and NAE. The opponent of
lawful active euthanasia has advanced
compelling reasons to keep active euthanasia
illegal. So, the question is whether or not
these arguments are sound.
Background
“In November 1990, the Dutch Ministry of Justice
and the Royal Dutch Medical Association set out
Guidelines for the performance of euthanasia based
on the criteria established in court decisions
relating to the conditions under which a doctor can
successfully invoke the defense of necessity. The
substantive requirements are as follows:
1. The request for euthanasia or physician-assisted
suicide must be made by the patient and must be
free and voluntary.
2. The patient's request must be well considered,
durable and consistent.
Warren says:
When faced with such objections, one needs
The patient's situation must entail unbearable
to consider whether the alleged costs of
suffering with no prospect of improvement and no
practicing active euthanasia can be
alternative to end the suffering. The patient need
not be terminally ill to satisfy this requirement and
adequately controlled. As we have seen, the
the suffering need not necessarily be physical.”
critic of practicing active euthanasia points to
a number of likely abuses and misuses, but
Raphael Cohen-Almagor, “Non-voluntary and
one wonders whether or not those costs can
involuntary euthanasia in the Netherlands: Dutch
be avoided. For instance, there are a number
perspectives,” Issues in Law & Medicine, April 1
2003: Netherlands.
of measures that can be taken to reduce the
http://www.allbusiness.com/legal/3495558-1.html
risk that patients will request active
euthanasia either because they are depressed or because they have been pressured by family
members, doctors, or nurses. We could insist, for instance, that all who consent to active
euthanasia meet with a psychological counselor to ensure that their request is uncoerced or not
1
See David J. Velleman’s “Against the Right to Die”, Journal of Medicine and Philosophy, 1992 17(6): 665-681.
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unduly affected by outside pressures; further, a brief waiting period may be instituted to allow a
person the change to change his or her mind; also, we could require that those who request active
euthanasia be informed of their treatment alternatives which should include good comfort care.
Such measures would go a long way to reducing the chance that a patient is pressured into
requesting active euthanasia.
The fear that doctors will become killers so that they can reduce their stress is also overblown.
Most physicians are already in a position to kill people often without getting caught. We trust
them now, and we could trust them with decriminalization in place as well.
Doran says:
Similarly, concerns about health care workers wrongly judging that a person’s life is no longer a
benefit can be dealt with by a variety of safeguards: for instance, there could be mandatory 2nd
opinions and mandatory review by a hospital ethics board of all proposed cases of active
euthanasia; also, there should be strict guidelines specifying the conditions that must obtain in
order to receive active euthanasia; plus, there should be serious penalties on all those who shortcircuit the required procedures for practicing active euthanasia. The implementation of such
checks and balances should go a long way to protecting the interests of those who do not need or
do not consent to active euthanasia.
Warren says:
Even at that, opponents to lawful active euthanasia will insist that these guidelines and
safeguards will not be perfect, and mistakes will still happen, with the result that people are
killed in the name of euthanasia that ought not to have been killed. And this, they may insist, is
an unacceptable cost to pay.
Patrick says:
The opponents of lawful active euthanasia are correct to insist that the safeguards will not be
perfect; however, they err in thinking that this fact constitutes a conclusive objection to
practicing active euthanasia. Notice that few, if any, social practices are free from abuse. Errors
are made when it comes to sentencing people to jail, even when there are all kinds of safeguards
built into the legal system, but we do not (and should not) say that jails should be abolished.
Driving automobiles results in thousands of deaths per year, despite the fact that there are speed
limits, traffic rules, police officers, etc.; however, we do not conclude from this that automobiles
should be banned. Similarly, mistakes happen when performing surgery, and people tragically
are killed as a result, but we do not ban surgery, etc. So just pointing to the likelihood that errors
will still arise if active euthanasia is practiced does not show that it should not be allowed.
In the end, we have to judge whether or not active euthanasia, with safeguards, will support
virtuous treatment of patients or serve to promote vice and error. Against the risk of the
occasional abuse or mistake, and against the harm that a legal right to die might inflict on those
who prefer to exist by default, there must be weighed the increased opportunity for the virtue of
beneficence, compassion, and charity in the correct use of active euthanasia. This includes the
relief of suffering as well as the respect for autonomy of the seriously ill patient.
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Smolkin, Bourgeois & Findler: Debating Health Care Ethics, 1st Canadian Edition
Doran says:
I agree Patrick. I would just add the following observation. Criminalizing active euthanasia is
also a policy that has significant costs. It prevents people from obtaining active euthanasia when
they need it and want it. Recall Maggie’s fate. Also, just because it is unlawful to practice
active euthanasia, does not mean it does
Background
not happen. Instead, it is done
“The reality of modern medicine is that doctors do
“underground”, without regulation and
practise passive euthanasia; not all of them, but rare is
formal review. This could be more of a
the doctor that has not, at the request of the patient, the
danger to the gravely ill than active
patient's family, or on his or her own accord, decided to
euthanasia if it were lawful and regulated.
discontinue life-support. Studies also show that many
doctors have acquiesced to life-ending drug doses in
Warren says:
cases of advanced terminal conditions. But try finding one
to admit it.”
In the end, it is not entirely clear which
side has the stronger argument, those who
Lloyd Duhaime, “Euthanasia in Canada,”
oppose the legalization of active
http://www.duhaime.org/LegalResources/CriminalLaw/ta
euthanasia, or those who support its
bid/340/articleType/ArticleView/articleId/100/Euthanasia
legalization, provided strict safeguards are
-in-Canada.aspx Published: Monday, May 07, 2007 .
set up. In the final analysis, I lean toward
the side of legalization with appropriate safeguards, including the availability of first-rate
hospice care. I am particularly persuaded by your point, Doran, that our interests are best served
by a visible and regulated practice rather than an under-the-counter procedure.
Patrick says:
I agree with you, Warren. All things considered, it is reasonable to suppose that many more
people will benefit than be harmed from a law that permits VAE and NAE. For that reason, I
believe that these forms of euthanasia ought to be legally permissible.
Discussion
Doran, Warren and Patrick appear to provide a consequentialist justification for
legalizing active euthanasia (with safeguards). Do you agree that this is the
appropriate sort of justification for matters of social policy?
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Smolkin, Bourgeois & Findler: Debating Health Care Ethics, 1st Canadian Edition
Recommended Readings:
Dworkin, Ronald, et al. “Suicide: The Philosophers' Brief,” The New York Review of Books,
Volume 44, Number 5, March 27, 1997. Available at http://www.nybooks.com/articles/1237
Foot, Philippa, “Euthanasia,” Philosophy & Public Affairs (Winter 1977), 6(2): 85-112.
Pabst-Battin, Margaret, The Least Worst Death: Essays in Bioethics on the End of Life, Oxford
University Press, 1994.
Rachels, James The End of Life Euthanasia and Morality (Oxford University Press, 1986).
Available at http://www.jamesrachels.org/EoL.htm
Singer, Peter “Taking Life: Humans,” excerpted from Practical Ethics, 2nd edition, Cambridge,
1993, pp. 175-217. Available at: http://www.utilitarian.net/singer/by/1993----.htm
Velleman, J. David, “Against the Right to Die”, Journal of Medicine and Philosophy, 1992
17(6): 665-681. Unpublished revision, August 13, 2007, available at SSRN:
http://ssrn.com/abstract=1006992
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Smolkin, Bourgeois & Findler: Debating Health Care Ethics, 1st Canadian Edition