Excerpted from Practical Ethics, 2nd edition, Cambridge, 1993, pp. 175-217
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In dealing with an objection to the view of abortion presented in Chapter 6, we have already looked beyond abortion to infanticide. In so doing we will have confirmed the suspicion of supporters of the sanctity of human life that once abortion is accepted, euthanasia lurks around the next comer - and for them, euthanasia is an unequivocal evil. It has, they point out, been rejected by doctors since the fifth century B.C., when physicians first took the Oath of Hippocrates and swore 'to give no deadly medicine to anyone if asked, nor suggest any such counsel'. Moreover, they argue, the Nazi extermination programme is a recent and terrible example of what can happen once we give the state the power to MI innocent human beings. I do not deny that if one accepts abortion on the grounds provided in Chapter 6, the case for killing other human beings, in certain circumstances, is strong. As I shall try to show in this chapter, however, this is not something to be regarded with horror, and the use of the Nazi analogy is utterly misleading. On the contrary, once we abandon those doctrines about the sanctity of human life that - as we saw in Chapter 4 - collapse as soon as they are questioned, it is the refusal to accept killing that, in some cases, is horrific.
'Euthanasia' means, according to the
dictionary, 'a gentle and easy death', but it is now used to refer to the
killing of those who are incurably ill and in great pain or distress, for the
sake of those killed, and in order to spare them further suffering or distress.
This is the main topic of this chapter. I shall also consider, however, some
cases in which, though killing is not contrary to the wishes of the human who is
killed, it is also not carried out specifically for the sake of that being. As
we shall see, some cases involving newborn infants fall into this category. Such
cases may not be 'euthanasia' within the strict meaning of the term, but they
can usefully be included within the same general discussion, as long as we are
clear about the relevant differences.
Within the usual definition of euthanasia
there are three different types, each of which raises distinctive ethical
issues. it will help our discussion if we begin by setting out this threefold
distinction and then assess the justifiability of each type.
TYPES OF EUTHANASIA
Voluntary Euthanasia
Most of the groups currently campaigning
for changes in the law to allow euthanasia are campaigning for voluntary
euthanasia - that is, euthanasia carried out at the request of the person
killed.
Sometimes voluntary euthanasia is scarcely
distinguishable from assisted suicide. In Jean's Way, Derek Humphry has told how
his wife Jean, when dying of cancer, asked him to provide her with the means to
end her life swiftly and without pain. They had seen the situation coming and
discussed it beforehand. Derek obtained some tablets and gave them to Jean, who
took them and died soon afterwards.
Dr Jack Kevorkian, a Michigan pathologist,
went one step further when he built a 'suicide machine' to help terminally ill
people commit suicide. His machine consisted of a metal pole with three
different bottles attached to a tube of the kind used to provide an intravenous
drip. The doctor inserts the tube in the patient's vein, but at this stage only
a harmless saline solution can pass through it. The patient may then flip a
switch, which will allow a coma-inducing drug to come through the tube; this is
automatically followed by a lethal drug contained in the third bottle. Dr
Kevorkian announced that he was pre- pared to make the machine available to any
terminally ill patient who wished to use it. (Assisting suicide is not against
the law in Michigan.) In June 1990, Janet Adkins, who was suffering from
Alzheimer's disease, but still competent to make the decision to end her life,
contacted Dr Kevorkian and told him of her wish to die, rather than go through
the slow and progressive deterioration that the disease involves. Dr Kevorkian
was in attendance while she made use of his machine, and then re- ported Janet
Adkins's death to the police. He was subsequently charged with murder, but the
judge refused to allow the charge to proceed to trial, on the grounds that Janet
Adkins had caused her own death. The following year Dr Kevorkian made his device
available to two other people, who used it in order to end their lives.
In other cases, people wanting to die may
be unable to kill themselves. In 1973 George Zygmaniak was injured in a
motorcycle accident near his home in New Jersey. He was taken to hospital, where
he was found to be totally paralysed from the neck down. He was also in
considerable pain. He told his doctor and his brother, Lester, that he did not
want to live in this condition. He begged them both to kill him. Lester
questioned the doctor and hospital staff about George's prospects of recovery:
he was told that they were nil. He then smuggled a gun into the hospital, and
said to his brother: 'I am here to end your pain, George. Is it all right with
you?' George, who was now unable to speak because of an operation to assist his
breathing, nodded affirmatively. Lester shot him through the temple.
The Zygmaniak case appears to be a clear
instance of voluntary euthanasia, although without some of the procedural
safeguards that advocates of the legalisation of voluntary euthanasia propose.
For instance, medical opinions about the patient's prospects of recovery were
obtained only in an informal manner. Nor was there a careful attempt to
establish, before independent witnesses, that George's desire for death was of a
fixed and rational kind, based on the best available information about his
situation. The killing was not carried out by a doctor. An injection would have
been less distressing to others than shooting. But these choices were not open
to Lester Zygrnaniak, for the law in New Jersey, as in most other places,
regards mercy killing as murder, and if he had made his plans known, he would
not have been able to carry them out.
Euthanasia can be voluntary even if a
person is not able, as Jean Humphry, Janet Adkins, and George Zygmaniak were
able, to indicate the wish to die right up to the moment the tablets are
swallowed, the switch thrown, or the trigger pulled. A person may, while in good
health, make a written request for euthanasia if, through accident or illness,
she should come to be incapable of making or expressing a decision to die, in
pain, or without the use of her mental faculties, and there is no reasonable
hope of recovery. In killing a person who has made such a request, who has
re-affirmed it from time to time, and who is now in one of the states described,
one could truly claim to be acting with her consent.
There is now one country in which doctors
can openly help their patients to die in a peaceful and dignified way. In the
Netherlands, a series of court cases during the 1980s upheld a doctor's right to
assist a patient to die, even if that assistance amounted to giving the patient
a lethal injection. Doctors in the Netherlands who comply with certain
guidelines (which will be described later in this chapter) can now quite openly
carry out euthanasia and can report this on the death certificate with- out fear
of prosecution. It has been estimated that about 2,300 deaths each year result
from euthanasia carried out in this way.
Involuntary Euthanasia
I shall regard euthanasia as involuntary
when the person killed is capable of consenting to her own death, but does not
do so, either because she is not asked, or because she is asked and chooses to
go on living. Admittedly this definition lumps two different cases under one
heading. There is a significant difference between killing someone who chooses
to go on living and killing someone who has not consented to being killed, but
if asked, would have consented. In practice, though, it is hard to imagine cases
in which a person is capable of consenting and would have consented if asked,
but was not asked. For why not ask? Only in the most bizarre situations could
one conceive of a reason for not obtaining the consent of a person both able and
willing to consent.
Killing someone who has not consented to
being killed can properly be regarded as euthanasia only when the motive for
killing is the desire to prevent unbearable suffering on the part of the person
killed. It is, of course, odd that anyone acting from this motive should
disregard the wishes of the person for whose sake the action is done. Genuine
cases of involuntary euthanasia appear to be very rare.
Non-voluntary Euthanasia
These two definitions leave room for a
third kind of euthanasia. If a human being is not capable of understanding the
choice between life and death, euthanasia would be neither voluntary nor
involuntary, but non-voluntary. Those unable to give con- sent would include
incurably ill or severely disabled infants, and people who through accident,
illness, or old age have permanently lost the capacity to understand the issue
involved, with- out having previously requested or rejected euthanasia in these
circumstances.
Several cases of non-voluntary euthanasia
have reached the courts and the popular press. Here is one example. Louis
Repouille had a son who was described as 'incurably imbecile', had been
bed-ridden since infancy and blind for five years. According to Repouille: 'He
was just like dead all the time.... He couldn't walk, he couldn't talk, he
couldn't do anything.' in the end Repouille killed his son with chloroform.
In 1988 a case arose that well illustrates
the way in which modern medical technology forces us to make life and death
decisions. Samuel Linares, an infant, swallowed a small object that stuck in his
windpipe, causing a loss of oxygen to the brain. He was admitted to a Chicago
hospital in a coma and placed on a respirator. Eight months later he was still
comatose, still on the respirator, and the hospital was planning to move Samuel
to a long-term care unit. Shortly before the move, Samuel's parents visited him
in the hospital. His mother left the room, while his father produced a pistol
and told the nurse to keep away. He then disconnected Samuel from the
respirator, and cradled the baby in his arms until he died. When he was sure
Samuel was dead, he gave up his pistol and surrendered to police. He was charged
with murder, but the grand jury refused to issue a homicide indictment, and he
subsequently received a suspended sentence on a minor charge arising from the
use of the pistol.
Obviously, such cases raise different issues from those raised by voluntary euthanasia. There is no desire to die on the part of the infant. It may also be questioned whether, in such cases, the death is carried out for the sake of the infant, or for the sake of the family as a whole. If Louis Repouille's son was 'just like dead all the time', then he may have been so profoundly brain- damaged that he was not capable of suffering at all. That is also likely to have been true of the comatose Samuel Linares. In that case, while caring for him would have been a great and no doubt futile burden for the family, and in the Linares case, a drain on the state's limited medical resources as well, the infants were not suffering, and death could not be said to be in, or contrary to, their interests. It is therefore not euthanasia, strictly speaking, as I have defined the term. it might nevertheless be a justifiable ending of a human life.
Since cases of infanticide and
non-voluntary euthanasia are the kind of case most nearly akin to our previous
discussions of the status of animals and the human fetus, we shall consider them
first.
JUSTIFYING INFANTICIDE AND NON-VOLUNTARY
EUTHANASIA
As we have seen, euthanasia is
non-voluntary when the subject has never had the capacity to choose to live or
die. This is the situation of the severely disabled infant or the older human
being who has been profoundly intellectually disabled since birth. Euthanasia or
other forms of killing are also non- voluntary when the subject is not now but
once was capable of making the crucial choice, and did not then express any
preference relevant to her present condition.
The case of someone who has never been
capable of choosing to live or die is a little more straightforward than that of
a person who had, but has now lost, the capacity to make such a decision. We
shall, once again, separate the two cases and take the more straightforward one
first. For simplicity, I shall concentrate on infants, although everything I say
about them would apply to older children or adults whose mental age is and has
always been that of an infant.
Life and Death Decisions for Disabled
Infants
If we were to approach the issue of life
or death for a seriously disabled human infant without any prior discussion of
the ethics of killing in general, we might be unable to resolve the conflict
between the widely accepted obligation to protect the sanctity of human life,
and the goal of reducing suffering. Some say that such decisions are
'subjective', or that life and death questions must be left to God and Nature.
Our previous discussions have, however, prepared the ground, and the principles
established and applied in the preceding three chapters make the issue much less
baffling than most take it to be.
In Chapter 4 we saw that the fact that a
being is a human being, in the sense of a member of the species Homo sapiens, is
not relevant to the wrongness of killing it; it is, rather, characteristics like
rationality, autonomy, and self-consciousness that make a difference. Infants
lack these characteristics. Killing them, therefore, cannot be equated with
killing normal human beings, or any other self-conscious beings. This conclusion
is not limited to infants who, because of irreversible intellectual
disabilities, will never be rational, self-conscious beings. We saw in our
discussion of abortion that the potential of a fetus to become a rational,
self-conscious being cannot count against killing it at a stage when it lacks
these characteristics - not, that is, unless we are also prepared to count the
value of rational self-conscious life as a reason against contraception and
celibacy. No infant - disabled or not - has as strong a claim to life as beings
capable of seeing themselves as distinct entities, existing over time.
The difference between killing disabled
and normal infants lies not in any supposed right to life that the latter has
and the former lacks, but in other considerations about killing. Most obviously
there is the difference that often exists in the attitudes of the parents. The
birth of a child is usually a happy event for the parents. They have, nowadays,
often planned for the child. The mother has carried it for nine months. From
birth, a natural affection begins to bind the parents to it. So one important
reason why it is normally a terrible thing to kill an infant is the effect the
killing will have on its parents.
It is different when the infant is born
with a serious disability. Birth abnormalities vary, of course. Some are trivial
and have little effect on the child or its parents; but others turn the normally
joyful event of birth into a threat to the happiness of the parents, and any
other children they may have.
Parents may, with good reason, regret that
a disabled child was ever born. In that event the effect that the death of the
child will have on its parents can be a reason for, rather than against killing
it. Some parents want even the most gravely disabled infant to live as long as
possible, and this desire would then be a reason against killing the infant. But
what if this is not the case? in the discussion that follows I shall assume that
the parents do not want the disabled child to live. I shall also assume that the
disability is so serious that - again in contrast to the situation of an
unwanted but normal child today - there are no other couples keen to adopt the
infant. This is a realistic assumption even in a society in which there is a
long waiting- list of couples wishing to adopt normal babies. It is true that
from time to time cases of infants who are severely disabled and are being
allowed to die have reached the courts in a glare of publicity, and this has led
to couples offering to adopt the child. Unfortunately such offers are the
product of the highly publicised dramatic life-and-death situation, and do not
extend to the less publicised but far more cormnon situations in which parents
feel themselves unable to look after a severely disabled child, and the child
then languishes in an institution.
Infants are sentient beings who are
neither rational nor self- conscious. So if we turn to consider the infants in
themselves, independently of the attitudes of their parents, since their species
is not relevant to their moral status, the principles that govern the wrongness
of killing non-human animals who are sentient but not rational or self-conscious
must apply here too. As we saw, the most plausible arguments for attributing a
right to life to a being apply only if there is some awareness of oneself as a
being existing over time, or as a continuing mental self. Nor can respect for
autonomy apply where there is no capacity for autonomy. The remaining principles
identified in Chapter 4 are utilitarian. Hence the quality of life that the
infant can be expected to have is important.
One relatively common birth disability is
a faulty development of the spine known as spina bifida. Its prevalence, varies
in different countries, but it can affect as many as one in five hundred live
births. In the more severe cases, the child will be permanently paralysed from
the waistdown and lack control of bowels or bladder. Often excess fluid
accumulates in the brain, a condition known as hydrocephalus, which can result
in intellectual disabilities. Though some forms of treatment exist, if the child
is badly affected at birth, the paralysis, incontinence, and intellectual
disability cannot be overcome.
Some doctors closely connected with
children suffering from severe spina bifida believe that the lives of the worst
affected children are so miserable that it is wrong to resort to surgery to keep
them alive. Published descriptions of the lives of these children support the
judgment that these worst affected children will have lives filled with pain and
discomfort. They need repeated major surgery to prevent curvature of the spine,
due to the paralysis, and to correct other abnormalities. Some children with
spina bifida have had forty major operations before they reach their teenage
years.
When the life of an infant will be so
miserable as not to be worth living, from the internal perspective of the being
who will lead that life, both the 'prior existence' and the 'total' version of
utilitarianism entail that, if there are no 'extrinsic' reasons for keeping the
infant alive - like the feelings of the parents - it is better that the child
should be helped to die without further suffering. A more difficult problem
arises - and the convergence between the two views ends - when we consider
disabilities that make the child's life prospects significantly less promising
than those of a normal child, but not so bleak as to make the child's life not
worth living. Haemophilia is probably in this category. The haemophiliac lacks
the element in normal blood that makes it clot and thus risks prolonged
bleeding, especially internal bleeding, from the slightest injury. if allowed to
continue, this bleeding leads to permanent crippling and eventually death. The
bleeding is very painful and although improved treatments have eliminated the
need for constant blood transfusions, haemophiliacs still have to spend a lot of
time in hospital. They are unable to play most sports and live constantly on the
edge of crisis. Nevertheless, haemophiliacs do not appear to spend their time
wondering whether to end it all; most find life definitely worth living, despite
the difficulties they face.
Given these facts, suppose that a newborn
baby is diagnosed as a haemophiliac. The parents, daunted by the prospect of
bringing up a child with this condition, are not anxious for him to live. Could
euthanasia be defended here? Our first reaction may well be a firm 'no', for the
infant can be expected to have a life that is worth living, even if not quite as
good as that of a normal baby. The 'prior existence' version of utilitarianism
sup- ports this judgment. The infant exists. His life can be expected to contain
a positive balance of happiness over misery. To kill him would deprive him of
this positive balance of happiness. Therefore it would be wrong.
On the 'total' version of utilitarianism,
however, we cannot reach a decision on the basis of this information alone. The
total view makes it necessary to ask whether the death of the haemophiliac
infant would lead to the creation of another being who would not otherwise have
existed. In other words, if the haemophiliac child is killed, will his parents
have another child whom they would not have if the haemophiliac child lives? If
they would, is the second child likely to have a better life than the one
killed?
Often it will be possible to answer both
these questions affinnatively. A woman may plan to have two children. If one
dies while she is of child-bearing age, she may conceive another in its place.
Suppose a woman planning to have two children has one normal child, and then
gives birth to a haemophiliac child. The burden of caring for that child may
make it impossible for her to cope with a third child; but if the disabled child
were to die, she would have another. It is also plausible to suppose that the
prospects of a happy life are better for a normal child than for a haemophiliac.
When the death of a disabled infant will
lead to the birth of another infant with better prospects of a happy life, the
total amount of happiness will be greater if the disabled infant is killed. The
loss of happy life for the first infant is outweighed by the gain of a happier
life for the second. Therefore, if killing the haemophiliac infant has no
adverse effect on others, it would, according to the total view, be right to
kill him.
The total view treats infants as
replaceable, in much the same way as it treats non-self-conscious animals (as we
saw in Chapter 5). Many will think that the replaceability argument cannot be
applied to human infants. The direct killing of even the most hopelessly
disabled infant is still officially regarded as murder; how then could the
killing of infants with far less serious problems, like haernophilia, be
accepted? Yet on further reflection, the implications of the replaceability
argument do not seem quite so bizarre. For there are disabled members of our
species whom we now deal with exactly as the argument suggests we should. These
cases closely resemble the ones we have been discussing. There is only one
difference, and that is a difference of timing - the timing of the discovery of
the problem, and the consequent killing of the disabled being.
Prenatal diagnosis is now a routine
procedure for pregnant women. There are various medical techniques for obtaining
information about the fetus during the early months of pregnancy. At one stage
in the development of these procedures, it was possible to discover the sex of
the fetus, but not whether the fetus would suffer from haemophilia. Haemophilia
is a sex- linked genetic defect, from which only males suffer; females can carry
the gene and pass it on to their male offspring without themselves being
affected. So a woman who knew that she carried the gene for haemophilia could,
at that stage, avoid giving birth to a haemophiliac child only by finding out
the sex of the fetus, and aborting all males fetuses. Statistically, only half
of these male children of women who carried the defective gene would have
suffered from haernophilia, but there was then no way to find out to which half
a particular fetus belonged. Therefore twice as many fetuses were being killed
as necessary, in order to avoid the birth of children with haemophilia. This
practice was widespread in many countries, and yet did not cause any great
outcry. Now that we have techniques for identifying haemophilia before birth, we
can be more selective, but the principle is the same: women are offered, and
usually accept, abortions in order to avoid giving birth to children with
haemophilia.
The same can be said about some other
conditions that can be detected before birth. Down's syndrome, formerly known as
mongolism, is one of these. Children with this condition have intellectual
disabilities and most will never be able to live in- dependently, but their
lives, like those of small children, can be joyful. The risk of having a Down's
syndrome child increases sharply with the age of the mother, and for this reason
prenatal diagnosis is routinely offered to pregnant women over 35. Again,
undergoing the procedure implies that if the test for Down's syndrome is
positive, the woman will consider aborting the fetus and, if she still wishes to
have another child, will start another pregnancy, which has a good chance of
being normal.
Prenatal diagnosis, followed by abortion
in selected cases, is common practice in countries with liberal abortion laws
and advanced medical techniques. I think this is as it should be. As the
arguments of Chapter 6 indicate, I believe that abortion can be justified. Note,
however, that neither haemophilia nor Down's syndrome is so crippling as to make
life not worth living, from the inner perspective of the person with the
condition. To abort a fetus with one of these disabilities, intending to have
another child who will not be disabled, is to treat fetuses as interchangeable
or replaceable. If the mother has previously decided to have a certain number of
children, say two, then what she is doing, in effect, is rejecting one potential
child in favour of another. She could, in defence of her actions, say: the loss
of life of the aborted fetus is outweighed by the gain of a better life for the
normal child who will be conceived only if the disabled one dies.
When death occurs before birth,
replaceability does not conflict with generally accepted moral convictions. That
a fetus is known to be disabled is widely accepted as a ground for abortion. Yet
in discussing abortion, we saw that birth does not mark a morally significant
dividing line. I cannot see how one could defend the view that fetuses may be
'replaced' before birth, but newborn infants may not be. Nor is there any other
point, such as viability, that does a better job of dividing the fetus from the
infant. Self-consciousness, which could provide a basis for holding that it is
wrong to kill one being and replace it with another, is not to be found in
either the fetus or the newborn infant. Neither the fetus nor the newborn infant
is an individual capable of regarding itself as a distinct entity with a life of
its own to lead, and it is only for newborn infants, or for still earlier stages
of human life, that replaceability should be considered to be an ethically
acceptable option.
It may still be objected that to replace
either a fetus or a newborn infant is wrong because it suggests to disabled
people living today that their lives are less worth living than the lives of
people who are not disabled. Yet it is surely flying in the face of reality to
deny that, on average, this is so. That is the only way to make sense of actions
that we all take for granted. Recall thalidomide: this drug, when taken by
pregnant women, caused many children to be born without arms or legs. Once the
cause of the abnormal births was discovered, the drug was taken off the market,
and the company responsible had to pay compensation. If we really believed that
there is no reason to think of the life of a disabled person as likely to be any
worse than that of a normal person, we would not have regarded this as a
tragedy. No compensation would have been sought, or awarded by the courts. The
children would merely have been 'different'. We could even have left the drug on
the market, so that women who found it a useful sleeping pill during pregnancy
could continue to take it. If this sounds grotesque, that is only because we are
all in no doubt at all that it is better to be born with limbs than without
them. To believe this involves no disrespect at all for those who are lacking
limbs; it simply recognises the reality of the difficulties they face.
In any case, the position taken here does
not imply that it would be better that no people born with severe disabilities
should survive; it implies only that the parents of such infants should be able
to make this decision. Nor does this imply lack of respect or equal
consideration for people with disabilities who are now living their own lives in
accordance with their own wishes. As we saw at the end of Chapter 2, the
principle of equal consideration of interests rejects any discounting of the
interests of people on grounds of disability.
Even those who reject abortion and the
idea that the fetus is replaceable are likely to regard possible people as
replaceable. Recall the second woman in Parfit's case of the two women,
described in Chapter 5. She was told by her doctor that if she went ahead with
her plan to become pregnant immediately, her child would have a disability (it
could have been haemophilia); but if she waited three months her child would not
have the disability. If we think she would do wrong not to wait, it can only be
because we are comparing the two possible lives and judging one to have better
prospects than the other. Of course, at this stage no life has begun; but the
question is, when does a life, in the morally significant sense, really begin?
in Chapters 4 and 5 we saw several reasons for saying that life only begins in
the morally significant sense when there is awareness of one's existence over
time. The metaphor of life as a journey also provides a reason for holding that
in infancy, life's voyage has scarcely begun.
Regarding newborn infants as replaceable,
as we now regard fetuses, would have considerable advantages over prenatal
diagnosis followed by abortion. Prenatal diagnosis still cannot detect all major
disabilities. Some disabilities, in fact, are not present before birth; they may
be the result of extremely pre- mature birth, or of something going wrong in the
birth process itself. At present parents can choose to keep or destroy their
disabled offspring only if the disability happens to be detected during
pregnancy. There is no logical basis for restricting parents' choice to these
particular disabilities. If disabled newborn infants were not regarded as having
a right to life until, say, a week or a month after birth it would allow
parents, in consultation with their doctors, to choose on the basis of far
greater knowledge of the infant's condition than is possible before birth.
All these remarks have been concerned with the wrongness of ending the life of the infant, considered in itself rather than for its effects on others. When we take effects on others into account, the picture may alter. Obviously, to go through the whole of pregnancy and labour, only to give birth to a child who one decides should not live, would be a difficult, perhaps heartbreaking, experience. For this reason many women would prefer prenatal diagnosis and abortion rather than live birth with the possibility of infanticide; but if the latter is not morally worse than the former, this would seem to be a choice that the woman herself should be allowed to make.
Another factor to take into account is the
possibility of adoption. When there are more couples wishing to adopt than normal children available for adoption, a childless couple may be prepared to adopt
a haemophiliac. This would relieve the mother of the burden of bringing up a
haemophiliac child, and enable her to have another child, if she wished. Then
the replaceability argument could not justify infanticide, for bringing the
other child into existence would not be dependent on the death of the
haemophiliac. The death of the haemophiliac would then be a straightforward loss
of a life of positive quality, not outweighed by the creation of another being
with a better life.
So the issue of ending life for disabled
newborn infants is not without complications, which we do not have the space to
discuss adequately. Nevertheless the main point is clear: killing a disabled
infant is not morally equivalent to killing a person. Very often it is not wrong
at all.
Other Non-voluntary Life and Death
Decisions
In the preceding section we discussed
justifiable killing for beings who have never been capable of choosing to live
or die. Ending a life without consent may also be considered in the case of
those who were once persons capable of choosing to live or die, but now, through
accident or old age, have permanently lost this capacity, and did not, prior to
losing it, express any views about whether they wished to go on living in such
circumstances. These cases are not rare. Many hospitals care for motor accident
victims whose brains have been damaged beyond all possible recovery. They may
survive, in a coma, or perhaps barely conscious, for several years. In 1991, the
Lancet reported that Rita Greene, a nurse, had been a patient at D.C. General
Hospital in Washington for thirty-nine years without knowing it. Now aged
sixty-three, she had been in a vegetative state since undergoing open heart
surgery in 1952. The report stated that at any given time, between 5,000 and
10,000 Americans are surviving in a vegetative state. In other developed
countries, where life-prolonging technology is not used so aggressively, there
are far fewer long-term patients in this condition.
In most respects, these human beings do
not differ importantly from disabled infants. They are not self-conscious,
rational, or autonomous, and so considerations of a right to life or of
respecting autonomy do not apply. If they have no experiences at all, and can
never have any again, their lives have no intrinsic value. Their life's journey
has come to an end. They are biologically alive, but not biographically. (If
this verdict seems harsh, ask yourself whether there is anything to choose
between the following options: (a) instant death or (b) instant coma, followed
by death, without recovery, in ten years' time. I can see no advantage in
survival in a comatose state, if death without recovery is certain.) The lives
of those who are not in a coma and are conscious but not self-conscious have
value if such beings experience more pleasure than pain, or have preferences
that can be satisfied; but it is difficult to see the point of keeping such
human beings alive if their life is, on the whole, miserable.
There is one important respect in which
these cases differ from disabled infants. In discussing infanticide in the final
section of Chapter 6, 1 cited Bentham's comment that infanticide need not 'give
the slightest inquietude to the most timid imagination'. This is because those
old enough to be aware of the killing of disabled infants are necessarily
outside the scope of the policy. This cannot be said of euthanasia applied to
those who once were rational and self-conscious. So a possible objection to this
form of euthanasia would be that it will lead to insecurity and fear among those
who are not now, but might come to be, within its scope. For instance, elderly
people, knowing that non-voluntary euthanasia is sometimes applied to senile
elderly patients, bedridden, suffering, and lacking the capacity to accept or
reject death, might fear that every injection or tablet will be lethal. This
fear might be quite irrational, but it would be difficult to convince people of
this, particularly if old age really had affected their memory or powers of
reasoning.
This objection might be met by a procedure
allowing those who do not wish to be subjected to non-voluntary euthanasia under
any circumstances to register their refusal. Perhaps this would suffice; but
perhaps it would not provide enough reassurance. if not, non-voluntary
euthanasia would be justifiable only for those never capable of choosing to live
or die.
JUSTIFYING VOLUNTARY EUTHANASIA
Under existing laws in most countries,
people suffering unrelievable pain or distress from an incurable illness who beg
their doctors to end their lives are asking their doctors to risk a murder
charge. Although juries are extremely reluctant to convict in cases of this kind
the law is clear that neither the request, nor the degree of suffering, nor the
incurable condition of the person killed, is a defence to a charge of murder.
Advocates of voluntary euthanasia propose that this law be changed so that a
doctor could legally act on a patient's desire to die without further suffering.
Doctors have been able to do this quite openly in the Netherlands, as a result
of a series of court decisions during the 1980s, as long as they comply with
certain conditions. In Ger- many, doctors may provide a patient with the means
to end her life, but they may not administer the substance to her.
The case for voluntary euthanasia has some
common ground with the case for non-voluntary euthanasia, in that death is a
benefit for the one killed. The two kinds of euthanasia differ, however, in that
voluntary euthanasia involves the killing of a person, a rational and
self-conscious being and not a merely conscious being. (To be strictly accurate
it must be said that this is not always so, because although only rational and
self-conscious beings can consent to their own deaths, they may not be rational
and self-conscious at the time euthanasia is contemplated - the doctor may, for
instance, be acting on a prior written request for euthanasia if, through
accident or illness, one's rational faculties should be irretrievably lost. For
simplicity we shall, henceforth, disregard this complication.)
We have seen that it is possible to
justify ending the life of a human being who lacks the capacity to consent. We
must now ask in what way the ethical issues are different when the being is
capable of consenting, and does in fact consent.
Let us return to the general principles
about killing proposed in Chapter 4. 1 argued there that killing a
self-conscious being is a more serious matter than killing a merely conscious
being. I gave four distinct grounds on which this could be argued:
1. The classical utilitarian claim that
since self-conscious beings are capable of fearing their own death, killing them
has worse effects on others.
2. The preference utilitarian calculation that counts the thwarting of the
victim's desire to go on living as an important reason against killing.
3. A theory of rights according to which to have a right one must have the
ability to desire that to which one has a right, so that to have a right to life
one must be able to desire one's own continued existence.
4. Respect for the autonomous decisions of rational agents.
Now suppose we have a situation in which a
person suffering from a painful and incurable disease wishes to die. if the
individual were not a person - not rational or self-conscious - euthanasia
would, as I have said, be justifiable. Do any of the four grounds for holding
that it is normally worse to kill a person provide reasons against killing when
the individual is a person who wants to die?
The classical utilitarian objection does
not apply to killing that takes place only with the genuine consent of the
person killed. That people are killed under these conditions would have no
tendency to spread fear or insecurity, since we have no cause to be fearful of
being killed with our own genuine consent. If we do not wish to be killed, we
simply do not consent. In fact, the argument from fear points in favour of
voluntary euthanasia, for if voluntary euthanasia is not permitted we may, with
good cause, be fearful that our deaths will be unnecessarily drawn out and
distressing. In the Netherlands, a nationwide study commissioned by the
government found that 'Many patients want an assurance that their doctor will
assist them to die should suffering become unbearable.' Often, having received
this assurance, no persistent request for euthanasia eventuated. The
availability of euthanasia brought comfort without euthanasia having to be
provided.
Preference utilitarianism also points in
favour of, not against, voluntary euthanasia. Just as preference utilitarianism
must count a desire to go on living as a reason against killing, so it must
count a desire to die as a reason for killing.
Next, according to the theory of rights we
have considered, it is an essential feature of a right that one can waive one's
rights if one so chooses. I may have a right to privacy; but I can, if I wish,
film every detail of my daily life and invite the neighbours to my home movies.
Neighbours sufficiently intrigued to accept my invitation could do so without
violating my right to privacy, since the right has on this occasion been waived.
Similarly, to say that I have a right to life is not to say that it would be
wrong for my doctor to end my life, if she does so at my request. In making this
request I waive my right to life.
Lastly, the principle of respect for
autonomy tells us to allow rational agents to live their own lives according to
their own autonomous decisions, free from coercion or interference; but if
rational agents should autonomously choose to die, then respect for autonomy
will lead us to assist them to do as they choose.
So, although there are reasons for
thinking that killing a self-conscious being is normally worse than killing any
other kind of being, in the special case of voluntary euthanasia most of these
reasons count for euthanasia rather than against. Surprising as this result
might at first seem, it really does no more than reflect the fact that what is
special about self-conscious beings is that they can know that they exist over
time and will, unless they die, continue to exist. Normally this continued
existence is fervently desired; when the foreseeable continued existence is
dreaded rather than desired however, the desire to die may take the place of the
normal desire to live, reversing the reasons against killing based on the desire
to live. Thus the case for voluntary euthanasia is arguably much stronger than
the case for non-voluntary euthanasia.
Some opponents of the legalisation of
voluntary euthanasia might concede that all this follows, if we have a genuinely
free and rational decision to die: but, they add, we can never be sure that a
request to be killed is the result of a free and rational decision. Will not the
sick and elderly be pressured by their relatives to end their lives quickly?
Will it not be possible to commit outright murder by pretending that a person
has requested euthanasia? And even if there is no pressure of falsification, can
anyone who is ill, suffering pain, and very probably in a drugged and confused
state of mind, make a rational decision about whether to live or die?
These questions raise technical
difficulties for the legalisation of voluntary euthanasia, rather than
objections to the under- lying ethical principles; but they are serious
difficulties nonetheless. The guidelines developed by the courts in the
Netherlands have sought to meet them by proposing that euthanasia is acceptable
only if:
Euthanasia in these circumstances is
strongly supported by the Royal Dutch Medical Association, and by the general
public in the Netherlands. The guidelines make murder in the guise of euthanasia
rather far-fetched, and there is no evidence of an increase in the murder rate
in the Netherlands.
It is often said, in debates about
euthanasia, that doctors can be mistaken. In rare instances patients diagnosed
by two competent doctors as suffering from an incurable condition have survived
and enjoyed years of good health. Possibly the legalisation of voluntary
euthanasia would, over the years, mean the deaths of a few people who would
otherwise have recovered from their immediate illness and lived for some extra
years. This is not, however, the knockdown argument against euthanasia that some
imagine it to be. Against a very small number of unnecessary deaths that might
occur if euthanasia is legalised we must place the very large amount of pain and
distress that will be suffered if euthanasia is not legalised, by patients who
really are terminally ill. Longer life is not such a supreme good that it
outweighs all other considerations. (if it were, there would be many more
effective ways of saving life - such as a ban on smoking, or a reduction of
speed limits to 40 kilometres per hour - than prohibiting voluntary euthanasia.)
The possibility that two doctors may make a mistake means that the person who
opts for euthanasia is deciding on the balance of probabilities and giving up a
very slight chance of survival in order to avoid suffering that will almost
certainly end in death. This may be a perfectly rational choice. Probability is
the guide of life, and of death, too. Against this, some will reply that
improved care for the terminally ill has eliminated pain and made voluntary
euthanasia unnecessary. Elisabeth Kubler-Ross, whose On Death and Dying is
perhaps the best-known book on care for the dying, has claimed that none of her
patients request euthanasia. Given personal attention an the right medication,
she says, people come to accept their deaths and die peacefully without pain.
Kubler-Ross may be right. It may be
possible, now, to eliminate pain. In almost all cases, it may even be possible
to do it in a way that leaves patients in possession of their rational faculties
and free from vomiting, nausea, or other distressing side-effects. Unfortunately
only a minority of dying patients now receive this kind of care. Nor is physical
pain the only problem. There can also be other distressing conditions, like
bones so fragile they fracture at sudden movements, uncontrollable nausea and
vomiting, slow starvation due to a cancerous growth, inability to control one's
bowels or bladder, difficulty in breathing, and so on.
Dr Timothy Quill, a doctor from Rochester,
New York, has described how he prescribed barbiturate sleeping pills for
'Diane', a patient with a severe form of leukaemia, knowing that she wanted the
tablets in order to be able to end her life. Dr Quill had known Diane for many
years, and admired her courage in dealing with previous serious illnesses. in an
article in the New England Journal of Medicine, Dr Quill wrote:
"It was extraordinarily important to Diane
to maintain control of herself and her own dignity during the time remaining to
her. When this was no longer possible, she clearly wanted to die. As a former
director of a hospice program, I know how to use pain medicines to keep patients
comfortable and lessen suffering. I explained the philosophy of comfort care,
which I strongly believe in. Although Diane understood and appreciated this, she
had known of people lingering in what was called relative com- fort, and she
wanted no part of it. When the time came, she wanted to take her life in the
least painful way possible. Knowing of her desire for independence and her
decision to stay in control, I thought this request made perfect sense.... In
our discussion it became clear that preoccupation with her fear of a lingering
death would interfere with Diane's getting the most out of the time she had left
until she found a safe way to ensure her death."
Not all dying patients who wish to die are
fortunate enough to have a doctor like Timothy Quill. Betty Rollin has
described, in her moving book Last Wish, how her mother developed ovarian cancer
that spread to other parts of her body. One morning her mother said to her:
"I've had a wonderful life, but now it's
over, or it should be. I'm not afraid to die, but I am afraid of this illness,
what it's doing to me.... There's never any relief from it now. Nothing but
nausea and this pain.... There won't be any more chemotherapy. There's no
treatment anymore. So what happens to me now? I know what happens. I'll die
slowly .... I don't want that .... Who does it benefit if I die slowly? if it
benefits my children I'd be willing. But it's not going to do you any good ....
There's no point in a slow death, none. I've never liked doing things with no
point. I've got to end this."
Betty Rollin found it very difficult to
help her mother to carry out her desire:
"'Physician after physician turned down
our pleas for help (How many pills? What kind?).' After her book about her
mother's death was published, she received hundreds of letters, many from
people, or close relatives of people, who had tried to die, failed, and suffered
even more. Many of these people were denied help from doctors, because although
suicide is legal in most jurisdictions, assisted suicide is not."
Perhaps one day it will be possible to
treat all terminally ill and incurable patients in such a way that no one
requests euthanasia and the subject becomes a non-issue; but this is now just a
utopian ideal, and no reason at all to deny euthanasia to those who must live
and die in far less comfortable conditions. It is, in any case, highly
paternalistic to tell dying patients that they are now so well looked after that
they need not be offered the option of euthanasia. It would be more in keeping
with respect for individual freedom and autonomy to legalise euthanasia and let
patients decide whether their situation is bearable.
Do these arguments for voluntary
euthanasia perhaps give too much weight to individual freedom and autonomy?
After all, we do not allow people free choices on matters like, for instance,
the taking of heroin. This is a restriction of freedom but, in the view of many,
one that can be justified on paternalistic grounds. If preventing people from
becoming heroin addicts is justifiable paternalism, why isn't preventing people
from having themselves killed?
The question is a reasonable one, because
respect for individual freedom can be carded too far. John Stuart Mill thought
that the state should never interfere with the individual except to prevent harm
to others. The individual's own good, Mill thought, is not a proper reason for
state intervention. But Mill may have had too high an opinion of the rationality
of a human being. It may occasionally be right to prevent people from making
choices that are obviously not rationally based and that we can be sure they
will later regret. The prohibition of voluntary euthanasia cannot be justified
on paternalistic grounds, how- ever, for voluntary euthanasia is an act for
which good reasons exist. Voluntary euthanasia occurs only when, to the best of
medical knowledge, a person is suffering from an incurable and painful or
extremely distressing condition. In these circumstances one cannot say that to
choose to die quickly is obviously irrational. The strength of the case for
voluntary euthanasia lies in this combination of respect for the preferences, or
autonomy, of those who decide for euthanasia; and the clear rational basis of
the decision itself.
NOT JUSTIFYING INVOLUNTARY EUTHANASIA
Involuntary euthanasia resembles voluntary
euthanasia in that it involves the killing of those capable of consenting to
their own death. It differs in that they do not consent. This difference is
crucial, as the argument of the preceding section shows. All the four reasons
against killing self-conscious beings apply when the person killed does not
choose to die.
Would it ever be possible to justify
involuntary euthanasia on paternalistic grounds, to save someone extreme agony?
It might be possible to imagine a case in which the agony was so great, and so
certain, that the weight of utilitarian considerations favouring euthanasia
override all four reasons against killing self-conscious beings. Yet to make
this decision one would have to be confident that one can judge when a person's
life is so bad as to be not worth living, better than that person can judge
herself it is not clear that we are ever justified in having much confidence in
our judgments about whether the life of another person is, to that person, worth
living. That the other person wishes to go on living is good evidence that her
life is worth living. What better evidence could there be?
The only kind of case in which the
paternalistic argument is at all plausible is one in which the person to be
killed does not realise what agony she will suffer in future, and if she is not
killed now she will have to live through to the very end. On these grounds one
might kill a person who has - though she does not yet realise it - fallen into
the hands of homicidal sadists who will torture her to death. These cases are,
fortunately, more commonly encountered in fiction than reality.
If in real life we are unlikely ever to
encounter a case of justifiable involuntary euthanasia, then it may be best to
dismiss from our minds the fanciful cases in which one might imagine defending
it, and treat the rule against involuntary euthanasia as, for all practical
purposes, absolute. Here [R. M.] Hare's distinction between critical and intuitive
levels of moral reasoning (see Chapter 4), is again relevant. The case described
in the preceding paragraph is one in which, if we were reasoning at the critical
level, we might consider involuntary euthanasia justifiable; but at the
intuitive level, the level of moral reasoning we apply in our daily lives, we
can simply say that euthanasia is only justifiable if those killed either
1. lack the ability to consent to death,
because they lack the capacity to understand the choice between their own
continued existence or non-existence; or
2. have the capacity to choose between their own continued life or death and to make an informed, voluntary, and settled decision to die.
ACTIVE AND PASSIVE EUTHANASIA
The conclusions we have reached in this
chapter will shock a large number of readers, for they violate one of the most
fundamental tenets of Western ethics - the wrongness of killing innocent human
beings. I have already made one attempt to show that my conclusions are, at
least in the area of disabled infants, a less radical departure from existing
practice than one might suppose. I pointed out that many societies allow a
pregnant woman to Ml a fetus at a late stage of pregnancy if there is a
significant risk of it being disabled; and since the line between a developed
fetus and a newborn infant is not a crucial moral divide, it is difficult to see
why it is worse to kill a newborn infant known to be disabled. In this section I
shall argue that there is another area of accepted medical practice that is not
intrinsically different from the practices that the arguments of this chapter
would allow.
I have already referred to the birth
defect known as spina bifida, in which the infant is born with an opening in the
back, exposing the spinal cord. Until 1957, most of these infants died young,
but in that year doctors began using a new kind of valve, to drain off the
excess fluid that otherwise accumulates in the head with this condition. In some
hospitals it then became standard practice to make vigorous efforts to save
every spina bifida infant. The result was that few such infants died - but of
those who survived, many were severely disabled, with gross paralysis, multiple
deformities of the legs and spine, and no control of bowel or bladder.
Intellectual disabilities were also common. in short, the existence of these
children caused great difficulty for their families and was often a misery for
the children themselves.
After studying the results of this policy
of active treatment a British doctor, John Lorber, proposed that instead of
treating all cases of spina bifida, only those who have the defect in a mild
form should be selected for treatment. (He proposed that the final decision
should be up to the parents, but parents nearly always accept the
recommendations of the doctors.) This principle of selective treatment has now
been widely accepted in many countries and in Britain has been recognised as
legitimate by the Department of Health and Social Security. The result is that
fewer spina bifida children survive beyond infancy, but those who do survive
are, by and large, the ones whose physical and mental disabilities are
relatively minor.
The policy of selection, then, appears to
be a desirable one:but what happens to those disabled infants not selected for
treatment? Lorber does not disguise the fact that in these cases the hope is
that the infant will die soon and without suffering. it is to achieve this
objective that surgical operations and other forms of active treatment are not
undertaken, although pain and discomfort are as far as possible relieved. If the
infant happens to get an infection, the kind of infection that in a normal
infant would be swiftly cleared up with antibiotics, no antibiotics are given.
Since the survival of the infant is not desired, no steps are taken to prevent a
condition, easily curable by ordinary medical techniques, proving fatal.
All this is, as I have said, accepted
medical practice. in articles in medical journals, doctors have described cases
in which they have allowed infants to die. These cases are not limited to spina
bifida, but include, for instance, babies born with Down's syndome and other
complications. In 1982, the 'Baby Doe' case brought this practice to the
attention of the American public. 'Baby Doe' was the legal pseudonym of a baby
born in Bloomington, Indiana, with Down's syndrome and some additional problems.
The most serious of these was that the passage from the mouth to the stomach -
the oesophagus - was not property formed. This meant that Baby Doe could not
receive nourishment by mouth. The problem could have been repaired by surgery -
but in this case the parents, after discussing the situation with their
obstetrician, refused permission for surgery. Without surgery, Baby Doe would
soon die. Baby Doe's father later said that as a schoolteacher he had worked
closely with Down syndrome children, and that he and his wife had decided that
it was in the best interests of Baby Doe, and of their family a whole (they had
two other children), to refuse consent f the operation. The hospital
authorities, uncertain of their leg position, took the matter to court. Both the
local county court and the Indiana State Supreme Court upheld the parents' rig]
to refuse consent to surgery. The case attracted national made attention, and an
attempt was made to take it to the U.S. Supreme Court, but before this could
happen, Baby Doe died.
One result of the Baby Doe case was that
the U.S. government headed at the time by President Ronald Reagan, who had come,
to power with the backing of the right-wing religious 'Moral Majority', issued a
regulation directing that all infants are to be given necessary life-saving
treatment, irrespective of disability. But the new regulations were strongly
resisted by the American Medical Association and the American Academy of
Pediatrics. In court hearings on the regulations, even Dr C. Everett Koop,
Reagan's surgeon-general and the driving force behind the attempt to ensure that
all infants should be treated, had to admit that there were some cases in which
he would not provide life sustaining treatment. Dr Koop mentioned three
conditions in which, he said, life-sustaining treatment was not appropriate
anencephalic infants (infants born without a brain); infants who had, usually as
a result of extreme prematurity, suffered such severe bleeding in the brain that
they would never be able to breathe without a respirator and would never be able
even to recognise another person; and infants lacking a major part of their
digestive tract, who could only be kept alive by means o a drip providing
nourishment directly into the bloodstream.
The regulations were eventually accepted
only in a watered down form, allowing some flexibility to doctors. Even so, a
subsequent survey of American paediatricians specialising in the care of newborn
infants showed that 76 percent thought that the regulations were not necessary,
66 percent considered the regulations interfered with parents' right to
determine what course of action was in the best interests of their children, and
60 percent believed that the regulations did not allow adequate consideration of
infants' suffering.
In a series of British cases, the courts
have accepted the view that the quality of a child's life is a relevant
consideration in deciding whether life-sustaining treatment should be provided.
In a case called In re B, concerning a baby like Baby Doe, with Down's syndrome
and an intestinal obstruction, the court said that surgery should be carried
out, because the infant's life would not be'demonstrably awful'. in another
case, Re C, where the baby had a poorly formed brain combined with severe
physical handicaps, the court authorised the paediatric team to refrain from
giving life-prolonging treatment. This was also the course taken in the case of
Re Baby J: this infant was born extremely prematurely, and was blind and deaf
and would probably never have been able to speak.
Thus, though many would disagree with Baby
Doe's parents about allowing a Down's syndrome infant to die (because people
with Down's syndrome can live enjoyable lives and be warm and loving
individuals), virtually everyone recognises that in more severe conditions,
allowing an infant to die is the only humane and ethically acceptable course to
take. The question is: if it is right to allow infants to die, why is it wrong
to kill them?
This question has not escaped the notice
of the doctors involved. Frequently they answer it by a pious reference to the
nineteenth-century poet, Arthur Clough, who wrote:
Thou shalt not kill; but need'st not
strive Officiously to keep alive.
Unfortunately for those who appeal to
Clough's immortal lines as an authoritative ethical pronouncement, they come
from a biting satire - 'The Latest Decalogue' - the intent of which is to mock
the attitudes described. The opening lines, for example, are:
Thou shalt have one god only; who Would be
at the expense of two. No graven images may be Worshipped except the currency.
So Clough cannot be numbered on the side
of those who think it wrong to kill, but right not to try too hard to keep
alive. is there, nonetheless, something to be said for this idea? The view that
there is something to be said for it is often termed 'the acts and omissions
doctrine'. It holds that there is an important moral distinction between
performing an act that has certain consequences - say , the death of a disabled
child - and omitting to do something that has the same consequences. if this
doctrine is correct, the doctor who gives the child a lethal injection does
wrong; the doctor who omits to give the child antibiotics, knowing full well
that without antibiotics the child will die, does not.
What grounds are there for accepting the
acts and omissions doctrine? Few champion the doctrine for its own sake, as an
important ethical first principle. It is, rather, an implication of one view of
ethics, of a view that holds that as long as we do not violate specified moral
rules that place determinate moral obligations upon us, we do all that morality
demands of us. These rules are of the kind made familiar by the Ten Commandments
and similar moral codes: Do not kill, Do not lie, Do not steal, and so on.
Characteristically they are formulated in the negative, so that to obey them it
is necessary only to abstain from the actions they prohibit. Hence obedience can
be demanded of every member of the community.
An ethic consisting of specific duties,
prescribed by moral rules that everyone can be expected to obey, must make a
sharp moral distinction between acts and omissions. Take, for example, the rule:
'Do not kill.' If this rule is interpreted, as it has been in the Western
tradition, as prohibiting only the taking of innocent human life, it is not too
difficult to avoid overt acts in violation of it. Few of us are murderers. It is
not so easy to avoid letting innocent humans die. Many people die because of
insufficient food, or poor medical facilities. If we could assist some of them,
but do not do so, we are letting them die. Taking the rule against killing to
apply to omissions would make living in accordance with it a mark of saintliness
or moral heroism, rather than a minimum required of every morally decent person.
An ethic that judges acts according to
whether they do or do not violate specific moral rules must, therefore, place
moral weight on the distinction between acts and omissions. An ethic that judges
acts by their consequences will not do so, for the consequences of an act and an
emission will often be, in all significant respects, indistinguishable. For
instance, emitting to give antibiotics to a child with pneumonia may have
consequences no less fatal than giving the child a lethal injection.
Which approach is right? I have argued for a consequentialist approach to ethics. The acts/omissions issue poses the choice between these two basic approaches in an unusually clear and direct way. What we need to do is imagine two parallel situations differing only in that in one a person performs an act resulting in the death of another human being, while in the other she omits to do something, with the same result. Here is a description of a relatively common situation, taken from an essay by Sir Gustav Nossal, an eminent Australian medical researcher:
"An old lady of 83 has been admitted [to a
nursing home for the aged] because her increasing degree of mental confusion has
made it impossible for her to stay in her own home, and there is no one willing
and able to look after her. Over three years, her condition deteriorates. She
loses the ability to speak, requires to be fed, and becomes incontinent.
Finally, she cannot sit in an armchair any longer, and is confined permanently
to bed. One day, she contracts pneumonia."
In a patient who was enjoying a reasonable
quality of life, pneumonia would be routinely treated with antibiotics. Should
this patient be given antibiotics? Nossal continues:
The relatives are contacted, and the
matron of the nursing home tells them that she and the doctor she uses most
frequently have worked out a loose arrangement for cases of this type. With
advanced senile dementia, they treat the first three infections with
antibiotics, and after that, mindful of the adage that 'pneumonia is the old
person's friend', they let nature take its course. The matron emphasises that if
the relatives desire, all infections can be vigorously treated. The relatives
agree with the rule of thumb. The patient dies of a urinary tract infection six
months later.
This patient died when she did as a result
of a deliberate omission. Many people would think that this omission was well-
justified. They might question whether it would not have been better to omit
treatment even for the initial occurrence of pneumonia. There is, after all, no
moral magic about the number three. Would it also have been justifiable, at the
time of the omission, to give an injection that would bring about the patient's
death in a peaceful way?
Comparing these two possible ways of
bringing about a patient's death at a particular time, is it reasonable to hold
that the doctor who gives the injection is a murderer who deserves to go to
jail, while the doctor who decides not to administer antibiotics is practising
good and compassionate medicine? That may be what courts of law would say, but
surely it is an untenable distinction. in both cases, the outcome is the death
of the patient. in both cases, the doctor knows that this will be the result,
and decides what she will do on the basis of this knowledge, because she judges
this result to be better than the alternative. In both cases the doctor must
take responsibility for her decision - it would not be correct for the doctor
who decided not to provide antibiotics to say that she was not responsible for
the patient's death because she did nothing. Doing nothing in this situation is
itself a deliberate choice and one cannot escape responsibility for its
consequences.
One might say, of course, that the doctor
who withholds antibiotics does not kill the patient, she merely allows the
patient to die; but one must then answer the further question why killing is
wrong, and letting die is not. The answer that most advocates of the distinction
give is simply that there is a moral rule against killing innocent human beings
and none against allowing them to die. This answer treats a conventionally
accepted moral rule as if it were beyond questioning; it does not go on to ask
whether we should have a moral rule against killing (but not against allowing to
die). But we have already seen that the conventionally accepted principle of the
sanctity of human life is untenable. The moral rules that prohibit killing, but
accept 'letting die' cannot be taken for granted either.
Reflecting on these cases leads us to the
conclusion that there is no intrinsic moral difference between killing and
allowing to die. That is, there is no difference which depends solely on the
distinction between an act and an omission. (This does not mean that all cases
of allowing to die are morally equivalent to killing. Other factors - extrinsic
factors - will sometimes be relevant. This will be discussed further in Chapter
8.) Allowing to die - sometimes called 'passive euthanasia' - is already
accepted as a humane and proper course of action in certain cases. If there is
no intrinsic moral difference between killing and allowing to die, active
euthanasia should also be accepted as humane and proper in certain
circumstances.
Others have suggested that the difference
between withholding treatment necessary to prolong life, and giving a lethal
injection, lies in the intention with which the two are done. Those who take
this view resort to the 'doctrine of double effect', a doctrine widely held
among Roman Catholic moral theologians and moral philosophers, to argue that one
action (for example, refraining from life-sustaining treatment) may have two
effects (in this case, not causing additional suffering to the patient, and
shortening the patient's life). They then argue that as long as the directly
intended effect is the beneficial one that does not violate an absolute moral
rule, the action is permissible. Though we foresee that our action (or omission)
will result in the death of the patient, this is merely an unwanted side-effect.
But the distinction between directly intended effect and side-effect is a
contrived one. We cannot avoid responsibility simply by directing our intention
to one effect rather than another. if we foresee both effects, we must take
responsibility for the foreseen effects of what we do. We often want to do
something, but cannot do it because of its other, unwanted consequences. For
example, a chemical company might want to get rid of toxic waste in the most
economical manner, by dumping it in the nearest river. Would we allow the
executives of the company to say that all they directly intended was to improve
the efficiency of the factory, thus promoting employment and keeping down the
cost of living? Would we regard the pollution as excusable because it is merely
an unwanted side-effect of furthering these worthy objectives?
Obviously the defenders of the doctrine of
double effect would not accept such an excuse. In rejecting it, however, they
would have to rely upon a judgment that the cost - the polluted river - is
disproportionate to the gains. Here a consequentialist judgment lurks behind the
doctrine of double effect. The same is true when the doctrine is used in medical
care. Normally, saving life takes precedence over relieving pain. If in the case
of a particular patient it does not, this can only be because we have judged
that the patient's prospects for a future life of acceptable quality are so poor
that in this case relieving suffering can take precedence. This is, in other
words, not a decision based on acceptance of the sanctity of human life, but a
decision based on a disguised quality of life judgment.
Equally unsatisfactory is the common
appeal to a distinction between 'ordinary' and 'extraordinary' means of
treatment, coupled with the belief that it is not obligatory to provide
extraordinary means. Together with my colleague, Helga Kuhse, I carried out a
survey of paediatricians and obstetricians in Australia and found that they had
remarkable ideas about what constituted 'ordinary' and what 'extraordinary'
means. Some even thought that the use of antibiotics - the cheapest, simplest,
and most common medical procedure - could be extraordinary. The reason for this
range of views is easy to find. When one looks at the justifications given by
moral theologians and philosophers for the distinction, it turns out that what
is 'ordinary' in one situation can become 'extraordinary' in another. For
example, in the famous case of Karen Ann Quinlan, the young New Jersey woman who
was in a coma for ten years before she died, a Roman Catholic bishop testified
that the use of a respirator was'extraordinary'and hence optional because
Quinlan had no hope of recovery from the coma. Obviously, if doctors had thought
that Quinlan was likely to recover, the use of the respirator would not have
been optional, and would have been declared 'ordinary'. Again, it is the quality
of life of the patient (and where resources are limited and could be used more
effectively to save lives elsewhere, the cost of the treatment) that is
determining whether a given form of treatment is ordinary or extraordinary, and
therefore is to be provided or not. Those who appeal to this distinction are
cloaking their consequentialist views in the robe of an absolutist ethic; but
the robe is wonn out, and the disguise is now transparent.
So it is not possible to appeal to either
the doctrine of double effect or the distinction between ordinary and
extraordinary means in order to show that allowing a patient to die is morally
different from actively helping a patient to die. Indeed, because of extrinsic
differences - especially differences in the time it takes for death to occur -
active euthanasia may be the only humane and morally proper course. Passive
euthanasia can be a slow process. in an article in the British Medical Journal,
John Lorber has charted the fate of twenty-five infants born with spina bifida
on whom it had been decided, in view of the poor prospects for a worthwhile
life, not to operate. it will be recalled that Lorber freely grants that the
object of not tree is that they should die soon and painlessly. Yet of five
untreated infants, fourteen were still alive after and seven after three months.
In Lorber's sample, all the infants died within nine months, but this cannot be
guaranteed or at least, cannot be guaranteed without stepping over between
active and passive euthanasia. (Lorber's opponents have claimed that the
untreated infants under his because they are given sedatives and fed only on der
babies do not have healthy appetites.) An Australian clinic following Lorber's
approach to spina bifida found that nine untreated infants, five survived for
more than two years. For both the infants, and their families, this must be a
long, drawn out ordeal. It is also (although in a society with a reasonable
level of affluence this should not be the primary consideration) a considerable
burden on the hospital staff and the community's medical resources.
Consider, to take another example, infants
born with Down's syndrome and a blockage in the digestive system which, if not
removed, will make it impossible for the baby to eat. Like Baby Doe', these
infants may be allowed to die. Yet the blockage can be removed and has nothing
to do with the degree of intellectual disability the child will have. Moreover,
the death resulting from the failure to operate in these circumstances is,
neither swift nor painless. The infant dies from dehydration or hunger. Baby Doe
took about five days to die, an in other recorded instances of this practice, it
has taken up to two weeks for death to come.
It is interesting, in this context, to
think again of our argument that membership of the species Homo sapiens not
entitle a being to better treatment than a being at a similar mental level who
is a member of a different species. We could also have said - except that it
seemed too obvious to need saying - that membership of the species Homo sapiens
is not a reason for giving a being worse treatment than a member of a different
species. Yet in respect of euthanasia, this needs to be said. We do not doubt
that it is right to shoot badly injured or sick animals if they are in pain and
their chances of recovery are negligible. To 'allow nature to take its course',
withholding treatment but refusing to kill, would obviously be wrong. It is only
our misplaced respect for the doctrine of the sanctity of human life that
prevents us from seeing that what it is obviously wrong to do to a horse, it is
equally wrong to do to a disabled infant.
To summarise: passive ways of ending life
result in a drawn- out death. They introduce irrelevant factors (a blockage in
the intestine, or an easily curable infection) into the selection of those who
shall die. If we are able to admit that our objective is a swift and painless
death we should not leave it up to chance to determine whether this objective is
achieved. Having chosen death we should ensure that it comes in the best
possible way.
THE SLIPPERY SLOPE: FROM EUTHANASIA TO
GENOCIDE?
Before we leave this topic we must
consider an objection that looms so large in the anti-euthanasia literature that
it merits a section to itself It is, for instance, the reason why John Lorber
rejects active euthanasia. Lorber has written:
"I wholly disagree with euthanasia. Though
it is fully logical, and in expert and conscientious hands it could be the most
humane way of dealing with such a situation, legalizing euthanasia would be a
most dangerous weapon in the hands of the State or ignorant or unscrupulous
individuals. One does not have to go far back in history to know what crimes can
be continued if euthanasia were legalized."
Would euthanasia be the first step down a
slippery slope? In the absence of prominent moral footholds to check our
descent, would we slide all the way down into the abyss of state terror and mass
murder? The experience of Nazism, to which Lorber no doubt is referring, has
often been used as an illustration of what could follow acceptance of
euthanasia. Here is a more specific example, from an article by another doctor,
Leo Alexander:
"Whatever proportions [Nazi] crimes finally
assumed, it became evident to all who investigated them that they had started
from small beginnings. The beginnings at first were merely a subtle shift in
emphasis in the basic attitude of the physicians. It started with the acceptance
of the attitude, basic in the euthanasia movement, that there is such a thing as
life not worthy to be lived. This attitude in its early stages concerned itself
merely with the severely and chronically sick. Gradually the sphere of those to
be included in the category was enlarged to encompass the socially unproductive,
the ideologically unwanted, the racially unwanted and finally all non-Germans.
But it is important to realize that the infinitely small wedged-in lever from
which this entire trend of mind received its impetus was the attitude toward the
nonrehabilitable sick."
Alexander singles out the Nazis' so-called
euthanasia program as the root of all the horrendous crimes the Nazis later
committed, because that program implied 'that there is such a thing as life not
worthy to be lived'. Lorber could hardly agree with Alexander on this, since his
recommended procedure of not treating selected infants is based on exactly this
judgment. Although people sometimes talk as if we should never judge a human
life to be not worth living, there are times when such a judgment is obviously
correct. A life of physical suffering, unredeemed by any form of pleasure or by
a minimal level of self-consciousness, is not worth living. Surveys undertaken
by health care economists in which people are asked how much they value being
alive in certain states of health, regularly find that people give some states a
negative value - that is, they indicate that they would prefer to be dead than
to survive in that condition. Apparently, the life of the elderly woman
described by Sir Gustav Nossal was, in the opinion of the matron of the nursing
home, the doctor, and the relatives, not worth living. If we can set criteria
for deciding who is to be allowed to die and who is to be given treatment, then
why should it be wrong to set criteria, perhaps the same criteria, for deciding
who should be killed?
So it is not the attitude that some lives
are not worth living that marks out the Nazis from normal people who do not
commit mass murder. What then is it? Is it that they went beyond passive
euthanasia, and practised active euthanasia? Many, like Lorber, worry about the
power that a program of active euthanasia could place in the hands of an
unscrupulous government. This worry is not negligible, but should not be
exaggerated. Unscrupulous governments already have within their power more
plausible means of getting rid of their op- ponents than euthanasia administered
by doctors on medical grounds. 'Suicides' can be arranged. 'Accidents' can
occur. If necessary, assassins can be hired. Our best defence against such
possibilities is to do everything possible to keep our government democratic,
open, and in the hands of people who would not seriously wish to kill their
opponents. Once the wish is serious enough, governments will find a way, whether
euthanasia is legal or not.
In fact the Nazis did not have a
euthanasia program, in the proper sense of the word. Their so-called euthanasia
program was not motivated by concern for the suffering of those killed. If it
had been, why would the Nazis have kept their operations secret, deceived
relatives about the cause of death of those killed, and exempted from the
program certain privileged classes, such as veterans of the armed services, or
relatives of the euthanasia staff? Nazi 'euthanasia' was never voluntary, and
often was involuntary rather than non-voluntary. 'Doing away with useless
mouths' - a phrase used by those in charge - gives a better idea of the
objectives of the program than 'mercy-killing'. Both racial origin and ability
to work were among the factors considered in the selection of patients to be
killed. It was the Nazi belief in the importance of maintaining a pure Aryan
Volk - a somewhat mystical entity that was thought of as more important than
mere individuals lives - that made both the so-called euthanasia program and
later the entire holocaust possible. Proposals for the legalisation of
euthanasia, in contrast, are based on respect for autonomy and the goal of
avoiding pointless suffering.
This essential difference in the aims of
Nazi 'euthanasia' and modern proposals may be granted, but the slippery slope
argument could still be defended as a way of suggesting that the present strict
rule against the direct killing of innocent human beings serves a useful
purpose. However arbitrary and unjustifiable the distinctions between human and
non-human, fetus and infant, killing and allowing to die may be, the rule
against direct killing of innocent humans at least marks a workable line. The
distinction between an infant whose life may be worth living, and one whose life
definitely is not, is much more difficult to draw. Perhaps people who see that
certain kinds of human beings are killed in certain circumstances may go on to
conclude that it is not wrong to kill others not very different from the first
kind. So will the boundary of acceptable killing be pushed gradually back? in
the absence of any logical stopping place, will the outcome be the loss of all
respect for human life?
If our laws were altered so that anyone
could carry out an act of euthanasia, the absence of a clear line between those
who might justifiably be killed and those who might not would pose a real
danger; but that is not what advocates of euthanasia propose. if acts of
euthanasia could only be carried out by a member of the medical profession, with
the concurrence of a second doctor, it is not likely that the propensity to kill
would spread unchecked throughout the community. Doctors already have a good
deal of power over life and death, through their ability to withhold treatment.
There has been no suggestion that doctors who begin by allowing severely
disabled infants to die from pneumonia will move on to withhold antibiotics from
racial minorities or political extremists. In fact legalising euthanasia might
well act as a check on the power of doctors since it would bring into the open
and under the scrutiny of another doctor what some doctors now do on their own
initiative and in secret.
There is, anyway, little historical
evidence to suggest that a permissive attitude towards the killing of one
category of human beings leads to a breakdown of restrictions against killing
other humans. Ancient Greeks regularly killed or exposed infants, but appear to
have been at least as scrupulous about taking the lives of their fellow-citizens
as medieval Christians or modem Americans. In traditional Eskimo societies it
was the custom for a man to kill his elderly parents, but the murder of a normal
healthy adult was almost unheard of. I mention these practices not to suggest
that they should be imitated, but only to indicate that lines can be drawn at
places different from where we now draw them. If these societies could separate
human beings into different categories without transferring their attitudes from
one group to another, we with our more sophisticated legal systems and greater
medical knowledge should be able to do the same.
All of this is not to deny that departing
from the traditional sanctity-of-life ethic carries with it a very small but
nevertheless finite risk of unwanted consequences. Against this risk we must
balance the tangible harm to which the traditional ethic gives rise - harm to
those whose misery is needlessly prolonged. We must also ask if the widespread
acceptance of abortion and passive euthanasia has not already revealed flaws in
the traditional ethic that make it a weak defence against those who lack respect
for individual lives. A sounder, if less clear-cut, ethic may in the long run
provide a firmer ground for resisting unjustifiable killing.
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01 July 2009
Taking Life: Humans
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