Modern medicine has been enormously successful in saving and extending lives. No one can reasonably regret this, but it exacerbates a problem which has always been with us, namely, how to treat those who are alive, but not living lives they think worthwhile, and have no prospects for anything better. Under current Canadian law, one who wants to die can either commit suicide, or, if he is competent, refuse all treatment necessary for life. But one does not always have the ability and opportunity to do the former, and the latter does not always bring about a gentle and easy death for either the patient or his loved ones. The question thus arises as to whether we should make legal provision for assisted suicide providing the means of suicide and active voluntary euthanasia killing the patient on request. The Canadian Law Reform Commission1 has recently taken up this question, and answered with a clear “No”. I shall argue in what follows that the answer should be “Yes”.
2. Current legal situation2
At one time, it was not unusual to find suicide and attempted suicide among criminal offences in civilized countries. For example, under English law, suicide was regarded as a felony, punishable by interment in a highway with a stake driven through the body and the forfeiture of lands, goods, and chattels to the king. France was the first country in Europe to legalize suicide in 1790, and Germany soon followed suit, as did the rest of the continent. In England, however, the law persisted until 1914, when sanctions against the body and property of a suicide were removed, but the attempt to commit suicide was still regarded as an attempt to commit a felony and punishable by fine or up to two years imprisonment. In 1961, England legalized suicide and attempted suicide, and Canada did the same in 1972. Suicide was illegal in several American colonies, requiring governmental forfeiture of a suicide’s personal estate3, and until early in this century, many states still deemed suicide illegal or felonious.4 Today, however, suicide in not illegal in any state5, but attempted suicide continues to be in a few6. This, however, is commonly regarded as an anachronism, not a law to be taken seriously. In modern times, both suicide and attempted suicide are not criminal events in any civilized society.
The matter, however, stands differently with assisted suicide and active voluntary euthanasia. Comparative law on assisted suicide reveals the full spectrum of possible opinions. In France and Germany, assisted suicide is not criminal. If it is not a crime to commit suicide, so the legislators there argued, it could not be a crime to assist one in doing so. In Switzerland, assisted suicide is punishable if it is caused by “selfish motives”, but not by altruistic ones7. In Italy, and according to the New York Penal Code, assisted suicide is criminal whatever the motive, but punishable more heavily if the suicide is successful8. Finally, in Canada and (with the exception of Texas9) the United States, assisted suicide is equally criminal regardless of motive and success of outcome. In Canada it is a grave crime, punishable by up to fifteen years imprisonment. In the United States, it is also typically regarded as a serious offence, and treated either as murder10, voluntary manslaughter11, or a separate crime12. Some state legislatures which have characterized assisted suicide as a separate crime treat the crime as involuntary manslaughter13, others treat it as a minor offence and require only the payment of a fine14.
We likewise meet a variety of different legal attitudes to active voluntary euthanasia throughout the world. Continental Europe has moved away from judging crimes exclusively by the type of act done, and towards taking into account the type of actor who does the deed. Thus the motive which prompted the act and manner of its performance becomes relevant as aggravating or mitigating elements, and out of this has arisen a classification of different types of homicide. A homicide done from a highly reprehensible motive or in a particularly reprehensible way indicates a bad character in the actor, and is most severely punished; where these features are absent, or if (as in the typical case of active voluntary euthanasia) the motive is altruistic and the delivery of death humane, the punishment is more lenient. This approach is taken by the legal systems of Switzerland and Germany. Under Swiss law, judges are vested with broad discretion to classify cases with the various types of homicide the law specifies. Under German law, the statutes enumerate motives which bring acts within graver or milder types of homicide. Both these codes also allow for reduction in penalty in the case of mitigating circumstances, and mercy killers are likely to benefit from this as well15.
Neither of the German or Swiss provisions, however, specifies that the motive of mercy or the patient’s condition is a mitigating factor in crime or punishment. But other countries have done this. The Norwegian Penal Code of 1902 treats the mercy-motivated killing of a hopelessly ill person like killing on request. The penalty for punishment is not specified, but the judge is given discretion to reduce the punishment below the minimum which would otherwise be applicable16. Similar reductions in penalty are allowed in the Russian Penal Code of 190317 and the Polish Penal Code of 193218. The Penal Code of Uruguay of 1933 goes further than any of the above, and allows for a total exculpation19
In sharp contrast to the above approaches, the law of homicide in North America, along with that of Great Britain and Australia, depends entirely on the factors of premeditation and deliberation; motive and the request of the victim are irrelevant to the classification of the murder and degree of punishment. Thus active voluntary euthanasia, being usually a deliberate and premeditated act, will typically constitute the gravest type of homicide. In practice, however, the law on the books is flouted: in cases of active voluntary euthanasia (as well as assisted suicide), we find clear legal subterfuges such as lack of proof of causation and temporary insanity given decisive weight, officials slow to indict, courts reluctant to convict, and judges lenient in sentencing20. We must now ask whether the law on active voluntary euthanasia and assisted suicide should be brought into line with the actual behaviour of courts and law-enforcement agencies.
The Netherlands has taken the lead in doing this. While euthanasia is currently prohibited there under the criminal code, as a separate crime from homicide or manslaughter carrying a maximum 12 year prison sentence, courts have winked at the practice. Euthanasia has been performed openly since 1970, and between 6,000 and 10,000 of Holland’s 120,000 deaths each year are estimated to be doctor-assisted suicide or euthanasia21. In September 1987 the Dutch Cabinet put forward a proposal to formalize the practice by making legal exceptions to the criminal law. Under this proposal, to be considered by the Dutch Parliament in 1988, the euthanasia law would remain on the books to deter persons from cutting corners on the guidelines, but changes would be made in “medical law” which would allow doctors to perform euthanasia and assisted suicide when:
- the patient repeatedly and consistently, over a period of time, requests death;
- the doctor goes through full consultation with the patient, the patient’s family, and at least one other doctor;
- the patient’s suffering cannot be averted by any accepted medical treatment; and
- the illness is terminal, although death need not be imminent.22
Should Canada follow this lead of narrowing the gap between law and practice, and if so, how exactly should the legal accommodation be made?
3. Arguments for assisted suicide and active voluntary euthanasia
The logic of the debate is this. There is, I will contend, and as is generally admitted, a prima faciecase for legalizing assisted suicide and active voluntary euthanasia. There is, similarly uncontroversially, a long list of objections to doing so. Now if all the objections can be answered, the pro-legalization case will be left in sole possession of the field, and we should act accordingly. On the other hand, if any of the objections is good, that case will be cancelled, and we should keep the legal door to the practices in question shut. I will argue that none of the objections is good. But let me begin by providing the prima facie case for assisted suicide and active voluntary euthanasia. There are four arguments designed to do this.
The first and simplest appeals to the value of liberty. Freedom, qua freedom, is a good; restraint, quarestraint, an evil23. This forms the basis of the common view that individuals can do as they want unless there are weighty reasons which dictate otherwise. Restrictions on liberty are certainly sometimes justifiable, but the onus of justification always lies on their defenders. Thus, given that prohibiting assisted suicide and active voluntary euthanasia are restrictions on liberty patients are prevented from getting what they want, and physicians from providing it there is a standing prima facie case for legalizing those practices, and it is up to their opponents to show why they should be forbidden24.
This prima facie case can be strengthened by appealing to two other equally uncontroversial values: the prevention of suffering and the dignity of the individual. Patients sometimes are in medical conditions for which there is no relief, and awaiting them is a future filled with suffering, or the indignity of the disintegration of their bodily or mental functions, or both. They also often want to avoid these evils, and shield loved ones from their sight. But it is also sometimes the case that the only way to do this is to die, and the only way to do that is to receive some assistance in the form of help in committing suicide or active voluntary euthanasia. If we now grant, as we surely must, that people have a prima facie right to preserve their dignity and minimize their suffering and that of others, we again get a strong presumption in favour of making some kind of legal allowance for assisted suicide and active voluntary euthanasia25.
Finally, I turn to a pair of arguments which proceed by alleging there is an inconsistency between what the law permits and prohibits, and since it is right to permit what it does, the prohibition should be removed. The first of these begins with the fact that passive voluntary euthanasia is allowed by the law: a competent and fully informed person may, for whatever reason, appropriately refuse any treatment necessary for life26. Thus, if active voluntary euthanasia is to be legally proscribed, there must be some relevant difference between killing and letting die. It is, however, not clear there is: if both the intention to bring about a death and the certainty of outcome death coming about are the same in each, it is hard to see how there could be any morally relevant difference between killing a patient and letting him die27. It does not follow that we can appropriately aid a person in securing death whenever he can refuse treatment, for he may refuse treatment for a bad reason, and while there may be nothing immoral or properly preventable about him harming himself, there is something wrong in our assisting him in doing so. However, it does follow that if he has a good reason for refusing treatment if, say, his future is brief and only holds pain and indignity there is a presumption that there is nothing wrong with our assisting him, and the law should not stand in our way either to help him kill himself or to kill him on his authority28.
My second argument under this head runs along exactly similar lines, and begins with the fact that suicide is not a criminal offence. This does not mean we should not prevent suicide when we can. In most cases we certainly should, for suicides typically have very bad reasons for wanting to die, and need our help. But suicide cannot be properly prevented in all cases. If a person has a good reason for death if, for instance, he is elderly and terminal and suffering it would be unspeakably meddlesome to interfere. But if so, we get the presumption that in just those circumstances in which we should not prevent a person from bringing about his won death, we can appropriately help him do so by either assisting his suicide or delivering active voluntary euthanasia. If a person has a good reason to die, and does not have the means to commit suicide, he should, prima facie, be allowed to request and receive those means from those willing to provide them, and if he is too weak to swallow a pill or inject himself, to authorize others to deliver the fatal dose. Thus the right to suicide under certain conditions entails the prima facie right to assisted suicide and active voluntary euthanasia29.
This completes the prima facie case for the legalization of assisted suicide and active voluntary euthanasia. Insofar as we value liberty, the prevention of suffering, and dignity, and admit that sometimes people have a good reason for wanting to die and need help to do so all surely uncontroversial claims there is no avoiding the conclusion that the burden of proof lies on those who wish to oppose legalizing the practices in question But this also a burden which their opponents have taken up at times with almost gleeful enthusiasm, and have provided a formidable list of obstacles to those practices. It is to these that we must now turn.
4. Arguments against assisted suicide and active voluntary euthanasia
One objection to assisted suicide and active voluntary euthanasia is that they involve killing, and all killing is morally wrong. This principle may be based on religious views (e.g., the sixth commandment) or maintained on purely secular grounds. But whatever its basis, we cannot appeal to this unqualified principle to condemn the practices in question unless we are prepared to condemn, for example, the killing of steers for food, fish for sport, trees for paper, weeds to beautify a garden, mosquitoes for comfort, and so forth.
Few are prepared to accept such consequences. But if we are not, our task is to find some version of the sanctity of life principle which will allow instances of killing we want to allow, while at the same time excluding assisted suicide and active voluntary euthanasia. This, however, is not easy to do. One might try to avoid the above repugnant consequences by restricting the principle to human beings. The question immediately arises as to whether this is an arbitrary restriction, but I will not pursue that here30. It is sufficient to notice that the restricted principle still excludes too much, prohibiting as it does killing in self-defense and to protect the defenceless. Nor would it help to stipulate that it is the killing of innocent human beings which is morally prohibited. For not only is it strained to morally proscribe assisted suicide and active voluntary euthanasia because they involve “taking an innocent life”, the principle itself is problematical. We do not want to disallow killing insane (and therefore presumably innocent) attackers, and it is surely highly controversial to condemn bombing enemy civilian populations in wartime when not doing so would result in the heavier bombing of our own.
One could continue doing moral carpentry, and tack further qualifications onto the sanctity of life principle to secure just the conclusions one wants. One could, for example, specify further that killing innocent but insane aggressors and innocent civilians in wartime are not absolutely prohibited, but that assisted suicide and active voluntary euthanasia nonetheless are. But then the principle starts to appear to arbitrarily exclude those practices, and we must ask what reason there is for excluding them at all. There are three possible grounds: assisted suicide and active voluntary euthanasia violate some duty to God, or to ourself, or to others. I will take these alternatives in turn.
Duty to God
It is sometimes claimed that assisted suicide and active voluntary euthanasia are wrong because they violate the will of God. But what reasons exactly are there for this view? Confining our attention to the Judaic-Christian tradition31, which is perhaps the main source of religious opposition to these practices, at least in the Western World, not one line in the Bible explicitly forbids them. The claim that they violate the will of God must therefore be an inference from some other theological precepts. What? The sixth commandment is a natural and oft-cited candidate. But if we take it to read “Thou shalt not kill”, we immediately meet all the problems of what precisely is permitted and forbidden just canvassed. And if we take it to read “Thou shalt not commit murder”, we drain it of all informational content, for murder is wrongful killing, and while it is certainly true that we should not do any wrongful killing, what exactly constitutes such killing is left unclear.
Another possible theological ground for the wrongness of assisted suicide and active voluntary euthanasia is that they interfere with the providential order of things32. On this view, each person has an allotted time to die, and to modify that is to wrongfully meddle. Anyone who presses this line of argument, however, must claim that there is some nonarbitrary way of identifying the appropriate time of a person’s death. But how exactly would one go about defending the claim that a certain time is or is not the time providence has ordained that he should die? It is not easy to see what answer can be given to this question. If none can be, then one is in no position to say that assisted suicide and active voluntary euthanasia cut short a person’s providentially allotted years, and so could not claim that their wrongness consists in doing that. But even if one could identify the appropriate time in some unproblematical way, a proponent of the above objection has to be willing to condemn not merely any measures which bring a person’s life to an end before that time, but also any which prolong a person’s life beyond it; for such things likewise interfere with providence by modifying a person’s allotted years. Thus, for example, if it should turn out that a balanced diet, regular exercise, and expert medical attention inordinately lengthen life, those things must be condemned as immoral and irreligious.
A weaker but more plausible view has it that not just any interference in the providential order of things is wrong, but rather any which destroys or ill-uses God’s property which, it is assumed, we all are33 is. On this account, it would not be wrong to prolong life, for there is no objection to taking good care of God’s property. There would, however, be objection to destroying human life, for that would be to take bad care of God’s property34.
The first thing to be said about this argument is that, as in the former one, anyone who uses it must be prepared to condemn a whole lot more than just assisted suicide and active voluntary euthanasia. There can be no serious doubt that smoking, drinking, avoiding exercise, and over-eating have shortened more lives than those practices ever have or are likely to. It is hard to see how a proponent of the above argument can rightly single out assisted suicide and active voluntary euthanasia for censure and turn a blind eye to these common activities.
Second, this argument gains much of its persuasive force by appealing to the notion of property rights. In particular, it relies on the claim that it is wrong to destroy the property of another without the consent of the other. But this appeal will not serve those who make it in the simple way they seem to think it will. It is true that it is generally wrong to destroy the property of another without his consent; it is not true that it is always wrong to do so. For example, if one is driving another’s automobile, and is faced with a choice between destroying the car or hitting a pedestrian, it is surely not wrong to do the former. Or again, if one can only prevent the spread of a fire which is bound to cause loss of life by destroying another’s house, it is certainly not wrong to destroy it. The ordinary notion of property rights is not such as to absolutely prohibit the destruction of property, without the consent of the owner, by others. We typically think we can destroy the property of others to avoid or reduce great suffering. It remains to be shown why God’s property should be treated on different principles. But whether or not this can be shown, it is clear that the notion of property rights required by this argument is much stronger than our usual one.
Third, even if it can be demonstrated that God has property rights of the appropriate strength, one cannot help thinking that it must be a cruel God that insists on them when doing so so clearly occasions such great suffering unless, of course, it can be shown that the suffering has point. And this has sometimes been argued35. It is claimed that the endurance of suffering enables us to develop or exhibit certain virtues such as patience, fortitude, courage, and so forth. This is undoubtedly so; but to argue that assisted suicide and active voluntary euthanasia ought not to be allowed because they would reduce suffering, and so diminish the possibility of spiritual growth, is a strange argument. It would seem to follow from it that the use of anaesthetics, aspirins, and antacids are equally wrong. One may reply to this by saying that there is some unique value to be obtained from suffering unto death which makes assisted suicide and active voluntary euthanasia special cases. But if so, then we should mourn those who die peaceful deaths, for they are thereby deprived of this special value. It is not clear how one can avoid these consequences and at the same time maintain that a God who insists that human beings cannot be mercifully released from suffering is not a cruel one. Thus it seems one who finds those consequences unacceptable and yet believes in a noncruel God could not consistently believe that assisted suicide and active voluntary euthanasia are contrary to His will.
Duty to ourself
I will now turn to the claim that assisted suicide and active voluntary euthanasia are wrong because we thereby violate a duty to ourself. The classical source of this argument is Immanuel Kant, who regarded suicide as wrong for this reason, and the extension to assisted suicide and active voluntary euthanasia is easy and natural. Kant has two basic lines of argument to support his view. The first alleges some kind of inconsistency in the act of suicide. In his Groundwork of the Metaphysics of Morals, Kant’s demonstration of this begins with a version of his supreme principle of morality, the Categorical Imperative: “Act as if the maxim of your action were to become through your will a universal law of nature.”36. Kant then contends that one who commits suicide when life threatens more evil than it promises pleasure acts on the maxim: “From self-love I make it my principle to shorten my life if its continuance threatens more evil than it promises pleasure.” But, he goes on, this cannot be willed to be a universal law of nature, for the purpose of self-love is to preserve life, and it would be self-contradictory to have a system of nature whereby the very same feeling whose function is to stimulate the preservation of life should stimulate the termination of it37. The fatal flaw in this argument, however, is that it relies on the assumption that God or Nature has assigned self-love the natural purpose of the preservation of life, and that is gratuitous38. But if we expunge this unwarranted teleology from the concept of self-love, and understand it (as is more natural and common) to refer merely to the desire to get pleasure and avoid pain, then no contradiction results: there is no inconsistency in supposing that desire to drive us to improve our condition when we can, and also to drive us to end it when we cannot39.
In his Lectures on Ethics, Kant again claims an inconsistency in the act of suicide, but in a different way. Kant here finds paradox in using free will to destroy itself by destroying that which is its condition, viz., the body, and in using life to destroy life40. But there is no more contradiction in using these things to end one’s pain, with the result that one no longer has them, than there is in using one’s money to buy something, with the result that one no longer has any money. The mark of the self-contradictory is unintelligibility, and there is nothing unintelligible about a person using his life to freely will the end of his life (and hence freedom) when his life offers more pain than pleasure.
The second basic line of argument Kant uses to show the wrongness of suicide begins with his second formulation of the supreme principle of morality, which he claims to be strictly equivalent to the Categorical Imperative, only emphasizing a different aspect of it, The Formula of the End in Itself: “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”41
Kant then argues that if we commit suicide when life threatens to hold more pain than pleasure, we are treating ourselves as mere means in that we regard our lives as valuable only for the sake of pleasure42. The difficulty with this is that Kant never proves that humanity is an end in the strong sense required by the argument. One may nod approvingly at the view that humanity is an end in that we cannot use the lives of other human beings merely as means to our pleasure. But the claim that it is an end in that we cannot treat our own lives as valuable only insofar as we can have certain experiences is neither argued for nor self-evident. Yet it is precisely that view which Kant requires for his demonstration43.
Not only do Kant’s arguments fail to show that suicide, assisted suicide, and active voluntary euthanasia violate a duty to ourselves, there is reason to think that any arguments to that end must fail because the concept of a duty to ourselves is conceptually incoherent. To say that A has a duty to B is to say that B has a right against A. But now to have a right is to have a claim which the right-holder can insist on or waive. On the other hand, no one can release himself from an obligation. No difficulty arises as long as A and B are different persons, but if they are the same, as they are in the case of a duty to oneself, we are led to a contradiction: a person both can and cannot release himself from an obligation44. This must give us considerable sympathy for Mill’s view:
Self-regarding faults… are not properly immoralities, and to whatever pitch they may be carried, do not constitute wickedness. They may be proofs of any amount of folly, or want of personal dignity and self-respect; but they are only a subject of moral reprobation when they involve a breach of duty to others, for whose sake the individual is bound to have care for himself. What are called duties to ourselves are not socially obligatory, unless circumstances render them at the same time duties to others….45
Duty to others
I now turn to consider whether the wrongness of assisted suicide and active voluntary euthanasia can consist in their violating some duty towards other human beings. One who claims it does may have one or both of two sets of duties in mind. The first is a duty to some particular person or persons such as, for example, a wife and children. The second is a duty not to any such specific person or persons, but to society at large: the duty to be socially useful to contribute to progress, growth and the gross national product(46).
But it is very doubtful that one can convincingly argue that assisted suicide and active voluntary euthanasia are always wrong because they violate one or the other of these duties. It is wrong to deny that people frequently have duties in the first sense; but since not everyone has dependents, one cannot claim that the wrongness of these practices always consists in violating such duties. We can try to get around this difficulty by appealing to the second sense in which one may be said to have a duty to others; but then it is not so hard to deny that people have such duties to society at large. One who claims they do needs to support that claim with an argument, and it is not clear in what it would consist. Both accounts also face two further difficulties. First, those who are suitable candidates for assisted suicide and active voluntary euthanasia are not typically going to be in a position to render very many services to others. If anything, they will be a burden to themselves and to others, and one cannot be said to be under a duty to do what one cannot do. Second, even if one could render the services in question, one cannot always be morally required to do so. There are limits to our duties to others, and it is plausible to suggest that the medical distress suffered by the patients under consideration typically cancels any such duties47.
But even if assisted suicide and active voluntary euthanasia were shown to be immoral in any of the above sense, it would not follow without considerable further argument that they should be illegal. We might view them as many currently do homosexuality and adultery: immoral, wicked, and sinful, perhaps, but nonetheless not the law’s business. More specifically still, being immoral by way of violating some duty to God or ourselves has no adverse social effects, i.e., it does not harm the principals, or others, or in any other way endanger society. It is thus hard to see what gains could come from criminalizing the behaviour which would offset the evils of the deprivation of freedom and the misery of punishment the criminalization would entail. And any demonstration that assisted suicide and active voluntary euthanasia are immoral by way of violating duties to others likewise requires it to be shown that the advantages of making the conduct illegal outweigh the evils of doing so before criminalization would be apt.
On the other hand, we cannot infer from the fact that assisted suicide and active voluntary euthanasia are not in themselves immoral that they should be legalized, for it may be that their legalization will not serve its intended purpose, or will be unnecessary, or attended with countervailing dangers and drawbacks. It is on precisely such considerations that the Canadian Law Reform Commission, along with most legal writers who oppose the practices in question, rely, and I now turn to the objections which have been assembled under this head.
5. Objections to legalization of assisted suicide and active voluntary euthanasia
There is always the possibility of an incorrect diagnosis or the discovery of a treatment which will permit either survival or recovery48.
While none of these things can be ruled out as absolutely impossible, they can often be ruled out as impossible for all practical purposes. It is frequently beyond all reasonable doubt that the diagnosis is mistaken or some cure will not be discovered in time to help, and it is not clear why this should not be sufficient. The law has never taken a “pigs might fly” attitude towards the risks attendant on any activity. We need only to establish “guilt beyond reasonable doubt” to send a person to prison or even to his execution, and it is not possible to require more without making the enforcement of the law impossible. Why a more stringent standard should be demanded in the cases of assisted suicide and active voluntary euthanasia yet needs to be explained. Moreover, when the likelihood of being restored to what one would regard as a worthwhile life is small, and that of enormous pain and degradation relievable only by death great, no one can plausibly say that the decision to die is an unreasonable one. But if so, respect for the autonomy of the individual requires that we not prohibit him from authorizing others to help put it into effect49.
We can never be absolutely sure that we have the patient’s voluntary and informed consent. If the request is made prior to the individual’s coming to be in a desperately bad way say in the form of a living will it cannot be considered binding because it is insufficiently informed. On the other hand, if the request is made when the individual is in a bad way, then the pain and drugs prevent him from making a fully rational decision. In either case, it is not possible to secure a death-request which would justify the deed50.
For reasons given in the reply to Objection 1, the demand for absolute certainty with which this objection begins is too strong. But even if we purge the complaint of that feature, it is still not good. It is indeed true that prior request ought not always be considered binding. Certainly it should not be if the individual subsequently renounces his decision. Again, if the individual alternately reaffirms and renounces his decision we may be in a quandary about what to do. But it cannot reasonably be claimed that a prior request can never be binding because it is always insufficiently informed. If the individual reaffirms his decision under pain, after the first shock of it has passed, we have very good grounds for claiming to know his fixed and settled desire. Again, if the individual falls into a state which does not permit him to either reaffirm or renounce his decision, and is not expected to recover from that state, then we have the same reason to act on his prior death-request as we would subsequently have to distribute his estate in accordance with his will. In both cases, the request is important, irrevocable, and one that may not have been made if the person could foresee the future. But to deny the bindingness of such requests is to say that one should not be permitted to make such decisions, and that is surely unacceptable.
When the individual makes the death-request in pain and under the influence of narcotics, it must be admitted that one in such a state is not in the best condition to make a fully rational decision. But it must also be granted that he is in an excellent position to say whether or not he wants to continue living in such a state. It may also be that such an existence is the best he can expect, and there will come a time when it is quite reasonable to tell a patient that he will adjust to his condition, and a time when it is unreasonable to hold out any hope for any improvement. It is hard to see why the appropriate facts of this sort, conjoined with the patient’s judgment that his present state is intolerable, should not yield a request for death that is sufficient to justify action51.
The chronically and terminally ill are often vulnerable and feel themselves to be (and often are) a burden to others. Many of the ill, however, are not tired of life and do not want to die. But if assisted suicide and active voluntary euthanasia were readily available, they might feel obligated to opt for death, and relatives or others in whose care they are, who often would just as soon be rid of the burden, may consciously or unconsciously exert pressures, in a way difficult to detect and avoid, to request assistance in committing suicide and active voluntary euthanasia52.
It is unrealistic to suppose that some such tragedies will not occur. But that should not be taken as a decisive objection to the practices in question. We allow policemen to carry guns and young people to choose their marriage partners, and tragedies result from these, too. But we accept such tragedies, however regretfully, as a part of the price of policies which are on the whole beneficial, and a similar line is plausible in the case of assisted suicide and active voluntary euthanasia. It is a mistake to think that if we do not liberalize the law no tragedies will occur. The pain and degradation which euthanasia laws address will contiue; the sick will continue occasionally to attempt suicide in ways which are neither painless to themselves or others nor always successful; friends and relatives will be faced with the terrible choice of either standing by and watching the suffering and disintegration of a loved one, or acting in a way which is contrary to law and for which they have no expertise. We must also be careful not to exaggerate the susceptibility of persons. If one is competent to make a legally binding death-request, one will also typically be able to resist the pressures in question; if he cannot do the latter, he will typically not be able to do the former. Nor should we presuppose that the pressures in question cannot be adequately counteracted by informal means such as counselling and discussion. If they can be and there is no reason to think otherwise it would certainly be more appropriate to so control them, for we do not thereby deprive everyone of the right to death in order to protect a few who could be protected in some other way.
Legalizing assisted suicide and active voluntary euthanasia today will lead to active nonvoluntary euthanasia tomorrow, and that will lead to active nonvoluntary euthanasia tomorrow, and that will lead to active involuntary euthanasia the day after: the antisocial, the ethnically unattractive, the politically deviant, the aged, etc., will all become potential victims. Thus if we do not draw the life where it is, we will not be able to prevent substantial harm to others. This is the famous “Slippery Slope” or “Wedge” or “Camel’s Nose” argument53.
This argument is singularly implausible if one who makes it means that there is a logical connection between the killings in question such that one who endorses the first cannot without inconsistency refuse to endorse the last54. The fact that in one case a person is killed in his own interest because he requests it, whereas in the other a person is killed in the interests of others without (or contrary to) his consent, is surely a morally relevant difference. Since this is so, the question “How can we draw the line?” should not perplex one for long. No one thinks that making killing in self-defense an exception to criminal homicide starts one on a slippery slope which logically must end in the abolition of the crime of murder; no one should think the same about legalizing voluntary euthanasia.
A more common and plausible way of understanding the objection is to take it as alleging anempirical connection between the killings in question55. If, however, the claim is an empirical one, it stands in need of evidence. What is the evidence that a policy of allowing death on request, begun in good faith and motivates by compassion, will lead to unwanted killings? The prime evidence typically cited is the Nazi experience56. But there is no parity between the cases; they have in common the name “euthanasia”, but the name stands for quite different policies. The Nazi program of “euthanasia” was neither voluntary nor based on compassion; it was, rather, motivate by the desire to remove “useless eaters” and preserve the purity of the Volk, and hence was the result of a vicious and racist ideology already firmly in place, not the unwanted and unexpected upshot of an intrinsically desirable social reform57. Not only does the Nazi analogy fail to support the contention that killings, once permitted, cannot be psychologically contained, other analogies point in the opposite direction. The Greeks practiced infanticide, the Eskimos senicide, active voluntary euthanasia has been openly condoned in the Netherlands since 1970, and we have always allowed killing in self-defense. Yet there is no reason to think that any of these practices have unhealthily weakened our psychological resistance to killing. In the light of this, it appears arbitrary to think that assisted suicide and active voluntary euthanasia will open the floodgates. We are thus left in the end with the mere suspicion that they may be the thin end of the wedge, and this is not sufficient, for what social policy could not be opposed on that ground?58
The proposed legislation would make it easier to commit malevolent homicide. Many people want, and badly want, to be rid of others, and the deaths of those persons could be brought about under the cover of voluntary euthanasia59.
This objection applies with equal force to allowing killing in self-defense as non-criminal homicide. So, insofar as it is not used to advocate the repeal of that classification, its application to the case of voluntary euthanasia is discriminatory. With certain safeguards (e.g., suitable witnessing procedures), it would also be difficult to pass murder off as euthanasia. Certainly that would be no easier and probably a good deal harder to do than to pass off murder as self-defense or suicide. Since this is so, it is unlikely that legalizing voluntary euthanasia will cause an increase in the incidence of murder or of undetected murder60.
A patient seeking assisted suicide or active voluntary euthanasia clearly does not wish to prolong his agony, but seeks a quick end to his suffering. Yet any proposal for the legalization of these practices must necessarily include some process of ensuring that his decision is voluntary and informed. Any such procedures would have to be carefully followed and the results painstakingly confirmed. All this would demand time, and by wrapping the decision-making process in red tape, create the very delays which those who advocate the practices seek to avoid61.
To ensure that assisted suicide and active voluntary euthanasia are not misapplied, time-consuming procedures must be followed. But to conclude from this that these practices should not be legalized is like arguing that no one should get a driver’s license or unemployment benefits, because it would be irresponsible to hand them out without verifying the information, and that means that people cannot get them as speedily as they wish. The unavoidable necessity of delaying assisted suicide and active voluntary euthanasia is no reason for denying them altogether. We must also not exaggerate the time and red tape that need be involved in following procedures which are reasonable safeguards against misuse and abuse62.
The medical profession exists to provide important professional services, and neither wants to be nor should be involved in the kind of bureaucratic activity involved in responsibly administering the delivery of assisted suicide and active voluntary euthanasia63.
This objection begs the question by assuming that assisted suicide and active voluntary euthanasia are not “important professional services”. But that is false. It is important to most people to die painlessly and with dignity, and engineering such a death by way of assisting suicide or delivering active voluntary euthanasia is a matter calling for medical expertise. Grant this, and the objection that we should not legalize the practices because of the paperwork involved which could not be any greater than that involved in determinations of competency is embarrassingly lame.
The extraordinary development of palliative care and pain control in recent years is a more positive and safer response to the problems than assisted suicide or active voluntary euthanasia64.
The hospice movement and advances in pain-control are certainly welcome developments which do something to reduce the need for legalizing assisted suicide and active voluntary euthanasia. But they do not remove it altogether, and we should not view these things as alternatives. There are indeed drugs which, if properly administered, can control pain. Nonetheless, insofar as the patient remains conscious, there are other forms of distress such as the terror of breathlessness, uncontrollable vomiting, paralysis, incontinence, inability to swallow and sheer weakness and helplessness which cannot always be adequately controlled. We must also remember that it is often difficult to arrive at and maintain the correct dosage of drugs under the most conscientious surveillance of patients, and the practical realities of contemporary medical care mean the patients often get less than this. However, even if pain and distress were not a problem, there is frequently a strong fear on the part of patients of the abject dependency and degradation involved in the loss of bodily and mental functions which often accompany the dying process, and no amount of care services can remove these65.
The legalization of assisted suicide and active voluntary euthanasia will discourage the search for new cures and treatments for the terminally ill patient66.
Mill once commented that there is no difficulty in showing any policy to work ill if we conjoin idiocy with it; and if we suppose that people will accept assisted suicide and active voluntary euthanasia as substitutes for treatments and cures, there is no difficulty in showing a serious problem with their legalization. But if one is to look askance at these practices for this reason, one must do so at a host of other things as well, such as improvements in palliative care, fire and theft insurance, and airbags in automobiles. For all these likewise lessen the impact of unwanted events, and so, by parity of reasoning, should also be prohibited because they discourage the search for ways to prevent those unwanted events altogether. But this is surely absurd; there is no reason to think these mitigating measures should have that effect, and it remains to be shown why we should think that legalizing assisted suicide and active voluntary euthanasia would have.
Patients who struggle to recover have better recovery rates than those who have given up hope. The availability of assisted suicide and active voluntary euthanasia will encourage patients to give up, and so significantly decrease their chances for recovery67.
On the face of it, this argument applies with equal force against allowing people to divorce, drop out of college, or refuse medical treatment, for removing those options would likewise make people struggle with sometimes good effect. But even if we limit the scope of the argument to assisted suicide and active voluntary euthanasia, it is not a good one. One cannot argue that the struggle would be beneficial in all cases. Nor could one realistically argue that medical prognoses are so fallible that it may be valuable in any given case. The prohibition must therefore be based on the claim that it would be beneficial on the whole. There is, however, no evidence to suppose that this is so. But even if there were, criminalizing the conduct for this reason relies on a questionable theory of interference. Certainly, society may interfere to prevent individuals from harming others. It is more problematical, but also arguable, that it may interfere to prevent unencumbered individuals from harming themselves. This argument, however, depends on the still stronger view that society can prevent some unencumbered individuals from acting in their interest in order to prevent other unencumbered individuals from acting to their detriment, and this principle seems impossibly strong.
This brings us to an end of our review of the arguments against assisted suicide and active voluntary euthanasia68. Two things are evident: the arguments against these practices are very weak, and each applies with equal force against some other well-entrenched practice or practices, most notably passive voluntary euthanasia (all except Objection 5) and killing in self-defense (Objections 4 and 5). Given the latter, if we do not allow the arguments to rule out these practices, we should not let them rule out assisted suicide and active voluntary euthanasia. And, given the former, we should not allow the arguments to rule out those practices. I thus conclude that we have failed to find any objection sufficient to cancel the prima facie case in favour of assisted suicide and active voluntary euthanasia, and hence that, unless some such objection is produced, legal provision should be made for those practices. Two questions remain: “How should the legal space be made?”, and “Who should be eligible for assisted death?”. I now turn to these.
6. Assisted suicide and active voluntary euthanasia and the law
Once we grant that society should make provision for assisted suicide and active voluntary euthanasia, the question arises as to how. One approach, which is favoured by the Canadian Law Reform Commission in its Working Paper and Final Report on the topic, is to retain the current prohibitions of these practices, but to (continue to) show routine leniency towards the acts69. We thereby allow in some measure for assisted suicide and active voluntary euthanasia, but avoid the perils and difficulties of drafting enabling legislation. This approach, however, is faced with overwhelming problems. By self-consciously allowing the Law in Action to diverge from the Law on the Books, we give conflicting messages to the public, and this has a number of serious effects. First, given that doctors are still exposed to very stiff potential penalties, they will be understandably reluctant to help, and this leaves patients without any assurance of getting the help they want and have a right to. Second, there is no guarantee that all jurisdictions will exhibit the same degree of blindness to the prohibited practices, and so we have the spectre of the unequal application of the laws. Finally, in a way which needs no further elaboration, we foster disrespect for the law.
It thus appears that we need a more formal accommodation of the practices of assisted suicide and active voluntary euthanasia, and there are a number of ways of providing this.
(1) The weakest would be to leave the prohibitions of the law exactly as they are but require the written authorization of the Attorney General or his regional representative (or the equivalent in countries without Attorneys General) before prosecution can proceed.
(2) A stronger measure would be to follow the lead of continental legislation and create a special category for compassionate murder with reduced penalties, or to formally allow for the reduction or entire setting aside of penalties in cases of homicide prompted by compassionate motives.
(3) Still stronger would be to formally allow the motive of mercy to be a complete defense against the charge of murder.
(4) Finally, we could enact a Bill which would enable a patient to authorize a physician to assist him in committing suicide or to perform active voluntary euthanasia under carefully specified circumstances.
I will argue that anything short of (4) will be inadequate. However (1)(3) have often been rejected for bad reasons, and I now want to winnow those out. My motive in doing this is partly philosophic purity no view, however bad, should be rejected for bad reasons and partly pragmatic: any of those accommodations would be an improvement over the current North American legal situation, and on the principle that half a loaf is better than none, I want to clear obstacles out of their way.
In its Working Paper, the Canadian Law Reform Commission recommended (1) in the case of assisted suicide70 (but not active voluntary euthanasia, though the extension to that would be easy and natural, given that there is often at best only a technical difference between the two), but backed away from even this mild liberalization of the law in its Final Report, offering three reasons. First, decisions to prosecute would be open to the suspicion of political favouritism. Second, this proposal could be expected to lead to differences in law-enforcement, and thus give the impression that life does not have the same value everywhere in Canada. Third, since the offence of assisted suicide is almost never prosecuted, requiring an additional procedure would amount to its de facto abolition71.
These are very bad reasons. It would be remarkable if the fear expressed in the first were over theactual misuse of political office. The decision to prosecute any crime is superintended by the Attorney General’s office, and it is not clear why decisions to prosecute on the Attorney General’s own written authorization should be any more open to suspicion of corruption. The Canadian Law Reform Commission seems more concerned with the appearance of political favouritism. But, against this, we must bear in mind that decisions to prosecute assisted suicide and active voluntary euthanasia are not typically sensitive political decisions; certainly they are nothing like decisions concerning whether to prosecute under the hate literature provisions, which are already under the direct control of the Attorney General. We also should not care so much about the appearance of doing justice that we actually deny it.
The second proffered reason is likewise objectionable. There is no reason to suppose that there would be any greater discrepancies in law enforcement here than in the case of decisions to enforce any other law, and it is no more important to give the impression that life does not differ in value in a country than it is to give the impression that property, injury, or freedom do not. So, unless we are to adopt the perfectly mad recommendation that the prosecutor’s office must be deprived of all powers of discretion, it is hard to take this objection to the proposal in question seriously. Finally, it is remarkable for the Canadian Law Reform Commission to reject this proposal on this ground and yet look favourably on the present policy of treating mercy killing as pure and simple murder in written law but allowing discretion in its prosecution72. The spectre of the unequal application of the law appears equally present in both cases.
The Commission’s third reason unjustifiably casts doubt on the competence of Attorneys General. The proposal in question will lead to the de facto abolition of the crime of assisted suicide only if no Attorney General will prosecute any case. But assuming that some cases should be prosecuted (otherwise there would be no reason to fear the de facto abolition), the failure to prosecute any cases at all must constitute incompetence on the part of Attorneys General. But the Commission cannot know in advance that all Attorneys General will be thus incompetent, and hence that the proposal in question will result in the abolition it predicts. Perhaps, however, the Commission merely fears (what is quite different) that there will be a drastic reduction in prosecutions. The fact that assisted suicide is hardly ever prosecuted, however, would seem to make that impossible. But even if that were the upshot, then either more cases are currently being prosecuted than should be, which would be a reason for adopting the proposal, or Attorneys General will not prosecute cases which they should, which again involves the gratuitous assumption of incompetency.
Proposal (2), to follow the lead of Continental European countries and create a special category for compassionate murder or formally permit leniency at the level of sentencing to allow for difference in motivation, is likewise rejected by the Canadian Law Reform Commission. It does not deny that from the point of view of justice, this proposal has substantial virtue inasmuch as it would remove the bizarre situation in which a death intentionally brought about from the motive of mercy is treated on an exact par as one from the motive of greed. Rather, the Commission presents two practical objections. It argues, first, that compassion is probably not the only motive which the law should recognize passion and political motivation are other candidates , and so to depart from the traditional view that motive is irrelevant in murder would require a review of the entire structure of the law on homicide. And, second, that determination of motivation is so difficult in the case of murder that we cannot ever say what the person’s true motive was with certainty or even probability(73).
These reasons are not convincing. The former presupposes that we should not remove any evils unless we also remove all broadly similar ones. But it is surely unacceptable to say that we should not do anything now if we cannot do everything now. On this view, law reform would have to be either very sweeping or nonexistence; our traditional gradualism is a much more reasonable approach. Nor is it plausible to argue that we should not try to take motivation into account because it is impossible to do so. It is remarkable to think that we can determine mens rea and premeditation with sufficient precision to send people to prison or their execution, but are wholly at sea when it comes to divining their motivation. Continental European countries have successfully used motivation as the key element in the law of homicide for some time now, and there is no reason to think we cannot do so as well74.
Proposal (3) is a significant strengthening over (2) inasmuch as it allows the motive of mercy as a complete defense against the charge of criminal homicide. This legislative suggestion has been put forward by the jurist Glanville Williams. On his proposal, the law
…would provide that no medical practitioner should be guilty of an offence in respect of an act done intentionally to accelerate the death of a patient who is seriously ill, unless it is proved that the act was not done in good faith with the consent of the patient and for the purpose of saving him from severe pain in an illness believed to be of an incurable and fatal character. Under this formula it would be for the physician, if charged, to show that the patient was seriously ill, but for the prosecution to prove that the physician acted from some motive other than the humanitarian one allowed to him by law75.
This proposal has two substantial advantages. It is a minimal change to the structure of our laws: the law already allows a plea of self-defense as a defense against criminal homicide, and this proposal is just an extension on that. It also provide the patient with access to assisted suicide and active voluntary euthanasia with a minimum of red tape. Facing it is the objection that there are inadequate safeguards against abuse and misuse, but I do not think these dangers sufficient to reject the proposal. As I contended earlier, the risk of abuse is almost certainly less than the acceptable degree of risk attendant on allowing self-defense as a defense against criminal homicide. There is also no reason for us to think that doctors cannot generally be relied on, both from the motives of conscientiousness with respect to good medical practice and fear of criminal prosecution or civil suits, to guard adequately against negligence.
However, the proposal, along with all the others we have discussed, falls short of the ideal. Under all the proposals, though in varying degrees, doctors who assist a patient to die put themselves at more than their everyday risk of legal repercussions; this is unfair to the doctor, and places in his way an obstacle to practicing medicine as he sees fit. This in turn has an adverse impact on the patient, who now has to rely on the courage and compassion of the doctor rather than have the right to demand release from an intolerable existence. If my earlier arguments are sound, however, it is exactly such a right that is due a patient, and nothing short of an euthanasia Bill as proposed in (4) will be sufficient to provide for that.
Numerous euthanasia Bills have been introduced in North American and Great Britain76, and while they differ in details, the basic idea is to provide for the delivery of active voluntary euthanasia (and this could be extended to cover assisted suicide) under carefully controlled circumstances. But facing all of these is the objection that they necessarily involve legal machinery which is so drawn out and complex that it will not provide the quick and easy death which is the whole point of euthanasia77. I have already argued in my reply to Objection 6 above that this is insufficient to cancel euthanasia legislation altogether; the only question is whether it should move us to favour Williams’s method of implementing it. I do not think it should. Not only does that view have the objections just discussed, it is not clear it will do any better in this particular. Under that proposal, doctors are under no legal obligation to ensure that their patients have a fixed and settled desire to die, have not been pressured by their families, and are beyond medical help, prior to assisting them to die; nor are they under any obligation to keep documented records of any such investigations they may make. But they surely will, and be well advised to, given the ever-present threat of legal action, and it is not clear why anyone should think that such prudentially-motivated investigations and record-keeping will be less time-consuming and inconvenient to the patient or physician than those required by any reasonable Bill. Indeed, a clear specification of what the law requires together with the establishment of legal and medical procedures, especially once the mechanism becomes well-greased, may speed and simplify the process.
It is not my intention to draft a specimen Bill, and hence I will not spell out the exact nature of the witnessing procedures, consultations with other physicians, and waiting period which any adequate legislation requires78. There is, however, one question of the Bill’s content which has engendered substantial controversy and which cannot be left to legislative draftsmen. This is the question of who should be eligible for assisted suicide and active voluntary euthanasia, and I now turn to that.
7. Who qualifies for assisted suicide and active voluntary euthanasia?
The most conservative answer would permit assisted suicide and active voluntary euthanasia only where the patient is competent and suffering from a physical illness or impairment which is terminal and causing him severe and uncontrollable distress. But the appropriateness of these conditions can be challenged as unduly limiting the class of candidates for assisted death, and we find some such liberalization in several of the euthanasia Bills which have been proposed. For instance, the terminal condition is dropped in H.B. 342 of the Hawaii Legislature (1975): a patient only needs to be suffering from an incurable physical illness which is causing him severe distress, and so a quadriplegic would not be excluded from eligibility for assisted death. It is also possible to weaken the condition of the Hawaii Bill still further by not requiring that the illness or impairment be thought incurable, but only that either the chances of cure are remote, or the cure, even if certain, will be protracted and painful (as in the case of some burn victims, for example). Again, the nature of the illness or impairment can be widened to encompass mental as well as physical problems. H.B. 137 (1873) and H.B. 256 (1975) of the Montana Legislature and H.B. 143 of the Idaho Legislature (1969) do this, though they limit mental impairment to that rooted in a condition of “brain damage or deterioration”. However, one could suggest this be liberalized to include mental illnesses which cause the persons severe distress (such as certain forms of depression or anxiety) but which do not have any known organic basis in the brain, and for which there is no anticipated or (perhaps) speedy or easy prospects of recovery or relief. Finally, the competency requirement can be challenged, as it was by H.B. 1207 of the Wisconsin Legislature which allows for a person of seven years of age to request euthanasia. And one might suggest that if we are serious about avoiding discrimination against the mentally handicapped, this should be further liberalized to allow for requests from them as well.
Now if the question of who qualifies for assisted suicide and active voluntary euthanasia were to be settled simply by determining who has a good reason for death, there could be no doubt that eligibility for those practices should be liberalized to the hilt. Life cannot be reasonably regarded as an unconditioned good, but rather as something which is valuable only if one has the possibility of wanted experiences. Thus if a person can no longer have any experiences at all, or any wanted experiences, or if continuing to live requires unwanted experiences which overbalance the wanted experiences, then that person has a good reason to die. From this it is plain that the class of patients who have a good reason to die must include those who have non-terminal and indeed curable impairments as well as the terminal, those who have mental as well as physical impairments, and the incompetent as well as the competent.
We cannot, however, settle the question of who should be eligible for assisted death simply by settling the question of who has a good reason for death. In drafting the legislation we also have to take into account the potential for abuse and mistake to which the legislation gives rise, and both of these increase dramatically as the eligibility for assisted death is liberalized. To allow for assisted suicide and active voluntary euthanasia on children and the mentally handicapped opens up the possibility of serious abuse. And once we depart from the condition that the patient’s disorder must be physical and his death imminent, we must face an increased chance of mistaken medical diagnoses and prognoses, projections of whether the patient will adjust to his situation, and estimates on the patient’s part of what is worth what. There is staggering scope for error if we allow assisted suicide and active voluntary euthanasia for reason of mental impairment such as severe and unrelievable depression, non-terminal disorders which are permanent such as quadriplegia, and non-terminal conditions such as severe burns which are curable only after a long and painful course of treatments, and perhaps then not entirely.
We thus find ourselves pushed to a liberal answer to the eligibility question by considering who has a good reason for death, and a conservative answer by the potential for abuse and mistake, and it is not easy to choose a course of action. Legislation is largely experimental, and we cannot once and for all settle the question of what the law should be in our armchairs: we must try and see. However, with respect to the matters under discussion, we have not yet even modestly dared, and so are forced to rely on armchair theorizing with all its pitfalls.
The incompetent should be excluded from the scope of a Voluntary Euthanasia Bill on the straightforward ground that they are not capable of voluntary actions. They may be able to physically request euthanasia, but cannot do so with the kind of understanding which characterizes the voluntary. It does not follow that active euthanasia should never be applied to them, but I will not pursue this question here, for such euthanasia would be a special instance of nonvoluntary euthanasia, and the justification of that runs on quite different rails the dominant consideration is not autonomy but reduction of suffering and falls outside the scope of this paper.79
But if our Voluntary Euthanasia Bill is to be limited to the competent, it should be otherwise unlimited: I suspect we would get the best law if we allowed for assisted death as if the question of who has a good reason for death exhausted the relevant considerations. This immediately increases the possibility of abuse and error, but our choice is between exposing that flank or denying euthanasia to those who want it with good reason. My view is that the importance of preserving the autonomy of the individual in the face of suffering and indignity is so great that only enormous danger of abuse and error will be sufficient to override it, and such dangers do not seem to be present. The danger of abuse can be minimized by careful witnessing procedures, and the danger of mistaken diagnoses and prognoses by requiring the concurrence of several physicians. Mistakes of medicine and judgment will still occur, as will some abuses. But it borders on the paranoid to conjure up scenarios of abuse occurring with frequency or likelihood sufficient to cancel the proposal. If we are serious about letting competent people take control of their lives, they must be free to make decisions on the best medical advice available and their best estimates of what will be worth what, even though the possibility of mistake is an inescapable risk. If people are to be allowed to make importance decisions, they must be allowed to make important mistakes, and there is much to be said for allowing such mistakes when they are made only after careful consultation, will never be regretted, and the alternative is to take a person’s destiny out of his hands.
1. Euthanasia, Aiding Suicide and Cessation of Treatment, work pap 28, cat no J32-1/28-1982 (Ottawa: Minister of Supply and Services, 1982), pp. 43-55; Report on Euthanasia, Aiding Suicide and Cessation of Treatment, rep 20, cat no J31-40/1983 (Ottawa: Minister of Supply and Services, 1983), pp. 17-21; Some Aspects of Medical Treatment and Criminal Law, rep 28, cat no J31-48/1986 (Ottawa: Minister of Supply and Services, 1986), p. 13.
2. For a review of legislative positions on assisted suicide and active voluntary euthanasia, see Helen Silving, “Euthanasia: A Study in Comparative Criminal Law”, University of Pennsylvania Law Review, Co. 103, No. 3 (1954), pp. 350-389, on which I have relied heavily.
“In America today the forfeiture-of-goods and ignominious-burial forms of punishment have been abolished, so that no penalty attaches to a successful suicide; but some states (e.g. Alabama, Oregon and South Carolina) which retain common law crimes nevertheless speak of suicide as a `criminal’ or `unlawful’ act though, not being punishable, not strictly-speaking a crime…. In states which have abolished common law crimes… suicide can be no crime in the absence of a statute making it so…. No state has a statute making it so…. No state has a statute making successful suicide a crime.”
6. See State v. Willis, 255 N.C. 473, 121 S.E.2d. 854 (1961). North Carolina maintains attempted suicide as a misdemeanour. See also State v. Levelle, 34 S.C. 120, 12 S.E. 310 (1891). S.C. CODE ANN. secs. 17-122 (Law Co-op 1962) ascribes the common character of felony to attempted suicide.
“Whoever, from selfish motives, induces another to commit suicide or assists him therein shall be punished, if the suicide was successful or attempted, by confinement in a penitentiary for not more than five years or by imprisonment.”
“Whoever instigates another to commit suicide or reinforces his intention to do so or in any manner promotes the execution of suicide shall be punished, where the suicide is successful, by confinement from five to twelve years. Where the suicide is not successful, such person shall be punished by confinement from one year to five years, provided that the attempt at suicide results in a serious or very grave personal injury.”
New York Penal Law secs 2304, 2305 (1944) provides that assisting suicide is manslaughter in the first degree of just a felony depending on whether the suicide was successful or remained in the stage of an attempt.
9. The Texas legislature has determined that suicide is not a crime and, therefore, has decriminalized the act of assisting another in suicide. Aven V. State, 102 Tex. Crim. 478, 277 S.W. 1080 (1925). Defendant furnished the means for committing suicide but the court held no crime existed.
10. See, e.g., (1) McMahan v. State, 168 Ala. 70, 53 So. 89 (1910). Pursuant to a suicide pact, the deceased shot himself in the presence of the defendant; however, the defendant did not shoot himself. The court held that since suicide is self-murder, the defendant who encouraged was guilty as a principal to murder. Id.; (2) Burnett V. People, 204 ILL. 208, 68 N.E. 505 (1903). Both the deceased and the defendant admitted to having taken poison as a result of a suicide pact. The defendant survived. The court indicated that this would be murder on the defendants part; (3) Commonwealth v. Hicks, 118 Ky. 637, 82 S.W. 265 (1904). The court held that one who aided another in the commission of suicide was guilty of homicide as an accomplice; (4) Commonwealth v. Bowen, 13 Mass. 356 (1916). The defendant, a prisoner, advised a fellow prisoner who was to be executed the following day to “cheat” the hangman, i.e., to commit suicide. The Supreme Judicial Court instructed the jury that if the advice was the persuading element, then the fellow prisoner would be guilty of murder; (5) People v. Roberts, 211 Mich. 187 178 N.W. 690 (1920). The defendant-husband in this case prepared Paris greens (a poison) for his wife and placed it near her bedside at her request. The court convicted Roberts of murder as an accomplice to her suicide.
“The judge shall mete out punishment in accordance with the guilt of the actor; he shall consider the motives, the prior life and the personal circumstances of the guilty person.”
And article 64 allows:
“The judge may mitigate the punishment… where the actor was induced to commit the act (acted) by honourable motives…. .”
German Penal Code sec 213 provides:
“Where the manslayer was aroused to anger by ill treatment or by a grave insult inflicted upon him or upon one of his relatives without his fault by the deceased and was thereby instantly moved to commit the act, or where there are other extenuating circumstances, the punishment shall be imprisonment for not less than six months.”
“Punishment according to sections 228 and 229 (bodily injury and rendering a person unconscious) shall not be applied where the action was committed with consent of the victim. Where a person was killed or suffered considerable damage to his body or health with his own consent, or where an actor motivated by mercy takes the lives of a hopelessly ill person, or assists in such act of killing, the punishment may be reduced below the minimum fixed by statute and a milder form of penalty may be imposed.”
“A person guilty of homicide performed at the (urgent) request of the person killed and out of compassion for him shall be punished by confinement in a fortress [custodia honesta] for a term not exceeding three years.”
“Whoever kills a human being at his request and under the influence of compassion for him shall be punished by imprisonment up to five years or by detention.”
“The judges are authorized to forego punishment of a person whose previous life has been honourable where he commits a homicide motivated by compassion, induced by repeated requests of the victim.”
“To be prevented from doing what one is inclined to, or from acting according to one’s own judgment of what is desirable, is not only always irksome, but always tends, pro tanto, to starve the development of some portion of the bodily or mental, faculties, either sensitive or active….” Principles of Political Economy (London: Longmans, Green and Co., 1923), Bk. V, Ch. xi, sec. 2, p. 943.
26. The Canadian Law Reform Commission notes that a strict reading of section 199 of the CanadianCriminal Code, according to which anyone who undertakes medical treatment must continue providing it if failing to do so may threaten human life, implies that one cannot always refuse treatment. However, it argue that any treatment given against the patient’s wishes should constitute an assault in law, and recommends:
“That the ambiguity created by the provisions of section 199 of the present Criminal Code be resolved, and that the Criminal Code provide for the right of any competent person to refuse medical treatment or to ask for its suspension or termination, and that therefore no one shall be required to provide it against the patient’s wishes.” Some Aspects of Medical Treatment and Criminal Law, supra note 1, p. 17.
27. There is a vast literature on the moral significant of the killing/letting die distinction. A collection of essays airing both sides of the question is Bonnie Steinbock, ed., Killing and Letting Die(Englewood Cliffs, N.J.: Prentice-Hall, 1980). My sympathies lie with the argument first presented by James Rachels in “Active and Passive Euthanasia,” The New England Journal of Medicine, Vol. 292, No. 2 (Jan. 9, 1975), pp. 78-80, and developed further with replies to critics in his The End of Life: Euthanasia and Morality (Oxford: Oxford U.P., 1986), Chs. 7 and 8, according to which the distinction is morally irrelevant. But a full defense of this view is too complex to undertake here. It is also unnecessary, for even if one rejects that view, and hence the prima facie case for active voluntary euthanasia based on it, there are still three other arguments which will make out such a case.
28. Steven J. Wolhandler, “Voluntary Euthanasia for the Terminally Ill and the Constitutional Right to Privacy,” Cornell Law Review, Vol. 69, No. 2 (January 1984), pp. 363-383, presents this argument:
“It is legally inconsistent to honor a terminal patient’s request that life support equipment be removed, but to deny a similarly situated patient’s request for an immediate and painless end merely because a second party’s active assistance is needed to implement the latter request. Prohibiting a second party from helping a patient commit self-euthanasia by imposing legal sanctions on that party is effectively equivalent to denying the patient the right to make that decision in the first place.” (p. 369)
29. This argument is presented by Shari O’Brien, “Facilitating Euthanatic, Rational Suicide: Help Me Go Gentle into that Good Night,” Saint Louis University Law Journal, Vol. 31, No. 3 (September, 1987), pp. 655-671:
“Further, because the right to commit euthanatic suicide is constitutionally insulated from governmental intrusion, protection should extend to any third party assistance necessary to exercise that right. A corollary precept is that the dissemination of information (for example, on minimum, lethal dosages), which abets rational euthanatic suicide, also falls within the ambit of speech protected by the first amendment. In addition, the term `necessary’ assistance need not be construed parsimoniously so as to exclude all but indispensable conduct and information from others. Many candidates might never opt for rational euthanatic suicide without the moral support of loved ones.” (pp. 670-671)
See also Wolhandler, supra note 28:
“The constitutional right to privacy protects a competent terminal patient’s to determine for himself the time and manner of his death. It is inconsistent to recognize a terminal patient’s legally protected right to make a decision in favor of self-euthanasia but deny that patient the means of implementing that decision.” (p. 383)
32. The classic discussion of this classic view is David Hume, “Of Suicide,” first published posthumously in 1784. It is conveniently reprinted in Alasdair MacIntyre, ed., Hume’s Ethical Writings, (New York: Macmillan, 1965), pp. 297-306. See pp. 297-304 for Hume’s discussion of the religious arguments.
48. This objection is presented by The Canadian Law Reform Commission in Euthanasia, Aiding Suicide and Cessation of Treatment, p. 46; also by Yale Kamisar, “Some Nonreligious Ciews against Proposed `Mercy-Killing’ Legislation,” Minnesota Law Review, Vol. 42, No. 6 (1958), pp. 993-1005; see further Gregory Gelfand, “Euthanasia and the Terminally Ill,” Nebraska Law Review, Vo. 63, No. 4 (1984), pp. 759-760 (mistaken diagnosis) and p. 762 (new cures). Kamisar’s article, which was written in response to Glanville Williams’ The Sanctity of Life and the Criminal Law (London: Farber and Farber, 1958), is the locus classicus of the main objections to legalizing active voluntary euthanasia, and the Canadian Law Reform Commission relies heavily on it. Gelfand re-presses most of those objections, with some embellishments, and adds two new ones.
49. Glanville Williams replies to this objection in his reply to Kamisar, supra note 25, pp. 5-8, as does Arval A. Morris, “Voluntary Euthanasia,” Washington Law Review, Vol. 45, No. 2 (1970). Morris, a proponent of legalizing active voluntary euthanasia, replied to the mistaken diagnosis objection on pp. 259-261, and to the possiblity of new cures on pp. 261-262.
53. This is probably the most popular objection to legalizing active voluntary euthanasia. Among its many proponents are The Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, p. 46, Kamisar, supra note 48, pp. 1030-1041, and Gelfant, supra note 48, pp. 763-766. On slippery slope arguments generally, see Frederick Shauer, “Slippery Slopes,”Harvard Law Review, Vol. 99, No. 2 (1985), pp. 361-382.
68. Two useful surveys of objections and replies which cover roughly the same ground as the above are Anthony Flew, “The Principle of Euthanasia,” in A.B. Downing, ed., Euthanasia and the Right to Death (Los Angeles: Nash Publishing, 1969), pp. 30-48, and Russell, supra note 20, Ch. 8.
69. In rejecting the view that mercy killing should be accorded a special status, the Commission in itsReport on Euthanasia, Aiding Suicide and Cessation of Treatment, notes: “It should be recalled that our legal system has internal regulating mechanisms which offset the apparent harshness of the law. It is possible that in some circumstances the accused would be allowed to plead guilty to a lesser charge. We also feel that our trial system, and the conclusions and verdicts reached by our juries, should be trusted. Finally, in truly exceptional cases, the authorities already have it within their discretion to decide not to prosecute.” (pp. 19-20) A similar view is expressed by the Commission in its Euthanasia, Aiding Suicide and Cessation of Treatment, pp. 51-52. The extension of this to compassion-motivated assisted suicide would be natural. This laissez faire approach is also advocated by W.R. Matthews, “Voluntary Euthanasia: The Ethical Aspect,” in Downing, supra note 68, pp. 25, 28, and Kamisar, supra note 48, pp. 971-973. It is replied to by Williams, supra note 25, pp. 203, and Morris, supra note 49, pp. 256-257.
74. Mustafa D. Sayid, “Euthanasia: A Comparison of the Criminal Laws of Germany, Switzerland and the United States,” Boston College International & Comparative Law Review, Vol. 6, No. 2 (1983), pp. 533-562, writes that
“Motive as an element of a crime has worked well for Germany and Switzerland. Contrasting an evil motive with a beneficent or merciful motive as an element of murder raises questions concerning the purpose of making homicide a crime. The answer to these questions should prove helpful in the debate over the legal status of euthanasia. A careful approach would not legalize murder, but would acknowledge that actions of mercy are distinct from the moral reprehension normally associated with homicide.” (p. 562)
Sayid isolates three ways the experience of those countries may serve as a model to legislatures considering motive as a device for legalizing euthanasia:
“The first approach is for the legislature to vest a broad discretion in judges to classify cases within the various types of homicide based on motive. Legislatures might also enumerate in the statutes themselves particular motives deserving exceptional treatment…
“Another approach that would mitigate the circumstances of a person who practices euthanasia is to adopt the `homicide upon request’ provision of the penal codes of Germany and Switzerland. This provision would allow a mitigated sentence for homicide on the grounds that the compassion motivating the actor and the consenting plea of the deceased reduces the reprehendsibility of the act….
“The German provision of ’manslaughter with extenuating circumstances’ is another approach that the American criminal justice system could incorporate. This provision calls for a mitigation of the sentence of an individual if he commits homicide under ’extenuating circumstances’… When an individual has performed euthanasia, courts would consider the existence of the euthanasia motives as an ’extenuating circumstance’. However, if a court finds no extenuating circumstances but rather that an individual has committed murder, the court would have no reason to apply this provision.” (pp. 560-561)
76. On the history of these proposals in Great Britain and the United States, see Ronald P. Kaplan, “Euthanasia Legislation: A Survey and a Model Act,” American Journal of Law and Medicine, Vol. 2, No. 1 (1976), pp. 41-99, esp. p. 52 and following.
78. O’Brien, supra note 29, claims that the most workable schemes to ratify active voluntary euthanasia provide that the party rendering assistance may avoid liability only under the following narrow set of circumstances:
“the health of the suicide beneficiary is permanently, implacably, and seriously impaired; the beneficiary has made an informed choice to terminate his or her life and is, by clear and convincing evidence, legally competent to understand the dimensions of ’this momentous decision’; the incurable’s decision is truly voluntary and not the product of coercion or undue influence; the third party’s rendition of assistance is benignly motivated.” (pp. 665-666)
Wolhandler, supra note 28, suggests the following guidelines:
(1) the patient must be terminally ill; (2) the decision must be voluntary; (3) the patient must be legally competent; (4) the patient’s decision must be informed; and (5) to further evidence voluntariness, the doctor must prescribe the least active means to effectuate death. (pp. 381-382)
I discuss the outstanding disagreement between O’Brien and Wolhandler over whether the patient’s condition must be terminal in the next section.
79. One may argue that the incompetent should be excluded from active euthanasia of any sort on the ground that need for it is less. The incompetent, whether they be minors or the handicapped, frequently do not have feelings of degradation at the loss of physical or mental functioning and the betubed, sedated, and dependent states in which the dying often find themselves. Nor do they always have the acute horrors of anticipation which typically afflict those in full possession of their faculties. Since the withholding of medical treatment, together with suitably aggressive palliative measures, generally brings about an acceptable death, and since allowing active euthanasia on the incompetent substantially increases the possibility of mistake and wrongdoing, we may well be tempted to categorically condemn the practice. On the other hand, patients do not always die a gentle and easy death when medical treatment is withheld, and then we are faced with the choice between keeping them alive contrary to their interests, letting them die of starvation and dehydration, or practicing active euthanasia; and sometimes the last is the most humane for all concerned. When it is, it is arguable that it should be permitted, and hence that there are occasions on which the incompetent are entitled to death on request (as well as sometimes without it).